P. v. Baltazar





















Filed 10/15/12
P. v. Baltazar CA5



















NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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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opinion has not been certified for publication or ordered published for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

FIFTH APPELLATE DISTRICT


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THE PEOPLE, Plaintiff and Respondent, v. SURGIO VALENCIA BALTAZAR, Defendant and Appellant.

F062476 (Super. Ct. No. MF49001) >OPINION

THE COURThref="#_ftn1"
name="_ftnref1" title="">^*

APPEAL from
a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Merced
County. Marc A. Garcia, Judge.

Alex
Coolman, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Catherine Chatman and A. Kay
Lauterbach, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

After using a firearm in the commission of two carjackings, Surgio
Valencia Baltazar falsely identified himself to the arresting officer and
admitted possession of the firearm.href="#_ftn2" name="_ftnref2" title="">^[1] A jury found him guilty of
two counts of carjacking, two counts
of felon in possession of a firearm, and one count of href="http://www.mcmillanlaw.com/">false identification to a peace officer. The jury found the firearm allegation in each
carjacking count true. On appeal, he
challenges the proof of his felony prior at trial and the calculation of his
fees at sentencing. We order the
correction of two fees but otherwise we affirm the judgment.

BACKGROUND

On November 7, 2008, an information charged Baltazar with two counts of
carjacking (counts 1 & 3; Pen. Code, § 215, subd. (a)),href="#_ftn3" name="_ftnref3" title="">^[2] one on June 30, 2008, the other on July 3,
2008; with two counts of felon in possession of a firearm (counts 2 & 4;
former § 12021, subd. (a)(1)), one on June 30, 2008, the other on July 3, 2008;
and with one count of false identification to a peace officer (§ 148.9, subd.
(a)) on July 3, 2008. The information
alleged his personal use of a firearm in the commission of both
carjackings. (§ 12022.53, subds. (a)(5),
(b).)

On January 15, 2009, the jury found Baltazar guilty as charged and found
both firearm allegations true. At his
probation and sentencing hearing on March 20, 2009, the court issued a bench
warrant for his arrest due to his escape from jail. On May 9, 2011, after he was back in custody,
he received an aggregate sentence of 18 years:href="#_ftn4" name="_ftnref4" title="">^[3]

· On count 1, the mitigated term of three
years for carjacking (§ 215, subd. (b)) plus the statutory term of 10 years for
the firearm enhancement (§ 12022.53, subd. (b));

· On count 2, a concurrent midterm of two
years for felon in possession (former §§ 18, 12021, subd. (a)(1));

· On count 3, a consecutive term of one
year eight months (one-third the midterm) for carjacking (§ 215, subd. (b))
plus a term of three years four months (one-third the statutory term) for the
firearm enhancement (§ 12022.53, subd. (b));

· On count 4, a concurrent midterm of two
years for felon in possession (former §§ 18, 12021, subd. (a)(1)); and

· On count 5, a concurrent term of six
months for false identification to a peace officer (§§ 19, 148.9, subd. (a)).

DISCUSSION

1. Proof of Felony Prior

Baltazar argues
that an insufficiency of the evidence of felon in possession is in the
record.
The Attorney General argues that an accurate characterization of
the issue Baltazar raises is not insufficiency of the evidence but court error,
that he forfeited his right to judicial review by his
failure to object and, alternatively, that he invited error by agreeing to
judicial notice and by objecting to the sole instruction that would have put
that issue before the jury.

At an
off-the-record colloquy, the prosecutor put the case numbers of Baltazar’s
receiving stolen property priors on the record and stated, “At the appropriate
time, we’ll ask for judicial notice.”
Baltazar’s attorney inquired, “Well, Your Honor, in connection with the
judicial notice, what does the court intend?,” and clarified his query by
stating, “I need to know what statement the jury would hear.” The court responded , “Exactly,” and asked
the prosecutor, “What exactly are you going to introduce?” The prosecutor replied, “Your Honor, we’ll
ask the court to take judicial notice that he was convicted of a felony,
496(a), on October 18, 2005. That’s
it.” Baltazar’s attorney said, “That’s
fine. I can live with that statement.” The court stated, “Yeah, that’s fine. All right,” and began the evidentiary phase
of the trial.

At an
instructional colloquy after both parties rested, Baltazar’s attorney made
reference to CALCRIM No. 3100 (“Prior Conviction: Non-Bifurcated Trial”) and stated, “I’m going
to make an objection later when [Baltazar] comes in. That’s the priors.” He opined that the instruction applied not to
“a prior conviction situation” but rather to “a prison prior, the one-year
enhancement, the five-year enhancement and the strike priors and priors that
–,” at which point the court interjected, stating that the instruction “says
you must decide whether the evidence proved whether the defendant was convicted
of the alleged crimes” and that “there is not another prior conviction
instruction, but I agree that there are – that this doesn’t exactly fit.”

The prosecutor
argued, “[CALCRIM No.] 2510 [(“Possession of Firearm by Person Prohibited”)]
includes convicted of a felony, and that’s the only other instruction that even
has any reference to previous convictions.
If [Baltazar’s attorney] is willing to live with 2510 and get rid of
3100, we’re okay with it, but I don’t see any alternative that is included in
[the pattern instructions].” Baltazar’s
attorney stated, “I agree to that. You
have to give 2510.” The court observed,
“Yes, but 2510 is just the generic instruction on that the defendant has
previously been convicted of a felony, and I believe that the jury, or that the
defendant is entitled to have that issue decided by the jury. Don’t you think so?” Baltazar’s attorney replied, “Correct.”

“So if you – so if
you – if the jury has to decide whether, in fact, he has been convicted of a
felony,” the court stated, “you have to give some version of 3100, which is
basically the instruction about whether that [sic] it is their responsibility to find out whether he’s been
convicted of a felony. I admit that the
first part of the introduction [sic]
is not exactly –,” and Baltazar’s attorney interjected, “Right. It –,” and the court continued, “It doesn’t
exactly fit, but I don’t – but it’s the only one that covers a prior conviction
for the jury. It’s the only one that
does that. This is right out of
CalCrim.”

Baltazar’s
attorney argued, “Your Honor, here’s what I think is revealing, and that’s in
the title where it says non-bifurcated trial.
If you remember last Tuesday you called us up and asked, you know,
whether or not we’re going to bifurcate, and I just agreed we can’t. You know, this is not a bifurcation
situation.” The court stated, “I agree
with that. No, you can’t.” Baltazar’s attorney continued, “It’s an
element of the crime, and that was presented to you by both sides, and I just
think this has to do with priors. And,
in fact, the whole issue of, you know, where it talks about the court has
already determined the defendant is the person –,” to which the court
interjected, “Yes.” Baltazar’s attorney
added, “I don’t think that that applies because that certainly applies to prior
convictions when you’re talking about does he have a strike.” The court responded, “You are right, and
there’s a bunch of case law on that. You
are right.”

The prosecutor
opined, “Your Honor, I agree that CalCrim 3100 originally had been intended for
the use of priors.” The court stated,
“Well, yes, that’s exactly right. It
doesn’t really fit the situation.” The
prosecutor commented, “To my knowledge, there’s no – there’s no authority to
suggest that the court cannot include this.
However, that being said, we’re okay with getting rid of it.” The court mused, “I’m not sure I should,
though. That’s the problem. Because the jury must decide as part of the
elements of this crime whether he has, in fact, suffered that conviction. Don’t you think?”

The prosecutor
replied, “That’s true, Your Honor. I
think, however, 2510 covers that.
Defendant had previously been convicted of a felony. Those are common [sic] used words.” Baltazar’s
attorney replied, “Uh-huh. Yeah.” The court inquired of Baltazar’s attorney if
he would “agree that 3100, because it doesn’t really fit the situation,
shouldn’t be given?,” to which he replied, “Shouldn’t be given at all.” The court stated, “Should not be given, and
you agree that you would 1ive with it not being given?,” to which the
prosecutor responded, “We’ll live with it.”
The court stated, “All right. It
will go out.” The prosecutor added,
“That’s fine, Your Honor.”

On the issue of
judicial notice, the record shows a brief colloquy afterward about whether the
court should allow the prosecutor to reopen his case-in-chief on the issue of
Baltazar’s felony prior. Baltazar’s
attorney commented, “Your Honor, I appreciate the court’s already considering
that it’s going to allow [the prosecutor] to reopen to bring in the
prior.” The court stated, “Yes.” Baltazar’s attorney continued, “For the
record, we’re objecting. We presented –
you know, we opened, we called a witness, we presented evidence, we rested, and
this is not in rebuttal to anything that we presented, and we just don’t think
the court should, at this time, grant leave to allow it to reopen.” The court replied, “I understand your
objection.” The prosecutor argued, “Your
Honor, for the record, this is more in the nature of introduction of evidence
rather than testimony. The jury can
decide what to do with it because we will only be asking for the court to take
judicial notice of its own files and we’ll offer no testimony on it.” The court stated that, even though the
prosecutor, “technically speaking,” had “rested,” his omission was “an honest
oversight,” not an attempt “to take advantage.” On that ground, the court ruled, as an
exercise of judicial discretion, that the prosecutor could reopen.

In the presence of
the jury, the prosecutor requested that the court “take judicial notice of its
own court file” that Baltazar “was convicted on October 18th of 2005 of
receiving stolen property, a violation of Section 496(a) of the Penal Code, a
felony.” The court granted his request
and instructed the jury with, inter alia, CALCRIM No. 2510 on the crime of
felon in possession.href="#_ftn5"
name="_ftnref5" title="">^[4] In argument to the jury,
the prosecutor noted that he had “asked that the judge take judicial notice of
the fact” that on “October 18, 2005, [Baltazar] was convicted of a felony,
receiving stolen property. You’ll
receive that judicial notice. You should
take it as fact. If the judge,” he
concluded, “finds something, takes judicial notice of it, you must consider it
as if it were proved.” On both counts of
felon in possession, the jury found Baltazar guilty.

In briefing here,
the parties draw opposing inferences from the record. Informed of the prosecutor’s intent to make a
later request for “judicial notice that [Baltazar] was convicted of a felony,
496(a), on October 18, 2005,” his attorney replied, “That’s fine. I can live with that statement.” The Attorney General argues that the dialogue
shows “an agreement [that] was tantamount to a stipulation to an evidentiary
fact.” Baltazar argues that the dialogue
shows that his attorney “was saying that he could ‘live with’ a judicial notice
request that did not include too much extraneous detail,” not “that he could
‘live with’ judicial notice of the ultimate fact of the conviction.” He asserts that the court’s later observation
that “the jury must decide as part of the elements of this crime whether he
has, in fact, suffered that conviction” is inconsistent with the understanding
“that the question of the felony conviction was to be conclusively determined
via judicial notice.” Likewise, he
contends that the prosecutor’s later comment that “the jury can decide what to
do with it because we will only be asking for the court to take judicial notice
of its own files” is inconsistent with the notion that “judicial notice was to
conclusively determine the existence of the felony conviction.”

The decision
whether to reopen a criminal matter for the admission of additional evidence is
within the broad discretion of the
court. (People v. Jones (2012) 54 Cal.4th 1, 66.) The Penal Code codifies not only the order of
proceedings in a criminal trial “unless otherwise directed by the court” (§
1093) but also the exception that, “for good reasons, and in the sound
discretion of the court, the order prescribed in Section 1093 may be departed
from” (§ 1094).

At his
arraignment, Baltazar learned that his felony prior was at issue. “On October 18, 2005, in violation of section
496(a) of the California Penal Code,” the information alleged, he was “duly and
legally convicted of a felony, to wit:
receiving stolen property.” Once
both parties had rested, the prosecutor asked for permission to reopen on the
issue of the felony prior. Characterizing
the prosecutor’s omission as “an honest oversight,” not an attempt “to take
advantage,” the court granted his request.
“It shall be the duty of the judge to control all proceedings during the
trial,” the Legislature has decreed, “with a view to the expeditious and
effective ascertainment of the truth regarding the matters involved.” (§ 1044.) The rule that a court has
“broad discretion to order a case reopened and allow the introduction of
additional evidence” is “well settled.”
(People v. Goss (1992) 7
Cal.App.4th 702, 706.) “If the judge
does not discover that a matter should be judicially noticed until after the
cause is submitted for decision, he [or she] may, of course, order the cause to
be reopened for the purpose of permitting the parties to provide him [or her]
with information concerning the matter.”
(Law Rev. Comm. comment to Evid. Code, § 455, subd. (a).) The court has the statutory authority to take
judicial notice of its own records.
(Evid. Code, § 452, subd. (d)(1).)
The record fails to persuade us that Baltazar’s attorney’s agreement to
judicial notice or objection to CALCRIM No. 3100 had any effect on the court’s
exercise of that authority.

“‘No error results
from granting a request to reopen in
the absence of a showing of abuse.’” (>People v. Riley (2010) 185 Cal.App.4th
754, 764.) As the record persuades us
that the court’s order granting the request to reopen was not an abuse of
discretion, there was, as a matter of state law, no error. Baltazar
argues that the court’s order was a denial of due process, but the premise of
his constitutional claim is that the
court’s order was error, so his due process claim likewise fails. (People
v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3.)href="#_ftn6" name="_ftnref6" title="">^[5]

2. Calculation of Fees

Baltazar argues,
the Attorney General agrees, and we concur that errors in the
calculation of two fees at sentencing require correction.
First, Baltazar suffered six criminal convictions since January 1, 2009,
the effective date of Government Code section 70373, which
authorizes the imposition of an assessment of $30 each, for a total of $180,
but the abstract of judgment incorrectly shows a total of $240. (See People v. Cortez (2010) 189 Cal.App.4th 1436, 1443; >People v. Davis (2010) 185 Cal.App.4th
998, 1000-1001.) Second, he suffered
seven criminal convictions while Penal Code section 1465.8 authorized the
imposition of a fee of $20 each, for a total of $140, and one more while the
statute authorized the imposition of a fee of $40 each, for a grand total of
$180, but the abstract of judgment incorrectly shows a grand total of
$320. (See People v. Alford (2007) 42 Cal.4th 749, 754.) We order correction of the calculation of
both fees.

DISPOSITION

The matter is remanded to superior
court with directions (1) to impose a total
Government Code section 70373 assessment of $180 instead of $240, (2) to impose
a total Penal Code section 1465.8 fee of $180 instead of $320, (3) to so amend the abstract of judgment, and (4) to send a certified copy of
the amended abstract of judgment to the href="http://www.mcmillanlaw.com/">Department of Corrections and Rehabilitation. Baltazar has no right to be present at
those proceedings. (See People v.
Virgil (2011) 51 Cal.4th 1210, 1234-1235.)
In all other respects, the judgment is affirmed.