P. v.
Filed 1/24/13 P. v. Dixon CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
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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opinion has not been certified for publication or ordered published for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 DIXON,
JR.,
Defendant and
Appellant.
F061858
(Super.
Ct. No. BF131596A)
THE COURT
name="_ftnref1" title="">*
APPEAL from
a judgment of the Superior Court
of
Michael
Allen, 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, and Raymond L. Brosterhous II,
Deputy Attorney General, for Plaintiff and Respondent.
-ooOoo-
On April 29, 2010, an information was
filed in Kern County Superior Court, charging defendant Ernest Dixon, Jr., with
petty theft with multiple theft-related prior convictions (Pen. Code,
burglary (§ 460, subd. (b); count 2).
It was further alleged defendant was previously convicted of first
degree burglary (§ 460, subd. (a)), which constituted a serious or violent
felony for purposes of the “Three Strikes†law (§§ 667, subds. (c)-(j),
1170.12, subds. (a)-(e)), and that he previously served five separate prison
terms (§ 667.5, subd. (b)). On
June 24, 2010, following a jury trial, defendant was convicted as
charged. After a court trial, the strike
and four prior prison term allegations were found to be true.
On February 3, 2011, the trial court
refused to dismiss the prior strike conviction, and sentenced defendant to a
total of 10 years in prison, calculated as six years (the upper term, doubled
for the strike) on count 1, plus one year for each of the prior prison term
enhancements.
title="">[3] Defendant was ordered to pay various fees,
fines, and assessments. He was awarded
308 days of actual credit, plus 154 days of conduct credit, for a total of 462
days. He now challenges his sentence in
general, and the award of custody credits in particular. We affirm.
FACTS
At about 2:00 p.m. on April 2, 2010, Benny Cathay, a loss prevention agent for
Rite Aid, was on duty when he observed defendant in the store. Defendant was carrying an empty blue shopping
basket and acting like a normal customer, except he was walking a bit fast and
had something white sticking out of his pocket.
As Cathay watched, defendant proceeded through
the store and put several toiletry items in the basket. Defendant then stood by the hair care aisle
for a moment, looked toward the front door, waited, and then pulled the white
item, which turned out to be an opaque plastic bag, from his pocket. He moved the items from the blue basket into
the plastic bag, set the basket on the ground, and proceeded toward the store
exit. He looked over the end of the
aisle toward the cashiers, then walked toward the exit doors without paying for
the items.
Cathay
confronted defendant as defendant went past the first of two sets of
doors. When Cathay
identified himself, asked for the items back, and asked defendant to come back
in the store for processing, defendant tried to hand the bag to Cathay,
then dropped it at Cathay’s feet, and ran through the
second set of doors and out of the store.
Cathay alerted Officer Verion Coleman, who caught
up to defendant and arrested him about four blocks away. After defendant was advised of and waived his
rights, he explained that he had run because Cathay was
going to call the police. When Coleman
asked if he shoplifted from the Rite Aid, defendant said he had seen some items
he needed, so he took them. Defendant
also said he had purchased candy earlier in the day, and that was how he had obtained
the white bag. A search of defendant
turned up a wallet but no money.
Cathay
subsequently recovered the items in the bag, which never actually left the
store. They had a total price of just
over $27.
DISCUSSION
I
of Sentence
Defendant
contends his 10-year sentence constituted an abuse of discretion, because it
punished him for exercising his constitutional right to a jury trial. He asks that we vacate his sentence and
remand the matter “for a sentence that reflects the [trial] court’s indicated
sentence and that does not punish [defendant] more harshly because of his
decision to exercise his constitutional rights.â€
A. Procedural History
At the
April 16, 2010, prepreliminary hearing, defendant rejected the prosecution’s
offer of a plea to count 1, with a strike prior, and a midterm sentence of four
years. Defendant’s deputy public
defender countered with an offer of dismissal.
At the conclusion of the preliminary
hearing, defense counsel argued the evidence showed defendant had no
intent to commit a felony upon entering the store; moreover, there was no
evidence of asportation. Defendant was
held to answer. At the June 11, 2010, trial confirmation
hearing, defendant — now represented by a different deputy public defender —
rejected an offer of six years.
On June 23, 2010, the matter was
discussed in chambers when the case was assigned to the trial court.
offense a misdemeanor pursuant to section 17.
Because defendant was on parole for a first degree burglary conviction
suffered in 2006 or 2007, however, the trial court stated it would not be
inclined to dismiss the strike conviction.
In light of the small loss involved in the current case, the court said
the lowest offer it would indicate would be 32 months, which would be the low
term on either count, doubled for the strike.
As set out
28, 2010, prior to the court trial on the prior conviction allegations,
defendant claimed ineffective assistance of trial counsel based on counsel’s
failure to inform him of the elements of the charged crimes. As a result, and at defendant’s request, a
attorney had never given him specific information on the instructions regarding
the elements of the crime, particularly intent and “mindset,†and he asked for
a retrial or at least “to entertain the possibility of the original plea
offer .…†In response to the
court’s inquiry, defense counsel related that, although she had no specific
recollection, it was her practice and custom to tell her clients of the
charges, and usually also to go through the police report. Asked if she also went over the elements of
the charges, counsel responded, “I go through the charges, Your Honor. For this case, I probably said ‘petty theft
with a prior.’ I don’t know. I don’t recall specifically whether or not I
went into the specific details of the offense or the elements of the
offense.†Counsel conceded that she had
showed defendant the jury instruction, setting out the specific elements of a
petty theft charge, during jury selection.
Defendant asserted that had he been aware of the intent element, he
would have taken the plea agreement: He
had the bag of items, showing intent, and whether he stayed in the store was
irrelevant. The court denied the request
to remove trial counsel.
After
trial, the court relieved the public defender’s office and appointed a member of
the Indigent Defense Program (IDP) to represent defendant. The court directed the IDP attorney to
determine if filing a motion for a
retrial or for a new trial was appropriate.
After
several continuances, defendant was sentenced on February 3, 2011.
several circumstances in aggravation (defendant’s prior convictions as an adult
were numerous, defendant was on parole when the crimes were committed, and
defendant’s prior performances on probation and parole were unsatisfactory),
the probation officer’s report (RPO) recommended imposition of the upper base
term, doubled for the prior strike, plus four years for the prior prison term
enhancements, for a total of 10 years in prison. Defendant claimed to be a longtime drug
addict, and requested drug court or, alternatively, for the court to dismiss
his prison priors in order to lower his sentence to six years and make him
eligible for California Rehabilitation Center (CRC) consideration. The prosecutor opposed the request. She argued defendant had numerous prior
convictions, with this case being his eighth conviction for violating section
666; he had a total of 15 theft convictions, including one for
on parole for that conviction when he committed the present offenses; and he
had violated probation at least three times and parole at least eight
times. She further argued that despite a
record extending back to the 1980’s, only two convictions were
drug-related. In response, defendant
asked the court to dismiss his prior strike conviction and some of his prison
priors, to give him an opportunity for CRC.
The prosecutor again opposed the request.
In light of
defendant’s lengthy record and the fact he was on parole when the present
offenses were committed, the trial court declined to dismiss defendant’s prior
strike conviction. The court also found
defendant’s statements to the probation officer, and at the time of his arrest,
to be inconsistent with his requests for treatment for drug problems or the
notion a drug problem had anything to do with the present offenses. The court found no circumstances in
mitigation and three in aggravation (those listed in the RPO), and imposed the
upper base term of six years, enhanced by four years pursuant to section 667.5,
subdivision (b).
B. Analysis
Defendant
now contends imposition of a 10-year prison term constituted an abuse of
discretion because it punished him for exercising his constitutional right to a
jury trial. The Attorney General says
the issue was forfeited by defendant’s failure to raise it at sentencing and,
in any event, it finds no support in the record.
“The
forfeiture doctrine is a ‘well-established procedural principle that, with
certain exceptions, an appellate court will not consider claims of error that
could have been — but were not — raised in the trial court. [Citation.]’
[Citations.] Strong policy
reasons support this rule: ‘It is both
unfair and inefficient to permit a claim of error on appeal that, if timely
brought to the attention of the trial court, could have been easily corrected
or avoided. [Citations.]’ [Citation.]â€
(People v. Stowell (2003) 31
Cal.4th 1107, 1114.) The forfeiture
doctrine applies to sentencing. (See
353, 356.)
In
649, the defendant claimed the trial court violated his due process rights, as
set out in North Carolina v. Pearce (1969)
395 U.S. 711, 723-726, by imposing a greater sentence following remand than was
originally imposed. The appellate court
found the issue forfeited by the defendant’s failure to object when the greater
sentence was imposed. (
pp. 654-657.)
By parity
of reasoning, we conclude defendant’s claim has also been forfeited by his
failure to object, on the ground now raised, when the trial court imposed the
10-year term. “‘“‘The law casts upon the
party the duty of looking after his legal rights and of calling the judge’s
attention to any infringement of them.
If any other rule were to obtain, the party would in most cases be
careful to be silent as to his objections until it would be too late to obviate
them, and the result would be that few judgments would stand the test of an
appeal.’â€â€™ [Citation.]†(People
v. Saunders (1993) 5 Cal.4th 580, 590.)
If defendant here had objected, the trial court could have articulated
the basis for the difference in sentences, and obviated any concern defendant
was being punished for exercising his right to a jury trial.
Nevertheless,
we proceed to the merits of the claim (see People
v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6; People v. Williams, supra, 61 Cal.App.4th at p. 657) and find
no cause for reversal.
As the
California Supreme Court has explained,
“It is
well settled that to punish a person for exercising a constitutional right is
‘a due process violation of the most basic sort.’ [Citation.]
The constitutional right to trial by jury in criminal prosecutions is
fundamental to our system of justice [citations]; thus, we have stated that
‘only the most compelling reasons can justify any interference, however slight,
with an accused’s prerogative to personally
decide whether to stand trial or to waive his rights by pleading guilty.’ [Citation.]
‘A court may not offer any inducement in return for a plea of guilty or
nolo contendere. It may not treat a
defendant more leniently because he foregoes his right to trial or more harshly
because he exercises that right.’
[Citation.]
“…
[T]he refusal of an accused to negotiate a plea with the prosecution must not
influence the sentence imposed by the court after trial. Appellate courts in California and in other
jurisdictions have vacated sentences when the trial court has apparently used
its sentencing power, either more severely or more leniently than the norm, in
order to expedite the resolution of criminal matters. [Citations.]â€
(In re Lewallen (1979) 23
Cal.3d 274, 278-279.)
Nothing in
the record, other than the fact the sentence imposed exceeded the sentence
mentioned by the court prior to trial and rejected by defendant, even arguably
gives rise to an inference defendant was being penalized for exercising his
right to a jury trial. (Contrast, e.g.,
pp. 279-280 & cases cited; People
v. Morales (1967) 252 Cal.App.2d 537, 542-544 & fn. 4.)
following trial defendant received a more severe sentence than he was offered
during plea negotiations does not in itself support the inference that he was
penalized for exercising his constitutional
rights.†(People v. Szeto (1981) 29 Cal.3d 20, 35.) Indeed, “it is clear that under appropriate
circumstances a defendant may receive a more severe sentence following trial
than he would have received had he pleaded guilty; the trial itself may reveal
more adverse information about him than was previously known.†(In re
Lewallen, supra, 23 Cal.3d at p. 281.)
Here, the
RPO revealed defendant had a much more extensive criminal record than was
apparent from the information.
name="_ftnref9" title="">[8] In addition, although the trial court knew
before trial that defendant was on parole at the time of the present offenses,
the RPO revealed numerous past probation and parole violations. Thus, even assuming the same number and kind
of aggravating factors were known to the trial court when it discussed imposing
a 32-month term as were known to it at the time of sentencing, the RPO
furnished information rendering those factors qualitatively different than
originally realized.
“Judicial
tribunals, proceeding within their proper jurisdiction, are deemed to have
acted rightly, impartially, and honestly [citation].†(People
v. Hood (1956) 141 Cal.App.2d 585, 591.)
Moreover, “[i]t is presumed that official duty has been regularly
performed.†(Evid. Code,
§ 664.) “As an aspect of the
presumption that judicial duty is properly performed, we presume … that the
court knows and applies the correct statutory and case law [citation] and is
able … to recognize those facts which properly may be considered in the
judicial decisionmaking process.
[Citations.]†(
529, 644, overruled on another ground in Price
v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) These rules apply to sentencing issues. (People
v. Mosley (1997) 53 Cal.App.4th 489, 496.)
“Generally,
determination of the appropriate term is within the trial court’s broad
discretion [citation] and must be affirmed unless there is a clear showing the
sentence choice was arbitrary or irrational [citation]. ‘Sentencing courts have wide discretion in
weighing aggravating and mitigating factors [citations], and may balance them
against each other in qualitative as well as quantitative terms.’ [Citation.]
One factor alone may warrant imposition of the upper term [citation] and
the trial court need not state reasons for minimizing or disregarding
circumstances in mitigation [citation].â€
(People v. Lamb (1988) 206
Cal.App.3d 397, 401.) “‘The burden is on
the party attacking the sentence to clearly show that the sentencing decision
was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial
court is presumed to have acted to achieve legitimate sentencing objectives,
and its discretionary determination to impose a particular sentence will not be
set aside on review.’ [Citation.]†(People
v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
The record
before us contains nothing to rebut the presumption the trial court acted
properly in sentencing defendant to 10 years in prison. Rather, the increased sentence is readily
explained by the information concerning defendant’s past conduct that came to
light after trial. Accordingly, we
reject defendant’s claim he was punished for exercising his constitutional
right to a jury trial.
name="_ftnref10" title="">[9]
II
Custody Credits
Because
defendant had a prior strike conviction, at both the time his current crimes
were committed and the date he was sentenced, he was entitled to presentence
custody credits in an amount such that six days were deemed to have been served
for every four days he spent in actual custody.
(§ 4019, former subds. (b)(2), (c)(2) & (f), as amended by
Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50, eff. Jan. 25, 2010; see also
§ 2933, former subd. (e), added by Stats. 2009-2010, 3d Ex. Sess., ch. 28,
§ 38, eff. Jan. 25, 2010.) Defendant
was awarded credits calculated by means of this formula.
After
defendant was sentenced, but while his appeal was pending, the relevant
statutes were amended. References to
section 4019 and calculation of presentence credits were deleted from section
2933. (Stats. 2011-2012, 1st Ex. Sess.,
ch. 12, § 16, eff. Sept. 21, 2011, operative Oct. 1, 2011.) Subdivision (f) of section 4019 was amended
to provide: “It is the intent of the
Legislature that if all days are earned under this section, a term of four days
will be deemed to have been served for every two days spent in actual
custody.†(§ 4019, subd. (f), as
amended by Stats. 2011, ch. 15, § 482, eff. Apr. 4, 2011, operative Oct.
1, 2011, & Stats. 2011, ch. 39, § 53, eff. June 30, 2011, operative Oct.
1, 2011.) Thus, section 4019 now
provides for day-for-day credits for all defendants — including those with
prior strike convictions — who serve presentence time in county jail. The only exceptions are defendants with
current violent felony or murder convictions.
(§§ 2933.1, 2933.2; see People
v. Nunez (2008) 167 Cal.App.4th 761, 765.)
Defendant
now contends he is entitled to presentence custody credits calculated pursuant
to current sections 2933 and 4019. As an
initial matter, we do not believe we can properly make any determination with
respect to calculation under section 2933 at this juncture. The California Department of Corrections and
Rehabilitation (CDCR) is the entity charged with calculating a prisoner’s
credit under that statute. (
781; see People v. Brown (2012) 54
Cal.4th 314, 321, fn. 8, 322-323, fn. 11 (Brown);
In re Pacheco (2007) 155 Cal.App.4th
1439, 1441; In re Tate (2006) 135
Cal.App.4th 756, 759-760.) An assertion
the CDCR violated former section 2933 by failing to award additional
credits does not identify an error in the judgment on review; rather, “[s]uch a
claim must logically be brought in a petition for habeas corpus against the
official empowered to award such credits, namely the Director of the
CDCR.†(Brown, supra, 54 Cal.4th
at p. 323, fn. 11.) In any event,
the parties implicitly assume an analysis with respect to section 2933 would be
the same as an analysis with respect to section 4019. Accordingly, we confine our discussion to the
latter statute.
Defendant
recognizes the statutory changes from which he seeks to benefit expressly
“apply prospectively and … to prisoners who are confined to a county jail … for
a crime committed on or after October 1, 2011,†while “[a]ny days earned by a
prisoner prior to October 1, 2011, shall be calculated at the rate required by
the prior law.†(§ 4019, subd.
(h).) He argues, however, that
prospective-only application violates his right to equal protection under the
federal and state Constitutions.
In
1546 (Ellis), we held the amendment
to section 4019 that became operative October 1, 2011 (hereafter the
October 1, 2011, amendment) applies only to eligible prisoners whose
crimes were committed on or after that date, and such prospective-only
application neither runs afoul of rules of statutory construction nor violates
principles of equal protection. (
reaching that conclusion, we relied heavily on Brown, supra, 54 Cal.4th
314, in which the California Supreme Court held the amendment to section 4019
that became effective January 25, 2010 (hereafter the January 25, 2010,
amendment) applied prospectively only. (
supra, at p. 1550.)
construction. It observed that
“[w]hether a statute operates prospectively or retroactively is, at least in
the first instance, a matter of legislative intent.†(Brown,
supra, 54 Cal.4th at
p. 319.) Where the Legislature’s
intent is unclear, section 3 and cases construing its provisions require
prospective-only application, unless it is “‘very clear from extrinsic
sources’†that the Legislature intended retroactive application. (Brown,
supra, at p. 319.) The high court found no cause to apply the
January 25, 2010, amendment retroactively as a matter of statutory
construction. (Id. at pp. 320-322.)
reduce punishment for a particular criminal offense, courts will assume, absent
evidence to the contrary, the Legislature intended the amended statute to apply
to all defendants whose judgments are not yet final on the statute’s operative
date. (Brown, supra, 54 Cal.4th
at p. 323; Estrada,
concluded Estrada did not apply;
former section 4019, as amended effective January 25, 2010, did not alter the
penalty for any particular crime. (
Rather than addressing punishment for past criminal conduct,
future conduct in a custodial setting
by providing increased incentives for good behavior.†(Brown,
supra, at p. 325.)
In
equally to current section 4019. Accordingly,
we held the October 1, 2011, amendment does not apply retroactively as a matter
of statutory construction or pursuant to Estrada. (Ellis,
supra, 207 Cal.App.4th at
pp. 1550, 1551.)
We next
turned to the equal protection issue. (
amendment did not violate either the federal or the state Constitution. (Brown,
supra, 54 Cal.4th at
p. 328.) Brown explained:
“The
concept of equal protection recognizes that persons who are similarly situated
with respect to a law’s legitimate purposes must be treated equally. [Citation.]
Accordingly, ‘“[t]he first prerequisite to a meritorious claim under the
equal protection clause is a showing that the state has adopted a
classification that affects two or more similarly
situated groups in an unequal manner.â€â€™
[Citation.] ‘This initial inquiry
is not whether persons are similarly situated for all purposes, but “whether
they are similarly situated for purposes of the law challenged.â€â€™ [Citation.]
“…
[T]he important correctional purposes of a statute authorizing incentives for
good behavior [citation] are not served by rewarding prisoners who served time
before the incentives took effect and thus could not have modified their
behavior in response.
after former section 4019 took effect are not similarly situated necessarily
follows.†(Brown, supra, 54 Cal.4th
at pp. 328-329, second italics added.)
The state
high court rejected the argument that its decision in People v. Sage (1980) 26 Cal.3d 498 compelled a contrary
conclusion, declining to read that case as authority for more than it expressly
held, namely that authorizing presentence conduct credit for misdemeanants who
later served their sentences in county jail, but not for felons who ultimately
were sentenced to state prison, violated equal protection. (Brown,
supra, 54 Cal.4th at
pp. 329-330; see People v. Sage,
supra, 26 Cal.3d at p. 508.) It
further refused to find the case before it controlled by In re Kapperman (1974) 11 Cal.3d 542, a case that, because it dealt
with a statute granting credit for time served, not good conduct, was
distinguishable. (Brown, supra, at
p. 330.)
Once again,
we found no reason in Ellis why “
respect to the January 25, 2010, amendment should not apply with equal force to
the October 1, 2011, amendment.
[Citation.]†(
equal protection argument.
claim of entitlement to enhanced credits.
Defendant’s presentence credits were properly calculated.
DISPOSITION
The
judgment is affirmed.
name="_ftn1" title="">* Before
Cornell, Acting P.J., Gomes, J. and Detjen, J.
name="_ftn2" title="">[1] All
statutory references are to the Penal Code unless otherwise stated.
