target="F063498_files/props0002.xml">
P. v. DeFrance
Filed 7/9/13 P.
v. DeFrance CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ERNEST JARMONE DeFRANCE,
Defendant and
Appellant.
F063498
(Tulare
Super. Ct. No. VCF245895)
APPEAL from
a judgment of the Superior Court of
County. James W. Hollman, Judge.
Peggy A.
Headley, 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, Julie A. Hokans and Galen N.
Farris, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant
contends that the trial court and clerk failed to comply with Penal Code
section 1149, which requires that the jury be asked whether
they have agreed upon their verdict.
(§ 1149.) We do not reach
the merits of this contention, because defendant forfeited any claim of section
1149 error by failing to object below.
(See People v. Anzalone (2013)
56 Cal.4th 545 (Anzalone).)
Defendant
also claims, and the People concede, that there was insufficient evidence to
sustain the trial court’s true finding with respect to his prior strike. We agree.
Finally,
defendant argues that the court erred in using the same conviction to enhance
and aggravate his sentence. This
contention lacks merit.
Therefore,
we will reverse with respect to the prior strike finding only, and remand for
possible retrial on that issue.
Defendant
was charged with assault with a deadly
weapon (count I – § 245, subd. (a)(1)) and misdemeanor
first amended information (the information).
The information further alleged two
prior serious felony convictions (§ 667, subd. (a)(1)), two prior
prison terms (§ 667.5, subd. (b)), and two section 1203, subdivision
(e)(4) convictions all based on the same two prior Oregon convictions: felony unlawful sexual penetration (see O.R.S.
§ 163.411) and attempted felony sexual abuse (see O.R.S. §§ 163.427 &
161.405, subd. (a).)
name="_ftnref3" title="">[2] It was further alleged that the Oregon felony
unlawful sexual penetration conviction qualified as a prior strike
(§§ 1170.12, subds. (a)-(i) & 667, subds. (b)-(i).)
An alleged grand theft conviction
(§ 487) on September 4, 2008, in Tulare County was the basis for a third
prior prison term allegation (§ 667.5, subd. (b)), and a third
section 1203, subdivision (e)(4) allegation.
A jury trial commenced in August
2011, and the jury found appellant guilty as charged. The following proceedings were had:
“THE
COURT: All right. We’re back on the record. It’s the Court’s understanding the jury
reached a verdict. [¶] Is that correct? Who’s the foreperson?
“JUROR []: Yes.
“THE
COURT: If you’ll hand the verdict forms
to the bailiff, please. [¶] All right. I will have my clerk read the
verdicts.â€
“THE
CLERK: Tulare County Superior Court,
State of California. Visalia
Division. The People of the State of
California versus Ernest Jarmone Defrance.
Case Number VCF 245895. Verdict
Form. [¶] We, the jury, find defendant guilty as
charged in Count 1 of the complaint of assault with a deadly weapon, a
violation of Penal Code Section 245(a)(1), a felony, against Rolando
Martinez. Dated August 31, 2011. Signed the foreperson. [¶]
Title of court and cause. We, the
jury, find the defendant guilty of Count 2 of the complaint of simple battery,
a violation of Penal Code Section 242, a misdemeanor, against Andrew Gonzalez. Dated August 31st, 2011. Signed the foreperson.
“THE
COURT: Do you wish the jury to be
polled?
“[DEFENSE
COUNSEL]: No, your Honor.â€
The record reflects no objection by
defense counsel on section 1149 grounds. There was then a discussion wherein defendant
ultimately waived his right to a jury on the prior convictions portion of the
bifurcated trial. The court then
discharged the jury. The record reflects
that no juror spoke at any time after the clerk read the verdict.
and other Special Allegations
A court trial was held regarding
the special allegations in the information.
The matter was tried solely on documentary
evidence submitted by the prosecution, which included: defendant’s “Oregon
969(b) Packetâ€; a facsimile from the Jackson County District Attorney’s Office,
defendant’s “California 969(b) Packetâ€; the change of plea form, judgment and
indictment from the Oregon case; and a printout of CALCRIM 1045.
The change of plea form in the
Oregon case indicates that defendant pled guilty to attempted sexual abuse in
the first degree (see O.R.S. §§ 163.427 & 161.405, subd. (a)) and
attempted unlawful sexual penetration in
the first degree (see O.R.S. § 163.411).
The judgment reflects resultant convictions on both counts.
At the conclusion of the trial, the
court stated: “The Court has reviewed
the complaining document as well as the judgment, and it appears to the Court
that it’s identical with Penal Code Section 289(a), attempted penetration by
force, which is a 1192.7 crime, which is a serious crime, which means that it
is a strike.â€
Defendant was sentenced on October
3, 2011.
Near the beginning of the hearing,
the trial court indicated, “It looks to me like there’s a basis to
aggravate.†The court noted that,
“[a]ccording to the probation report, he’d been out on parole for something
like twelve days and he committed a new crime.
To me, that’s aggravated.â€
Defense counsel indicated that defendant had mental health issues and
was off his medications. The prosecutor
requested 15 years, rather than the 14 years recommended by the probation
report.
The court stated: “This defendant was barely out of prison when
he committed this new offense, and it was a great – a crime of great violence,
and he’s a danger to the community. He’s
out for twelve days and he’s chasing somebody around with a piece of
glass. [¶] I am going to order the aggravated term of
eight years on that basis, plus an additional five years pursuant to 667(a),
plus an additional one year pursuant to 667.5, for a total term of 14 years.â€
The court later stated, “[t]he
other 667.5(b) allegation, the punishment is stricken in the interest of
justice.â€
ANALYSIS
I.
1149 ERROR BY FAILING TO OBJECT IN THE TRIAL COURT
Defendant
contends that the court’s failure to strictly comply with section 1149 was
structural error, requiring reversal. He
contends that the doctrines of forfeiture, substantial compliance and
harmlessness do not apply to section 1149 errors. Respondent contends that all three doctrines
do apply to section 1149 errors.
After briefing was completed in
this case, the California Supreme Court settled these issues in
our purposes, it is sufficient to note that Anzalone
held that “a defendant who does not object to the trial court’s failure to
comply with section 1149 forfeits the argument that the trial court
erred.†(Id. at p. 551)
Here, defendant did not object in
the trial court, and thereby forfeited any claim of section 1149 error. (Anzalone,
supra, 56 Cal.4th 545.)
II.
DEFENDANT’S
FELONY
Defendant
argues, and the People concede, that there is insufficient evidence to support
the trial court’s finding that defendant’s 2006 Oregon conviction for attempted
unlawful sexual penetration was a serious felony under California law. We agree.
A
conviction in another jurisdiction will qualify as a serious felony if
California punishes the offense with imprisonment in state prison, and the
offense “includes all of the elements of a particular violent felony as defined
in subdivision (c) of Section 667.5 or serious felony as defined in subdivision
(c) of Section 1192.7.†(§ 667,
subd. (d)(2).) There are two ways
to establish a foreign conviction as a serious felony. If the statutory definition of the foreign
crime contains all of the necessary elements to meet California’s definition of
a serious felony, then the foreign crime is a serious felony. (People
v. Crane (2006) 142 Cal.App.4th 425, 433.)
Or, if the admissible evidence in the record of the foreign conviction
shows that the underlying conduct would have constituted a qualifying offense
in California, then the foreign crime is a serious felony. (Ibid.)
Here, the
trial court found that defendant’s Oregon conviction was analogous to a
conviction under section 289, subdivision (a).
However, neither the statutory elements of the Oregon crime, nor the
record of the Oregon conviction, establish the requirements for deeming a
foreign conviction a serious felony under section 667. (§ 667, subds. (a)(1) &
(d)(2).)
Contain All of the Necessary Elements to Meet California’s Definition of
Penetration With a Foreign Object
California’s version of penetration
with a foreign object requires a specific intent to accomplish “sexual arousal,
gratification, or abuse.†(§ 289,
subd. (k)(1). See also
765, 776.) Oregon’s version contains no
such element. (See O.R.S.
§ 163.411.) The Oregon statute
states:
“(1) Except as
permitted under ORS 163.412, a person commits the crime of unlawful sexual
penetration in the first degree if the person penetrates the vagina, anus or
penis of another with any object other than the penis or mouth of the actor
and:
“a. The victim is subjected to forcible
compulsion;
“b. The victim is under 12 years of age; or
“c. The victim is incapable of consent by
reason of mental defect, mental incapacitation or physical helplessness.
“(2) Unlawful
sexual penetration in the first degree is a Class A felony.†(O.R.S. § 163.411.)
By its plain language, the statute contains
no specific intent requirement. In
contrast, other Oregon sex crime statutes do include a specific intent
requirement. (See, e.g., O.R.S.
§§ 163.427, subd. (b) & 163.415, subd. (b).) Because the Oregon Legislature clearly knew
how to draft sex crime statutes with specific intent requirements, we can
reasonably infer that its failure to include such a requirement in O.R.S.
§ 163.411 was intentional. (See
495. See also Royal Aloha Partners v. Real Estate Div. (1982) 59 Or.App. 564, 569
[noting that had the legislature intended a particular statutory effect, it
could have worded the statute differently to accomplish that effect].)
We note that defendant pled to
violation of O.R.S. § 163.411. But
this does not change the effect of the discrepancy between the intent
requirements in the California and Oregon versions of the predicate
offenses. California’s sectio
(§ 289, subd. (a)), which is a penetration done “for the purpose of
sexual arousal, gratification, or abuse.â€
(§ 289, subd. (k)(1).)
To be guilty of attempt under California law, “a defendant must harbor
the specific intent to accomplish all elements of the completed
offense .…†(People v. Bright (1996) 12 Cal.4th 652, 687, overruling on another
ground recognized by People v. Seel (2004)
34 Cal.4th 535, 541. See also
§ 21a.) Thus, to be guilty of
attempted forcible penetration in California, the defendant would need to
harbor specific intent to penetrate the victim “for the purpose of sexual
arousal, gratification or abuse.â€
(§ 289, subd. (k)(1).)
Attempted unlawful sexual
penetration in Oregon would not require this type of intent. In Oregon, “[a]n attempt to commit the crime
requires only that the defendant intentionally engage in conduct constituting a
substantial step towards the commission of the crime.†(State
v. Sears (1984) 70 Or.App. 537, 539.)
Thus, under Oregon law, a defendant could commit attempted unlawful
sexual penetration without acting with the purpose of “sexual arousal,
gratification, or abuse,†as required under California law.
Because Oregon’s version of the
crime does not contain all of the necessary elements to meet California’s
definition of attempted penetration with a foreign object, we must continue to
the second step of our analysis. We now
look to the admissible evidence in the record of the foreign conviction to
determine whether the underlying conduct would have constituted a qualifying
offense in California. (
p. 433.)
Not Establish that the Underlying Conduct Would Have Constituted the Qualifying
Offense of Penetration with a Foreign Object Under California Law
Defendant pled guilty to the
charge of attempted unlawful sexual penetration. The plea form indicates that the factual
basis for the plea was the “DA Indictment.â€
count in the indictment reads: “COUNT 3
[¶] The defendant, on or about
April 11, 2006, in Jackson County, Oregon, did unlawfully and intentionally, by
forcible compulsion, attempt to penetrate the vagina of [the victim], with an
object, to – wit: defendant’s finger[.]â€
penetration was performed “for the purpose of sexual arousal, gratification, or
abuse,†which is required to establish a violation under California law. (See § 289, subd. (k)(1).)
Neither the elements of the foreign
crime, nor the record of the foreign conviction establish that defendant
committed a serious felony under section 667, subdivision (d)(2). The trial
court’s finding to the contrary was error.
DEFENDANT
DOES NOT ESTABLISH REVERSIBLE
INEFFECTIVE
ASSISTANCE OF COUNSEL
Defendant next argues that none of
the factors cited by the sentencing judge were proper grounds for imposing an
aggravated sentence, and his counsel’s failure to object thereto was
ineffective assistance.
Defendant contends that the trial
court improperly used the same conviction to impose sentence enhancements and
an aggravated sentence on the substantive charge. Defendant argues that “when the trial court
stressed that appellant had been out of prison for 12 days when he committed
the crime … [it] amounted to punishing appellant yet again for his recidivism
and therefore was a prohibited ‘dual use’.…â€
However, when the trial court stated
that defendant “was barely out of prison when he committed this new offense,â€
it was not relying on the prior conviction as a basis for aggravation. Rather, the court was relying on the temporal
proximity between defendant’s release from prison and his commission of a
crime. “Nothing in the rules prohibits
the court from relying upon the relationship of the prior conviction to the
present offense as an aggravating consideration, even where the fact of the
offense itself could not be used.†(
904, 911.)
Moreover, parole status is an
aggravating factor distinct from prior convictions or prior prison terms. (People
v. Yim (2007) 152 Cal.App.4th 366, 369.
See also People v. Jerome (1984)
160 Cal.App.3d 1087, 1098-1099.)
Defendant relies on our decision in
People v. McFearson (2008) 168
Cal.App.4th 388 (McFearson), in
claiming an erroneous dual use of facts occurred here. McFearson
is distinguishable. In
prior conviction to both impose an aggravated sentence and enhance the
defendant’s sentence by one year under section 667.5, subdivision (b). (McFearson,
supra, 168 Cal.App.4th at p.
395.) Conversely, “[h]ere, the trial
court imposed the upper term based not on appellant’s prior prison term, but on
his status as a parolee and his unsatisfactory performance on parole.…†(People
v. Yim, supra, 152 Cal.App.4th at
p. 369.)
Defendant’s Release from Prison Before Commission of New Crime is Subject to
Harmless Error Review
Even if it had been error for the
court to cite this particular ground for aggravation, any such error was
harmless. The consideration of improper
factors is not necessarily fatal to a sentence.
(People v. Price (1991) 1 Cal.4th
324, 492, called into doubt on other grounds by People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1165.) “When a trial court has given both proper and
improper reasons for a sentence choice, a reviewing court will set aside the
sentence only if it is reasonably probable that the trial court would have
chosen a lesser sentence had it known that some of its reasons were
improper. [Citation.]†(People
v. Price, supra, 1 Cal.4th at p.
492.)
And, a single factor in aggravation
is sufficient to justify a sentencing choice.
(People v. Brown (2000) 83
Cal.App.4th 1037, 1043.)
Here, the trial court relied on at
least three proper aggravating factors:
defendant posed a danger to society, defendant was on parole when the
violation occurred and defendant performed unsatisfactorily on parole. (Cal. Rules of Court, rule 4.421 (b)(1) &
(b)(4) & (b)(5).)
At sentencing, the trial court
stated that defendant was a danger to the community. Defendant contends that the trial court’s
reliance on the “danger to the community†factor (Cal. Rules of Court, rule
4.421 (b)(1)) was improper. He contends
that “[o]ne could argue that anyone convicted of a felony is a ‘danger to the
community.’ â€
First, we note that defendant’s
argument would apply to anyone sentenced to an upper term under rule 4.421
(b)(1). Thus, defendant’s contention is
a facial attack on the propriety of the danger-to-society factor
altogether. He is essentially suggesting
that danger-to-society should not be a factor because the prosecution simply
points to the fact that the defendant before the sentencing judge is, by
definition, a felon. But, absent some
constitutional infirmity, we have no occasion to pass on the wisdom of
sentencing factors properly established pursuant to legislative directive. As we explained in People v. Cooper (1996) 43 Cal.App.4th 815:
“The choice of
fitting and proper penalty is not an exact science but a legislative skill
involving an appraisal of the evils to be corrected, the weighing of practical
alternatives, consideration of relevant policy factors, and responsiveness to
the public will.… Thus, the judiciary
should not interfere in the process unless a statute prescribes a penalty
‘ “out of all proportion to the offense.†’ [Citation.]â€
(Id. at p. 827.)
The Judicial Council’s inclusion of
the danger-to-society factor in the rule 4.421 list was the type of
sentencing-related policy decision with which we will not interfere. The Judicial Council acted pursuant to express
authority from the Legislature.
(§ 1170.3, subd. (a)(2).)
Our Supreme Court has already determined this delegation of power was
constitutional. (See generally
705.) Thus, the trial court’s
consideration of these sentencing factors promulgated by the Judicial Council –
including the danger-to-society factor – was not only permissible, it was
mandatory. (See § 1170, subd.(a)(3)
[“In sentencing the convicted person, the court shall apply the sentencing
rules of the Judicial Council.â€]; People
v. Wright, supra, 30 Cal.3d at
p. 710 [“The Judicial Council adopted Sentencing Rules for the Superior
Courts. [Citations.] The trial court must consider the criteria enumerated in the rules .…†(Italics added.)]) It was not error for the court to consider
this sentencing factor.
Not only was the court’s evaluation
of this factor appropriate, its resultant conclusion was as well. Contrary to the suggestion implicit in
defendant’s argument, there is no indication that the trial court’s reliance on
the danger-to-society factor was based merely on the fact that defendant had
committed any felony. To the contrary, the court stated: “[H]e’s a danger to the community. He’s out for twelve days and
glass.†(Italics added.) The court cited the specific circumstances of
defendant’s offense in determining he presented a danger to society. The trial court did not abuse its discretion
in concluding defendant posed a danger to society.
Danger to the Community was not too Vague and Editorial to Have Meaning
Defendant also argues that the
court’s “reference to a ‘danger to the community’ †is “too vague and
editorial to have meaning.†But the
trial court did not simply utter the phrase “danger to the community†and
proceed to pronounce the sentence. The
court stated: “… he’s a danger to the
community. He’s out for twelve days and he’s chasing somebody around with a piece
of glass. [¶] I am going to order the aggravated term of
eight years on that basis .…â€
(Italics added.) Thus, the court
unambiguously explained why it believed the defendant was a danger to society.
Defendant argues that “the trial
court’s actual reasons for imposing the upper term when sentencing appellant
did not refer to appellant being on parole.â€
But, at the sentencing hearing, the trial court stated: “According to the probation report, he’d been
out on parole for something like twelve days and he committed a new crime. To me, that’s aggravated.â€
qualify as one of the trial court’s “actual reasons.†The sentencing judge stated in “simple
language†the “factors that support the exercise of discretion.†(Rules of Court, rule 4.406(a).) He did so “orally on the record.†(Ibid.) “Defendant does not point out why this
statement was inadequate nor does he explain what more, in his view, the [Rules
of Court] demand[].†(
The
judgment is reversed to the extent it is based on a finding that defendant’s
July 19, 2006, Oregon conviction was a prior serious felony conviction and
strike. In all other respects, the judgment is affirmed. On remand, the
prosecution may retry the affected allegation if it so chooses. (People
v. Roberts (2011) 195 Cal.App.4th 1106, 1133-1134.) The prosecution shall have 30 days after the
remittitur is filed in which to give notice of its intent to seek retrial of
the prior conviction allegation. If the
prosecution gives such notice, the court shall conduct further proceedings in
accordance with this opinion. If the
prosecution fails to give such notice, or if the prior conviction is not proven
on retrial, the court shall resentence defendant. (See People
v. Henley (1999) 72 Cal.App.4th 555, 566-567.)
Poochigian, J. and Detjen, J.
All subsequent statutory references are to the Penal Code unless otherwise
indicated.
