P. v. Edwards

Filed 2/19/08 P. v. Edwards CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Joan Comparet-Cassani, Judge. Affirmed.

Marta I. Stanton, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General and Sonya Roth, Deputy Attorney General, for Plaintiff and Respondent.

RELEVANT PROCEDURAL BACKGROUND

On September 28, 2006, an information was filed charging appellant Trevoy Emil Edwards in count 1 with possession of a firearm as a felon (Pen. Code,  12021, subd. (a)(1)), in count 2 with possession of ammunition as a felon (Pen. Code,  12316, subd. (b)(1)), and in count 3 with giving false information to a peace officer (Pen. Code, 148.9, subd. (a)).[1] The information also alleged that appellant had a prior conviction for a serious or violent felony or juvenile adjudication ( 1170.12, subds. (a)‑(d), 667, subds. (b)‑(i)) and six prior convictions ( 667.5, subd. (b)).

Appellant pled not guilty to all counts and waived his right to a jury trial on the prior conviction allegations. On February 23, 2007, a jury found appellant guilty on all counts. Appellant waived his right to a bench trial on the prior conviction allegations and admitted the allegations. On April 25, 2007, the trial court sentenced appellant to a total term of seven years in prison.

FACTS

A. Prosecution Evidence

At approximately 10:50 p.m. on August 12, 2006, Long Beach police officers Kevin Vorhis and Randy Sany were on patrol near the Copa Cabana night club. As they drove their marked police car through the night clubs parking lot, their headlights illuminated appellant and several other persons standing in the lot. Appellant, who appeared nervous, walked rapidly to a parked SUV, while the other persons moved in the opposite direction toward the night club. When appellant approached the SUV, his untucked shirt hung low over his waistband and pants pockets. He pulled up his shirt, retrieved a silver object from his waistband or pants, and went behind the SUV for a few seconds; he then reappeared and walked in the direction of the night club. As he passed the patrol car, Vorhis and Sany saw that appellants shirt was caught on a black cell phone or cell phone clip above his waistband. They found a loaded silver handgun on the rear bumper of the SUV and placed appellant in custody

Appellant, who was not carrying identification, told Vorhis and Sany that his name was James Sims. When Sany entered the name in the patrol car computer to check for warrants and verify appellants identify, he received no matches.

B. Defense Evidence

Appellant presented no evidence.

DISCUSSION

Appellant contends the evidence was insufficient to support his convictions.[2] We disagree.

A. Counts 1 and 2

Appellant contends there was insufficient evidence that he had previously been convicted of a felony, an essential element of possession of a firearm by a felon (count 1) and possession of ammunition by a felon (count 2). The defendant in a criminal action may stipulate to evidentiary matters and to the existence or nonexistence of facts (Leonard v. City of Los Angeles (1973) 31 Cal.App.3d 473, 476), including the existence of a prior felony conviction for the purpose of admitting this element of the offenses charged in counts 1 and 2 (see People v. Newman (1999) 21 Cal.4th 413, 417-423). The crux of appellants contention is that although the prosecutor relied on a purported stipulation regarding appellants prior felony convictions to secure convictions under counts 1 and 2, the record discloses no such stipulation. For the reasons explained below, the record appellant has provided does not establish this contention.

For an appeal to engage the consideration of an appellate court, it must be brought up on a record which, in addition to being otherwise formally sufficient, shows the error calling for correction. Such error is never presumed, but must be affirmatively shown, and the burden is upon the appellant to present a record showing it, any uncertainty in the record in that respect being resolved against him. This basic rule is a corollary of the equally fundamental principle that all presumptions and intendments are in favor of the regularity of the action of the lower court in the absence of a record to the contrary. (People v. Clifton (1969) 270 Cal.App.2d 860, 862, quoting 3 Cal.Jur.2d [(1952)] Appeal and Error, 260, pp. 781[-782]; see People v. Malabag (1997) 51 Cal.App.4th 1419, 1421-1422.) Accordingly, absent special circumstances, a criminal defendants failure to provide an adequate record precludes review of his or her contentions on appeal. (See People v. Siegenthaler (1972) 7 Cal.3d 465, 469; People v. Cummings (1993) 4 Cal.4th 1233, 1333, fn. 70.)

Here, the record contains a clerks transcript and a partial reporters transcript that omits the hearings immediately prior to appellants one-day jury trial on February 22, 2007, and the jury selection on that date.[3] The clerks transcript is silent regarding the existence of a stipulation concerning appellants prior felony convictions. The first reference to such a stipulation occurs in the reporters transcript of the bench conference on jury instructions following the presentation of evidence at trial. During the bench conference, the trial court alluded to an unspecified stipulation, and proposed -- with the prosecutors agreement -- to instruct the jury with CALJIC Nos. 12.44 and 12.49, which define the elements of the offenses charged, respectively, in counts 1 and 2, and inform the jury that the existence of a prior felony conviction has been established by stipulation. When the trial court asked whether appellants counsel had suggestions about the proposed instructions, she responded in the negative.

During the opening portion of the prosecutors closing argument, he stated: . . . I want to emphasize one point before I get started. Its that its already been agreed upon between the parties that [appellant] suffered a prior felony conviction, so you dont have to find that when you go back to deliberate, that element[] has been satisfied. Appellants counsel did not object to this assertion, nor did she dispute it during her closing argument, which focused exclusively on whether there was a reasonable doubt that the gun found on the SUVs bumper belonged to appellant. The trial court subsequently instructed the jury with CALJIC Nos. 12.44 and 12.49, without any objection or comment from appellants counsel.

We conclude that the record before us is inadequate to show error on appeal. In view of the repeated references to a stipulation in the reporters transcript, the silence of the clerks transcript regarding a stipulation cannot reasonably be viewed as conclusive evidence that there was no stipulation. (See People v. Malabag, supra, 51 Cal.App.4th at pp. 1422-1423 [clerks transcript may establish existence of waiver when reporters transcript is silent].) Furthermore, the partial reporters transcript discloses that the parties conduct reflected that a stipulation had been reached in proceedings not recorded. Because appellant has not explained his failure to provide a full reporters transcript (or, if necessary, an agreed statement), he has not overcome the presumption that the trial court and the prosecutor acted properly in connection with the stipulation. (See id. at pp. 1422-1426.)

Moreover, even if a complete record revealed no more than the record before us, appellants contention would fail. Appellants counsel had the authority to enter into evidentiary stipulations without express approval from appellant. (People v. Adams (1993) 6 Cal.4th 570, 578.) Furthermore, when, as here, a defendant charged with being a felon in possession of a firearm and ammunition has pled not guilty and asserted the right to a jury trial, the trial court need not provide express advisements about the defendants constitutional rights regarding a jury trial and related matters before accepting the defendants stipulation to a prior felony conviction. (People v. Newman, supra, 21 Cal.4th at pp. 417-423.)

The record before us is sufficient to establish that appellants counsel agreed to the stipulation. As the court explained in McBain v. Santa Clara Sav. & Loan Assn. (1966) 241 Cal.App.2d 829, 838, assent to a stipulation need not be made in a formal manner and under the particular circumstances of a case, where a partys counsel remains silent and makes no objection to the stipulation, his passive acquiescence may constitute an assent to it. Here, appellants counsel assented to the stipulation through her acquiescence to the proposal that the jury be instructed with CALJIC Nos. 12.44 and 12.49, and her failure to object when the prosecutor and the trial court submitted it to the jury. In sum, there is sufficient evidence that appellant suffered a prior felony conviction for purposes of the offenses charged in counts 1 and 2.

B. Count 3

Appellant contends that his conviction for giving false information to a peace officer fails for want of substantial evidence that he offered a false name to Officers Vorhis and Sany. Under subdivision (a) of section 148.9, [a]ny person who falsely represents or identifies himself or herself as another person or as a fictitious person to any [enumerated] peace officer . . . upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the

proper identification of the person by the investigating officer is guilty of a misdemeanor. Appellant argues that his conviction for this offense is infirm because there is no evidence that James Sims -- the name he gave to Officers Vorhis and Sany -- is not his true name. We disagree.

The record discloses that appellants counsel admitted to the jury that appellants surname is Edwards. In criminal proceedings, a party is bound by a stipulation or admission in open court of his counsel, and, except where a constitutional proscription is involved, he cannot mislead the court by seeming to take a position on the issues and then disputing or repudiating the position on appeal. (In re Francis W. (1974) 42 Cal.App.3d 892, 903;People v. Pijal (1973) 33 Cal.App.3d 682, 697; People v. Peters (1950) 96 Cal.App.2d 671, 672-678.) This principle encompasses admissions by counsel in the form of definite oral statements, as well as the unequivocal conduct of counsel from which the jury could properly and reasonably consider that the fact was conceded. (People v. Peters, supra, 96 Cal.App.2d at p. 677.)

During the prosecutors opening statement, he asserted: [Y]oure going to hear that [appellant] told the officers that his name was James Sims. . . . Its Trevoy Edwards. Shortly thereafter, appellants counsel in opening statement referred to appellant as Mr. Edwards; throughout the trial, she repeatedly referred to him as Mr. Edwards. At no time during the prosecutors closing argument did appellants counsel challenge the assertion that appellants name was Trevoy Edwards. As our Supreme Court explained in People v. Newman, supra, 21 Cal.4th at page 413, when, as here, the fact admitted by defense counsel is not sufficient by itself to establish the relevant offense, the trial court is not required to give the defendant express advisements about the right to a jury trial and related constitutional rights. Accordingly, appellant is bound by his counsels admission that his true surname is Edwards.

Moreover, the record discloses testimony from Officers Vorhis and Sany -- the only witnesses at trial -- from which the jury could reasonably infer that appellants true surname is Edwards, and not Sims. In response to the prosecutors direct examination, they testified that appellant was the man they had arrested, that appellant told them he was James Sims, and that their patrol car computer did not receive a match for this name when they attempted to verify it. Although the prosecutor never inquired whether Trevoy Edwards was appellants true name, appellants counsel repeatedly asked them questions that identified appellant as Mr. Edwards.

The following colloquy occurred during the cross-examination of Officer Vorhis:

Q. Now, did you book Mr. Edwards?

A. Yes, I did. [] . . . []

Q. In your arrest report, you indicated that there was a black clip, cell phone clip, on the side of Mr. Edwards?

A. Yes.

Q. Now, you also indicated that you saw his right hand make a low coming up motion?

A. Yes.

Q. Was Mr. Edwards standing still when you saw this or was he walking in a direction?

A. He was walking from my right to left towards the rear of the vehicle.

Moreover, the following colloquy occurred during the cross-examination of Officer Sany:

Q. And you indicated that you noticed Mr. Edwards as he was part of six subjects in a group when you entered the parking lot?

A. Yes. [] . . . []

Q . Now, could you see Mr. Edwards at any time when he walked away from the subjects?

A. When he went behind the SUV, I could see his legs below his knees down to his feet. [] . . . []

Q. Now, you indicated that -- you described Mr. Edwards[s] movement as using his left hand to pull up his shirt and his right hand to grab an object. Was it something like this or this way? [] . . . []

A. He used his left hand to lift up his shirt and his right hand to reach into his front right waistband or right pocket.

Although an attorneys questions, taken by themselves, do not constitute evidence (People v. Stuart (1959) 168 Cal.App.2d 57, 60-61), testimony is properly interpreted in light of the questions posed to the witness (see In re Pratt (1980) 112 Cal.App.3d 795, 867). The questions appellants counsel asked Officers Vorhis and Sany unmistakably presupposed that appellants surname was Edwards. Because the officers never challenged this presupposition, a jury could reasonably infer from their answers that they agreed with it. Moreover, the jury could reasonably conclude from other portions of the officers testimony that James Sims was a false name because the officers did not obtain a match for it through their computer. Accordingly, the record discloses substantial evidence that appellant gave the officers false information when he was arrested.

Appellants reliance on In re Kelly W. (2002) 95 Cal.App.4th 468 for the contrary conclusion is misplaced, as that case is factually distinguishable. There, the juvenile court placed a minor -- who was generally called Kelly W. throughout the juvenile court proceedings -- in a youth center. (Id. at pp. 470-471.) While he resided at the center, he was detained for public intoxication, and told the detaining officer that his name was Kelly K. (Ibid.) The juvenile court subsequently determined that he had provided false information to the officer, even though his mother testified that the minors full surname was a hyphenated compound of his parents different surnames, and his birth certificate stated that his surname was W.-K. (Id. at p. 471.) The appellate court concluded that he had not given a false name by offering only his fathers surname when he was detained. (Id. at pp. 472-473.) Here, unlike Kelly W., appellants true name is distinct from the name he gave the officers, and there is sufficient evidence that the latter name was false or fictitious. In sum, there is sufficient evidence to support his conviction for giving false information to a peace officer.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

WILLHITE, Acting P. J.

SUZUKAWA, J.

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[1] All further statutory citations are to the Penal Code.

[2] Generally, [t]he proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witnesss credibility for that of the fact finder. [Citations.] [Citation.] (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)

[3] The reporters transcript also indicates that an unreported bench conference occurred shortly before voir dire.