P. v. Gonzalez

Filed 4/28/08 P. v. Gonzalez CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Yolo)

----

A jury convicted defendant Mario Sandoval Gonzalez of driving under the influence (DUI) (Veh. Code, 23152, subd. (a)) and driving with a blood alcohol level of .08 percent or above (Veh. Code, 23152, subd. (a)), both having occurred within 10 years of a previous felony DUI conviction (Veh. Code, 23550.5), and driving on a suspended or revoked license (Veh. Code, 14601.2, subd. (a)). After the jury sustained allegations of two prior prison terms (Pen. Code, 667.5, subd. (b)) and driving with a blood alcohol level of .15 percent or above (Veh. Code, 23578), the court sentenced defendant to a five-year term.

On appeal, defendant contends the trial court erred in failing to grant a mistrial after he was seen in restraints by jurors, his upper term sentences are in error, and the abstract refers to a fine never imposed by the court. We modify the judgment to include two $20 security fees pursuant to Penal Code section 1465.8, order a correction to the abstract, and otherwise affirm the judgment.

Facts and Proceedings

Shortly after 2:00 a.m., March 26, 2006, Woodland Police Sergeant Stephen Guthrie saw a red Volkswagen drive into a dead-end alley with its headlights off. The driver, defendant, had a thousand-yard stare, a look very intoxicated people get.

Defendants car did a three point turn, left the alley, and parked. Exiting the Volkswagen, defendant stumbled towards an Orchard Supply Store.

Sergeant Guthrie approached defendant and asked to speak to him. Defendant responded in Spanish, so Sergeant Guthrie summoned a Spanish speaking officer to the location. Defendant failed two field sobriety tests, and was arrested for driving under the influence of alcohol. Numerous unopened cans of beer were found in defendants car and an unopened can of beer was found in one of his pockets.

Defendants blood alcohol level was .25 percent. The parties stipulated defendant knew he had a suspended or revoked drivers license.

Discussion

I

Juror Observation of Defendants Restraints

Defendant contends the trial court should have granted his motion for mistrial based upon jurors seeing him in restraints. We disagree.

After the defense rested, the court took stipulations, excused the jury for a break, admitted defense exhibits, and ordered a 10 minute break. After the break, outside of the jurys presence, defense counsel informed the court he believed jurors saw defendant in shackles while he was being transported to the restroom. The court asked counsel if he wanted the cautionary instruction for defendants who are in custody, CALCRIM No. 204, but counsel moved for a mistrial.

Counsel thought at least two jurors saw defendant in restraints. The bailiff knew defendant was being transported to the restroom, and while he could not say if anyone was in the hallway, most of the jurors followed him to another room.

Counsel observed a former juror on a prospective panel was in the courtroom and was in the hallway at the time. The former juror said he could not recall any other jurors being in the hall. He had followed the jurors as they were being led by the bailiff into the side room, and went back into the hall after realizing he did not belong. The former juror saw defendant in the hall as he was returning to the courtroom.

Defense counsel told the court his client was transported before the bailiff asked the jurors to move and he saw defendant in the hallway about three minutes after the jurors had gone into the other room. The former juror then related identifying characteristics of two jurors with whom he spoke while in the hallway.

The bailiff told the court he moved the jurors before he knew defendant had to use the bathroom. The transport officer, when asked if he saw any jurors as defendant was being moved, told the court his whole focus was on defendant and none of the jurors stood out to him.

The court ruled it was possible one of the jurors could have seen defendant in handcuffs, but any viewing was accidental. Defense counsel argued the cautionary instruction would not cure the prejudice to defendant and renewed his mistrial motion. The court denied the motion and instructed the jury with CALCRIM No. 204.

Defendant argues the court abused its discretion in denying the mistrial motion because seeing the restraints kept the jury from viewing him fairly. We disagree.

A trial court should grant a mistrial only when a partys chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial. (People v. Bolden (2002) 29 Cal.4th 515, 555.) Whether a particular incident is incurably prejudicial is by nature a speculative matter, so the trial court is vested with considerable discretion in deciding mistrial motions. (People v. Wharton (1991) 53 Cal.3d 522, 565.)

Defendants claim does not raise the issue of whether he was improperly shackled during the trial without justification. Before the trial commenced, counsel asked the court to remove the handcuffs from defendant and stated the defense was ready. The subject was not mentioned again until the mistrial motion. We therefore only consider the effect on the jurors of seeing defendant in restraints during transportation.

Prejudicial error does not occur simply because the defendant was seen in shackles for only a brief period either inside or outside the courtroom by one or more jurors or veniremen. [Citation.] (People v. Tuilaepa (1992) 4 Cal.4th 569, 584.) Thus a jurys brief observations of physical restraints generally have been found nonprejudicial. [Citations.] (People v. Slaughter (2002) 27 Cal.4th 1187, 1213.)

Although the record is not clear, we defer to the trial courts determination that a juror may have seen defendant as he was being transported to the bathroom in handcuffs. No more than two jurors saw defendant in restraints. The viewing was necessarily brief as defendant was being transported outside the courtroom, and the jurors only could have seen him in the hallway during transportation. The cautionary instruction removed any possibility that defendant was so prejudiced that a mistrial was necessary. The trial court did not abuse its discretion in denying the mistrial motion.

II

Upper Term Sentences

Defendant claims his upper term sentences for driving under the influence and driving with a blood alcohol level of .08 percent or above violated Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham) and improperly used an element of a crime to impose an upper term. We disagree.

A. Cunningham

Defendant was tried after the Supreme Court announced the Cunningham decision. Although the Legislature had amended the determinate sentencing law in response to Cunningham, the court did not apply the amendments as the bill had not been signed when the jury reached its verdict. The court also ruled Cunningham precluded it from considering the fact that the prior convictions were numerous or his performance on parole was inappropriate.

In imposing upper terms on both counts, the court stated: the only conclusion I can come to is that the maximum sentence, that is the upper term sentence, must be imposed in this case. The defendant has suffered five prior convictions, each conviction was for driving under the influence of alcohol. In any number of those cases someone was injured as a result of the defendants driving. All of those facts warrant an upper term sentence.

Defendant argues the trial courts use of prior convictions to justify the upper term sentence relied on qualitative, subjective conclusions contrary to Cunningham and its predecessors, Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403].

The United States Supreme Court, applying Blakely and Apprendi, held in Cunningham that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864.) However, the Sixth Amendment jury trial guarantee does not apply to prior convictions that are used to impose greater punishment. (E.g., Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].)

In People v. Black (2007) 41 Cal.4th 799, our Supreme Court reaffirmed that the right to a jury trial does not apply to recidivist facts, such as prior convictions and convictions that are increasing in number and seriousness. (Id. at pp. 819-820.) Defendant has five prior convictions for DUI, including two for driving under the influence while causing injury to another (Veh. Code, 23153, subd. (a)). Since the prior convictions rendered him eligible for the upper term, imposition of the upper term sentences on the basis of the prison convictions did not violate his right to jury trial.

B. Dual Use of Facts

Defendants convictions for driving under the influence and driving with a blood alcohol level of .08 percent or above were elevated to felonies pursuant to Vehicle Code section 23550.5 due to defendants prior conviction for driving under the influence on July 26, 2004, in Yolo County.

Defendant further argues the courts use of his prior convictions as an aggravating factor violates the rule against using an element of a crime to impose an upper term. (Cal. Rules of Court, rule 4.420(d).) Again we disagree.

Vehicle Code section 23550.5 does not define a substantive offense. Former Vehicle Code section 23175 allowed a person convicted under Vehicle Code section 23152 to be sentenced to state prison if the offense took place within seven years of three or more statutorily specified convictions. (People v. Coronado (1995) 12 Cal.4th 145, 151-152; Stats. 1988, ch. 599,  1, p. 2160; Stats. 1988, ch. 1553, 2, p. 5580; Stats. 1990, ch. 44, 6, p. 255.) The Supreme Court held this provision did not define a substantive offense, but rather result in increased punishment for a current conviction under Vehicle Code section 23152. (Coronado, supra, at p. 152, fn. 5.)

Vehicle Code section 23550.5, which operates in the same manner, is also not a substantive offense. Like former Vehicle Code section 23175, this provision is best described as a sentence-enhancing statute and not a substantive offense statute. [Citation.] (People v. Coronado, supra, 12 Cal.4th at p. 152, fn. 5.) Therefore, the court did not violate California Rules of Court, rule 4.420(d) when it imposed the upper term.

III

Abstract of Judgment and Fines

Defendant notes the abstract states defendant is subject to a $20 fine pursuant to Penal Code section 1759. No such fine exists and the court never imposed one. We shall order the court to correct the abstract to remove the reference to the nonexistent fine.

The People point out the court did not impose the $20 court security fee pursuant to Penal Code section 1465.8. Penal Code section 1465.8, subdivision (a)(1), provides for the imposition of a $20 court security fee on every conviction for a criminal offense. (Pen. Code, 1465.8, subd. (a)(1).) The statute unambiguously requires a fee to be imposed for each of defendants convictions. (People v. Schoeb (2005) 132 Cal.App.4th 861, 865.)

Since the fee is mandatory and applies to each conviction, the courts error can be corrected at any time. (People v. Scott (1994) 9 Cal.4th 331, 354.) In this case, defendant was convicted on two counts and the court should have imposed two court security fees. Where a trial court fails to impose a statutorily mandated fine or fee, it renders an unauthorized sentence, which an appellate court is empowered to correct even if the People made no objection to the trial court. (People v. Turner (2002) 96 Cal.App.4th 1409, 1413; People v. Terrell (1999) 69 Cal.App.4th 1246, 1255-1256.)

Accordingly, we modify the judgment to impose two $20 court security fees and order the trial court to prepare an abstract of judgment reflecting the fees. (See People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2.)

Disposition

The judgment is modified to impose two $20 court security fees pursuant to Penal Code section 1465.8 subdivision (a)(1). As modified, the judgment is affirmed. The trial court shall prepare an amended abstract of judgment deleting the reference to a $20 fine pursuant to Penal Code section 1759 and reflecting that defendant is to pay two $20 court security fees pursuant to Penal Code section 1465.8, subdivision (a)(1). The trial court shall forward a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation.

HULL, J.

I concur:

DAVIS, Acting P.J.

I concur except as to Part II of the Discussion in which I concur in the result.

NICHOLSON , J.

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