P. v. Valdez

P. v. Valdez

Filed 8/11/08 P. v. Valdez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, Plaintiff and Respondent, v. VINCENT VALDEZ, Defendant and Appellant.

E042769 (Super.Ct.No. SWF015591) OPINION

APPEAL from the Superior Court of Riverside County. Rodney L. Walker, Judge. Affirmed with directions.

Dean E. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, Collette C. Cavalier and Marisa A. Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant Vincent Valdez appeals from convictions for resisting an executive officer (Pen. Code, 69), carrying a concealed dirk or dagger (Pen. Code, 12020), and transportation of a controlled substance. (Pen. Code, 11379.) He asserts errors relating to the courts refusal to bifurcate the on-bail enhancement (Pen. Code, 12022.1) from the trial of the substantive charges, and argues the trial court failed to instruct the jury on the proper mental state for a conviction for resisting an executive officer.

1. Background

On March 5, 2006, Riverside County Deputy Sheriff Alonso Tovar made a traffic stop of an automobile because it lacked a front license place. He approached the driver of the vehicle, who was the defendant, and was told the defendants name was John Lopez. Deputy Tovar noticed the ignition of the vehicle had been tampered with and that a screwdriver had been inserted into the ignition. Deputy Tovar asked the defendant if he had any weapons on his person, and the defendant indicated he had a knife; the defendant placed the knife on the dashboard of the vehicle in compliance with the deputys instructions. When the deputy told him he should not have a concealed knife, the defendant shrugged in acknowledgment, but the deputy subsequently found three additional folding knives on his person.

The defendant consented to a search of the car, which led the deputy to discover a plastic bag containing methamphetamine under the front passenger seat. The defendant was arrested and advised of his Miranda rights. (Miranda v. Arizona (1966) 384 U.S. 436 [86 S.Ct. 1602, 16 L.Ed.2d 694].) Defendant told the deputy that the methamphetamine belonged to him and that the passenger did not know it was there.

After placing defendant under arrest, the deputy learned defendants true name was Vincent Valdez and that he was out on bail pending felony charges of vehicle theft and receiving stolen property. Defendant became agitated at learning his true identity had been discovered, and began banging the passenger window of the police car with his handcuffs, which were handcuffed behind him. Despite being told to stop, defendant persisted in efforts to break the window, eventually succeeding in kicking out the right rear passenger window and shattering it. Deputy Tovar used pepper spray on defendant, but this did not deter defendant from trying to crawl out the broken window.

Deputy Tovar threatened to use his baton on defendant if defendant did not get back into the vehicle, but defendant said, Hit me. Deputy Tovar struck defendant approximately two times, defendant returned to his seat in the vehicle, where the deputy restrained defendants legs and requested additional backup. Defendant told the deputy that by the time anybody arrived, there would be an 1199, which is police code indicating that an officer is down.

Following a pretrial order dismissing one count of criminal threats (Pen. Code,  422), defendant was charged with three counts: resisting an executive officer (Pen. Code, 69), carrying a dirk or dagger (Pen. Code, 12020), and transporting a controlled substance. (Health & Saf. Code, 11379.) It was further alleged that the crimes were committed while defendant was released on bail for another felony case (Pen. Code, 12022.1), and that he had served three prior prison terms (Pen. Code, 667.5, subd. (b)), and one prior serious or violent felony within the meaning of the Strikes law. (Pen. Code, 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).

The jury returned verdicts on the three substantive counts, as well as the on-bail enhancement. In a separate court trial, the defendant admitted two prison priors and the Strike upon the Peoples agreement to strike one of the prison priors. Prior to sentencing, defendant requested that the court exercise its discretion to strike the Strike (People v. Superior Court (Romero) (1996) 13 Cal.4th 497), but that request was denied. Probation was denied and the defendant was committed to state prison for a term of 12 years eight months in state prison, including a two-year term for the on-bail enhancement.

2. Discussion

A.     Denial of the defense request to bifurcate the on-bail enhancement from the trial of the substantive charges was not an abuse of discretion.

Prior to jury selection, defense counsel requested that the on-bail enhancement allegation be bifurcated from the trial of the substantive crimes. The court refused. Defendant argues the courts refusal constituted reversible error.^[1]

Penal Code section 12022.1 permits the imposition of a two-year enhancement if the defendant commits an offense (secondary offense) while released on bail or own recognizance pending trial or appeal on another charge (primary offense). The People must charge the enhancement in the information or indictment charging the secondary offense (the offense committed by the defendant while released on bail or own recognizance). (Pen. Code, 12022.1, subd. (c).) Unless admitted by the defendant, the People must prove the truth of the enhancing allegation at trial. (People v. Adams (1993) 6 Cal.4th 570, 572-573.)

A trial court has the discretion, in a jury trial, to bifurcate the determination of the truth of alleged enhancements. (Pen. Code, 1044; People v. Cline (1998) 60 Cal.App.4th 1327, 1333 [bifurcated for trial of prior convictions].) The authority to bifurcate a prior conviction allegation also permits a court to bifurcate other enhancements. (People v. Hernandez (2004) 33 Cal.4th 1040, 1049.) But permits is not synonymous with requires. Defendant suggests reversal is required because the court was unaware it had discretion to bifurcate, and that if the trial court had properly apprehended and applied the law, it would have realized it was required to bifurcate. We disagree. The authorities relied upon by defendant relate to a defendants right to bifurcate the issue of prior conviction allegations. (See People v. Bracamonte (1981) 119 Cal.App.3d 644.)

Contrary to appellants suggestion, the right to a bifurcated trial on the issue of prior convictions (People v. Calderon (1994) 9 Cal.4th 69, 75-76) does not give rise to a correlative right to bifurcate the trial of other enhancements. A request to bifurcate a charged enhancement is akin to a motion to sever the charge. Yet a denial of severance is not error unless a defendant clearly establishes there is a substantial danger of prejudice requiring that the charges be separately tried. (People v. Arias (1996) 13 Cal.4th 92, 127.) Joinder is otherwise proper when the offenses are cross-admissible in separate trials. (People v. Davis (1995) 10 Cal.4th 463, 509.)

Penal Code section 1044 vests the trial court with broad discretion to control the conduct of a criminal trial. (People v. Calderon, supra, 9 Cal.4th at pp. 74-75.) We review the trial courts denial of a motion to bifurcate for abuse of discretion. (People v. Hernandez, supra, 33 Cal.4th at p. 1048.) An abuse of discretion may be found when the trial courts ruling falls outside the bounds of reason. (People v. Bradford (1997) 15 Cal.4th 1229, 1315.)

Here, the evidence of the on-bail enhancement charge would be cross-admissible in separate trials. The evidence of the other pending felony case was relevant and admissible to explain the manner in which the sheriffs deputy discovered defendants true identity and the reason for the defendants violent attempt to escape the patrol vehicle. Unless the defendant was willing to admit the enhancement, the People were required, and entitled, to present evidence to prove the elements of the allegation that defendant was on bail at the time of the commission of the offense in order to prove the allegation. (Apprendi v. New Jersey(2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435].) The defendant has not met his burden of establishing an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 376.) In any event, the issue was rendered moot when the defendant subsequently entered into a formal stipulation that he was on bail at the time of the commission of the current (secondary) offense.

Nevertheless, because the defendant was subsequently convicted of a misdemeanor, rather than a felony, in the primary offense, case No. SWF012017, the imposition of two years for the enhancement at the time of sentencing was unauthorized.^[2] We direct the trial court to permanently stay the term for the enhancement, and direct the clerk to amend the minutes and abstract of judgment to reflect that stay.

B.     Failure to instruct on the definition of specific intent with respect to the crime of resisting an executive officer was not error where the Peoples theory of the case did not rely on the attempt clause of Penal Code section 69.

Defendant argues that the trial court erred in failing to instruct the jury that specific intent was an element of one form of violation of Penal Code section 69. We disagree.

Penal Code section 69 makes it a felony for any person to attempt, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon such officer by law, or to knowingly resist, by the use of force or violence, such officer in the performance of his duty. Section 69 defines two separate offenses: The first punishes an attempt by means of threat or violence to deter a police officer from performing his or her lawful duty. The second punishes the knowing resistance, by force or violence, of an officer in the performance of a lawful duty. (In re Manuel G. (1997) 16 Cal.4th 805, 814.) The first clause, or the attempt-to-deter offense, has been deemed a specific intent crime. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1531.) The second clause constitutes a general intent offense. (People v. Roberts (1982) 131 Cal.App.3d Supp.1, 9.)

Classification of crimes into specific intent or general intent is necessary only to determine whether a defense of voluntary intoxication or mental disease, defect, or disorder is available, or certain evidence is admissible. (People v. Hering (1999) 20 Cal.4th 440, 446-447.) While an assault is defined as an attempt to batter, it is deemed a general intent crime. (People v. Williams (2001) 26 Cal.4th 779, 782.) The attempt to deter genre of resisting an officer is similar in nature; thus, the courts instructions regarding the elements of the crime adequately conveyed the necessary intent to commit the offenses. (People v. Hering, supra, at p. 447.) But the People did not rely on that theory.

There was extensive discussion of the need to instruct on specific intent with respect to the Penal Code section 69 violation, and defense counsel asked if the court agreed that count 1 was a specific intent crime because both instructions had been pulled. The court indicated that it would depend on how the People chose to proceed. After lengthy discussion, the prosecutor stated that the defendant was tried under the theory he was in fact resisting an executive officer from the performance of his duty, not attempting to deter him. The court agreed that the crime of resisting the officer had already been committed when the comment, which formed the basis for the attempt-to-deter theory [that there would be an 1199], was made.

Because the People elected to proceed[] on just resisting arrest, force and violence. . . . the court found there was not enough evidence to support the specific intent crime if thats the way the People wanted to proceed. Therefore, the court decided not to give the specific intent instruction, and the prosecutors argument to the jury focused solely on the resisting arrest language of the statutory offense set forth in the second clause of section 69. The court apparently instructed the jury by reading a version of CALJIC No. 3.30, regarding the joint operation of act and general intent, as well as CALJIC No. 7.50, defining the statutory offense.^[3] The verdict form included only the resisting arrest portion of the statute, for which only general intent is required, and the prosecutors argument made it clear that the People were basing the charge on the resisting arrest genre. There was no error in failing to instruct on specific intent.

3. Disposition

The court is directed to modify the sentence to strike or stay the enhancement for the on-bail enhancement. As modified, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Ramirez

P. J.

s/McKinster

J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] Alternatively, defendant argues that if trial counsel failed to move for bifurcation, that failure constituted ineffective assistance of counsel. Because we conclude defense counsel adequately preserved the issue, we do not need to reach the claim of ineffective assistance of counsel.

^[2] According to the online docket () for Case No. SWF012017, the defendant pled guilty to misdemeanor receiving stolen property (Pen.Code, 496, 17, subd. (b)) in the primary offense, and was sentenced to 270 days, with credit for 270 days served, on March 2, 2007. The defendant was sentenced in the current case on March 23, 2007, by the same judge who took the defendants plea in case No. SWF012017.

^[3] We say apparently because the written instruction included in the clerks transcript has blanks that have not been filled in as to the specific count or charge, and the oral instructions were not reported, as required. (People v. Bradford(2007) 154 Cal.App.4th 1390, 1419, fn. 16.)