P. v. Daniels
Filed 5/8/13
P. v. Daniels CA2/2
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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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND APPELLATE
DISTRICT
DIVISION TWO
>
THE PEOPLE, Plaintiff and Respondent, v. TREYVON LAMAR DANIELS, Defendant and Appellant. | B232949 (Los Angeles County Super. Ct. No. MA049018) |
APPEAL from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County. John Murphy,
Judge. Affirmed and remanded.
Joseph R. Escobosa, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Lance E. Winters, Assistant Attorney General, James William
Bilderback II and Tita Nguyen, Deputy Attorneys General, for Plaintiff and
Respondent.
Defendant
and appellant Treyvon Lamar Daniels (defendant) appeals from the judgment
entered after he was convicted of second
degree robbery and second degree commercial burglary. He contends that his sentence must be
reversed because he did not expressly waive his href="http://www.fearnotlaw.com/">right to a jury trial on the allegation
he sustained a prior juvenile adjudication.
Defendant also contends that the trial court was not authorized to
impose a five-year sentence enhancement due to the prior href="http://www.mcmillanlaw.com/">juvenile adjudication. We conclude that defendant forfeited his right
to challenge the denial of a jury trial, but was not harmed by the denial in
any event as we agree the five-year enhancement should not have been imposed. Therefore we strike the enhancement and
remand the matter to the trial court for the opportunity to resentence
defendant. We otherwise affirm the
judgment.
BACKGROUND
Defendant
stole a bottle of vodka from a drugstore liquor department. As he fled the store, a knife fell from his
pocket. The assistant manager pursued
defendant, but allowed defendant to continue his escape after it appeared to
the assistant manager that defendant might cause him harm. As a result, defendant was charged with
second degree robbery in violation of Penal Code section 211href="#_ftn1" name="_ftnref1" title="">[1] (count 1) and second degree commercial
burglary in violation of section 459 (count 2).
The amended information also alleged that defendant had committed a
felony as a juvenile, and that the juvenile adjudication qualified as a
“strike†within the meaning of the “Three Strikes†law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)). A prior
juvenile adjudication was also alleged for purposes of the five-year sentence
enhancement of section 667, subdivision (a)(1).href="#_ftn2" name="_ftnref2" title="">[2]
Defendant
pled not guilty and denied the prior juvenile adjudications. The trial court suspended the proceedings
pursuant to section 1368, and reinstated them after finding defendant competent
to stand trial, which went forward on November
9, 2010. On November 19, 2010, after the jury
found defendant guilty of both counts as charged, the trial court excused the
jury without it ever addressing the issue of the prior juvenile
adjudications. The record discloses no
request to bifurcate the proceedings and no admission or jury trial waiver of
the juvenile adjudications. After the
jurors left the courtroom, the trial court scheduled sentencing and a court
trial on the prior convictions for December
14, 2010. Defendant then
filed a Romero motion,href="#_ftn3" name="_ftnref3" title="">[3] requesting the court dismiss his prior strike
conviction.
On December 14, 2010, the parties
appeared, but the hearing was not reported.
The trial court’s minutes reflect that defendant entered a time waiver
and the court continued the following matters:
the hearing on the Romero
motion; sentencing; and a court trial of the prior juvenile adjudications. On April
20, 2011, the trial court expressed its (mistaken) belief that
defendant had waived his right to a jury trial on the issue of prior juvenile
adjudications and that they were found true after a bench trial. The trial court denied the >Romero motion and sentenced defendant to
prison for a total term of nine years, comprised of the low term of two years
on count 1, doubled as a second strike, plus five years pursuant to section
667, subdivision (a)(1). As to count 2,
the trial court imposed the low term of two years in state prison, doubled as a
second strike but stayed pursuant to section 654. The court imposed mandatory fines and fees,
and awarded 406 days of presentence custody credit.
On April 28, 2011, defendant filed a href="http://www.fearnotlaw.com/">notice of appeal. The trial court then discovered its error,
recalled defendant to court, and on June
29, 2011, conducted a court trial on the issue of defendant’s prior
juvenile adjudications. After hearing
the evidence, the court found true one of the allegations of sustained juvenile
adjudication, and imposed the same sentence, using the juvenile prior conviction
as both a strike and to imposed the five-year prison enhancement.
DISCUSSION
Defendant seeks reversal on the
ground that he never expressly waived his right to a jury trial on the truth of
the allegations of prior juvenile adjudications. Respondent contends that defendant’s failure
to object to a court trial, despite several opportunities, resulted in
forfeiture of the right.
In their
original briefs, neither party mentioned the timing of the trial on the prior
juvenile adjudications, conducted after the notice of appeal was filed. The general rule is that “[t]he filing of a
valid notice of appeal vests jurisdiction of the cause in the appellate court
until determination of the appeal and issuance of the remittitur. [Citations.]â€
(People v. Perez (1979) 23
Cal.3d 545, 554.) Matters that do not
affect the judgment of conviction and that are not embraced by the pending
appeal may be tried after the filing of the notice of appeal. (People
v. Schulz (1992) 5 Cal.App.4th 563, 570-571.) That is not the case here, as defendant’s
only contentions on appeal relate to the sentence.
The
trial court conducted the hearing on the juvenile adjudications after recalling
defendant’s sentence under section 1170, subdivision (d)(1), which gives the
trial court 120 days within which to recall a sentence and resentence the
defendant to a term no greater than the original sentence. Since we found no published opinion in which
a sentence was recalled under section 1170, subdivision (d), for the purpose of
conducting a trial on prior convictions, prior adjudications, or sentence
enhancements which were the subject of a pending appeal, we invited further
briefing on whether the trial court retained jurisdiction over the matter.
Neither
party has submitted authority directly addressing this issue. In his supplemental brief, defendant invokes
the general rule and contends that the trial court lost subject matter
jurisdiction upon the filing of the notice of appeal. (See People
v. Perez, supra, 23 Cal.3d at p.
554.) Respondent contends that the trial
court properly exercised its power, as section 1170, subdivision (d)(1),
created “an exception to the common law rule that the court loses resentencing
jurisdiction once execution of sentence has begun. [Citations.]â€
(Dix v.
Superior Court (1991) 53 Cal.3d 442, 455 (Dix).)
Defendant
points out that the trial court did not simply resentence him after the notice
of appeal was filed, but held a trial, which is not generally permitted after
the notice of appeal and prior to the issuance of the remittitur. (See People
v. Saunoa (2006) 139 Cal.App.4th 870, 871-873.) We agree that section 1170, subdivision (d)
does not permit recall of sentence to conduct a new trial on the issue of guilt
while an appeal is pending. (>People v. Alanis (2008) 158 Cal.App.4th
1467, 1475-1476 (Alanis).) However, as respondent notes, the authority
cited by defendant did not involve section 1170, subdivision (d), and the trial
court did not conduct a new trial on the issue of guilt in this case. In addition, the California Supreme Court has held that so
long as the trial court acts within the statute’s 120-day time limit, it
retains the power to “recall a sentence on its own motion for >any reason rationally related to lawful
sentencing.†(Dix, supra, 53 Cal.3d at p. 456,
italics added.) Respondent argues that
determining the truth of a prior juvenile adjudication for the purpose of
sentencing under the Three Strikes law is rationally related to sentencing.
We find
that respondent has the better argument.
While Dix did not address the
precise issue presented here, the Supreme Court made clear that once a sentence
is recalled, the trial court may consider factors and circumstances that arose
after the original sentencing, so long as the defendant is afforded “‘all the
normal rights and procedures available at his original sentencing [citations]’
. . . .†(Dix, supra, 53 Cal.3d at pp. 460, 463.) It follows that the trial court may hear
evidence to determine how or whether to modify the original sentence. We conclude that the trial court acted properly
in recalling defendant’s sentence to conduct a trial on the existence of the
prior juvenile adjudications, and we turn to defendant’s contention that the
court was required to afford him a jury trial.
First,
defendant argues that his right to a jury trial on the truth of his prior
juvenile adjudications was guaranteed by the state and federal constitutions as
well as statute, and that because he did not expressly waive his right to a
jury trial, the trial court’s true findings are void and his sentence must be
stricken. The right to a jury trial on a
prior conviction used to aggravate a sentence is statutory. (§ 1025; see § 1158.) It is not guaranteed by the California
Constitution (People v. Vera (1997)
15 Cal.4th 269, 277) or the United States Constitution. (People
v. Black (2007) 41 Cal.4th 799, 818-819; see Apprendi v.
New Jersey
(2000) 530 U.S. 466, 490, 496 (Apprendi);
Almendarez-Torres v. United States
(1998) 523 U.S. 224, 239-244 (Almendarez-Torres).)href="#_ftn4" name="_ftnref4" title="">[4] Nor do either the state or the federal
constitution require a jury trial as to the fact of a prior juvenile
adjudication when used to aggravate an adult sentence. (People
v. Nguyen (2009) 46 Cal.4th 1007, 1024, 1026-1027.)
A
defendant may forfeit his right to challenge the denial of a jury trial by
failing to object to the court trial.
(See People v. French (2008)> 43 Cal.4th 36, 46.) Here, after the jury was excused, the trial
court proposed scheduling a court trial for the following week, and stated that
defendant had “waived his right to a jury on the other issue.†Defense counsel responded, “Sure.†The court then opted to wait for a probation
report and scheduled the sentencing for a later time. At the first sentencing hearing, when the
court erroneously indicated that defendant had waived a jury trial on the prior
juvenile adjudication and that the trial court had found it true after a href="http://www.mcmillanlaw.com/">bench trial, defense counsel made no
comment. The trial court then gave
counsel the opportunity to argue defendant’s Romero motion. Both sides
submitted the issue without argument and the court denied the motion after
explaining that it “decline[d] to strike [defendant’s] sustained petition for
the 211 robbery.†Defense counsel then
said, “I’m sorry. As to the >Romero motion, your Honor, my
understanding is that he actually -- his sustained petition is [section]
245(a)(1). I don’t think it was
211.†The prosecutor responded she had
proof of defendant’s sustained juvenile petition based upon section 211, and
that she had given the proof to defense counsel. The trial court agreed and added, “We had a
court trial. Remember?†“A petition was sustained on the robbery, the
211. That was the whole point of having
a trial on that issue.†Counsel did not
object or correct the court’s observation.
We
conclude that defendant’s failure to object in the trial court, despite several
opportunities to do so, resulted in a forfeiture of the issue on appeal. (See People
v. French, supra, 43 Cal.4th at
p. 46; People v. Vera, >supra, 15 Cal.4th at p. 277; >People v. Saunders (1993) 5 Cal.4th 580,
589-590.) Respondent contends that even
if the issue had not been forfeited, any error would be harmless. We agree.
The erroneous denial of a right to a jury trial on prior conviction
allegations is reviewed for harmless error under the standard of >People v. Watson (1956) 46 Cal.2d 818,
836, which asks whether it is reasonably probable that a result more favorable
to defendant would have been reached absent the error. (People
v. Epps (2001) 25 Cal.4th 19, 29 (Epps).)
As in >Epps, the error could not possibly have
affected the result, as official government documents presumptively established
the prior juvenile adjudication and defendant did not claim otherwise. (See Epps,
supra, 25 Cal.4th at pp. 29-30; Evid.
Code, § 664.) The prosecution presented
certified records in compliance with section 969b consisting of a juvenile
petition alleging robbery and two counts of assault, a minute order showing
that the petition was sustained based on evidence of robbery, a fingerprint
card with defendant’s date of birth, and a booking photograph. The trial court found the photograph to
depict defendant, and a fingerprint expert testified that he took an impression
of defendant’s thumb prints, compared them to the prints in the juvenile
record, and found them to match. Defense
counsel asked no questions of the prosecution witnesses, and did not object to
the admission of the section 969b materials.href="#_ftn5" name="_ftnref5" title="">[5]
Thus a reversal of the entire sentence is not
required. As the five-year sentence
enhancement of section 667, subdivision (a)(1) may not be imposed based on a
prior juvenile adjudication, we strike that enhancement. (See
People v. West (1984) 154 Cal.App.3d 100, 108-110; People v. Blankenship (1985) 167 Cal.App.3d 840, 852.) We remand the matter only to give the trial
court the opportunity to reconsider the entire sentence so long as the total
term is not greater than the original total sentence. (See People
v. Castaneda (1999) 75 Cal.App.4th 611, 614-615.)
DISPOSITION
The five-year sentence enhancement imposed pursuant to
section 667, subdivision (a)(1), is stricken, and the matter is remanded to the
trial court for resentencing. In all
other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
___________________________,
J.
CHAVEZ
We concur:
____________________________, P. J.
BOREN
____________________________, J.
ASHMANN-GERST