P. v. Hall
Filed 7/12/13 P. v. Hall CA2/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
ONE
>
THE PEOPLE, Plaintiff and Respondent, v. JIBRIL KHALID HALL et al., Defendants and Appellants. | B237656 (Los Angeles County Super. Ct. No. BA381111) |
APPEAL from
a judgment of the Superior Court
of
County, Ronald S. Coen, Judge. Affirmed.
Jeffrey S.
Kross, under appointment by the Court of Appeal, for Defendant and Appellant
Jibril Khalid Hall.
Randall
Connor, under appointment by the Court of Appeal, for Defendant and Appellant
Melvin Henry, Jr.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee and Tasha G.
Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
——————————
Appellant Jibril Khalid Hall was convicted of four counts
of robbery, with a true finding that
he personally used a firearm on count 1.
(Pen. Code, §§ 211, 12022.53, subd. (b), 12022, subd. (a)(1).)
one count of robbery (§ 211), with a true finding that a principal was
armed with a firearm (§ 12022, subd. (a)(1)). Appellants Hall and Henry contend the trial
court penalized them for exercising their right
to a jury trial by improperly imposing the upper term for their burglary
convictions, and Hall contends the trial court improperly relied on an
inaccurate probation report in imposing the upper term. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On October
17, 2011, Hall and Henry were charged in an amended information as
follows: count 1,
(§ 211); count 2, second degree robbery against Hall (§ 211); count
3, second degree robbery against Hall (§ 211); count 4, attempted second
degree robbery against Hall (§§ 664, 211); and count 5, second degree
robbery against Hall (§ 211). The
information alleged as to counts 1 and 5 that Hall personally used a handgun
(§ 12022.53, subd. (b)) and as to counts 1, 2, 3, and 5 that a principal
was armed during the commission of the offense (§ 12022, subd. (a)(1)).
Count 1
On January
28, 2011, at about 6:30 p.m., Hector Casillas took his children to McDonald’s
at Western and Century. The area was not
well lit and there were not many people around.
His two daughters and son, ages 13, seven and five, respectively, were
with him. When they came out of the
restaurant, he saw three African-American men at a bus stop. They surrounded them, but then left. Casillas and his family continued down the
street, and when he turned around, he saw the three African Americans following
him. One of the men approached him with
a gun and put it in Casillas’s chest.
Casillas did not understand what the man said because Casillas did not
speak English, but he gave the man with the gun his wallet. The man took the money out of the wallet,
threw it on the ground, and ran off. One
of the remaining men picked up the wallet and gave it to Casillas.
The man
with the gun was wearing a black sweatshirt with a cap and black jeans. At trial, Casillas identified Hall as the man
with the gun, and Henry as the man who picked up his wallet and gave it back to
him. Although the area was not well lit,
Casillas got a good look at the men’s faces.
He described them as three male African Americans, two of whom were
wearing black pants, black hoodies and white shoes; the other man was wearing
blue jeans and white shoes.
Casillas’s
minor daughter V.C. testified that when they left the McDonald’s, Casillas told
her to hurry up. Three men came up to
them and pointed the gun at Casillas and asked for money. Casillas opened his wallet and gave it to the
man with the gun. V.C. was very
scared. V.C. could not identify the man
with the gun in court, but identified Henry in court. She had seen Henry in the court hallway
before testifying and recognized him.
V.C. wears glasses and cannot see at a distance well.
Counts 2 and 3
On February
5, 2011, at about 11:00 a.m., Asod Andrus was at 106th Street and Western
Avenue with his girlfriend Brittany Reado waiting for the bus. Two black men walked up and said, “‘Don’t do
anything stupid.’†One man took Reado’s
purse, and the other man took Andrus’s cell phone, and his jewelry, but did not
take Andrus’s wallet. Andrus identified
Hall from a photo array as the person who had taken his property. Reado told police that one of the men was
wearing a black shirt with a green plant on it, and the other was wearing a red
jacket. The man with the jacket, who was
the one who took Reado’s purse, appeared to be carrying a gun underneath his
jacket.
Count 4
On February
10, 2011 at 4:20 p.m., Jessilyn McCrury was riding the 757 bus and was sitting
near the middle of the bus. A man from
the back of the bus pulled on her clothes and tried to pull a chain off her
neck. The man was unsuccessful because
the chain was too small and McCrury was yelling. She was unable to identify defendant for
police. On February 10, 2011 at about
4:20 p.m., Yaritza Benigno was riding the 757 bus and witnessed the
incident. She described the attacker as
African American, wearing a baseball cap and a gray sweatshirt. He had run off after the attack. Benigno identified Hall at a field showup.
On February
10, 2011, police were conducting surveillance near the intersection of Western
and Century. Three police cars were
monitoring fixed posts. Police were
focusing on buses because a lot of robberies had occurred in the area at bus
stops or as passengers got off the bus.
Police observed a male African American get off the 757 bus and run
westbound on Century. The man looked
over his shoulder to see if anyone was following him. Police detained the man, and Hall was
identified in court as the man who ran off the bus. Jessilyn McCrury also identified Hall at a
field show up.
Count 5
Pablo
Aragon, a day laborer, was dropped off at a Home Depot on Century Boulevard and
Crenshaw on November 28, 2010 about 4:00 p.m.
Aragon had just finished working for the day, and was waiting for a bus
with his friend Antonio. After the bus
did not come, they began walking home.
They passed an apartment building at Van Ness. Three black men asked them for a dollar. Antonio said no, and they kept walking. As they approached Western, a woman grabbed
Antonio and a man came up to Aragon and pointed a revolver at Aragon. The man and woman pushed Aragon and Antonio
towards an alley. Aragon gave the man
$40, but the man reached into Aragon’s pocket and took out $200 and Aragon’s
cell phone. The man was wearing a grey
hooded sweatshirt and gray pants.
Police
showed Aragon a six-pack photo array.
When he first testified at trial, he was not sure if the man he
identified in the photo array was the one with the gun who took his money. Later, he was recalled to the witness stand
and testified that Hall was the person who took his money and cell phone.
Defense
Police
prepared four photo arrays containing six photographs each. Two of the arrays did not contain Hall or
Henry; of the remaining two, one contained Hall and the other contained
Henry. Police officer Miguel Gutierrez
showed Casillas photo arrays on February 10, 2011. He believed he may have shown him all four
photo arrays.
The jury
convicted Hall on counts 1, 2, 3 and 4, but found the firearm allegation true
only for count 1. The jury acquitted
Hall on count 5. The jury convicted
Henry on count 1, and found the firearm allegations true.
The trial
court sentenced Hall to an aggregate term of 17 years, eight months, consisting
of the high term of five years, plus 10 years for the personal firearm use
allegation, plus two additional one-year consecutive terms on counts 2 and 3,
plus an additional eight months on count 4.
The trial court sentenced Henry to an aggregate term of six years,
consisting of the high term of five years on count 1, plus one year for
the firearm allegation.
I. The Trial Court Did
Not Punish Henry with a Higher Sentence for Exercising His Right to a Jury
Trial
Henry
argues the trial court penalized him for exercising his
upper term. He points to the fact that
the trial court had his probation report before it when it offered probation,
but after trial, relied on those matters in Henry’s probation report—prior
convictions and his recent completion of probation—rather than evidence adduced
at trial or posttrial in sentencing Henry to the upper term. Respondent contends Henry forfeited the
argument by failing to raise it in the trial court; further, there was no
evidence the trial court punished him for going to trial, and court’s selection
of the upper term was supported by Henry’s prior convictions.
A. Factual Background
The
probation officer’s report disclosed that Henry had three juvenile petitions
sustained (knife on school grounds, transportation and sale of marijuana, and
forgery) for which he received probation.
Henry also had one adult misdemeanor conviction for carrying a loaded
firearm and concealed firearm in 2007 for which he was given 36 months
probation and 90 days in jail.
name="_ftnref2" title="">[2] Henry was a member of the Hard Time Hustlers
gang. In the present case, the probation
report noted that the victim was not injured and Henry did not have a firearm
in his possession, otherwise a more punitive sentence would have been
recommended. The probation officer
recommended that the court impose but suspend execution of a prison sentence,
with Henry placed on probation on condition that he serve 180 days in county
jail if he failed to perform 180 hours of community service through the
probation department’s probation adult alternative work service (PAAWS)
program. The report found no factors in
mitigation, but noted that Henry’s prior convictions were numerous or of
increasing seriousness.
On October
19, 2011, the day before jury selection, the trial court read the probation
report. At his
Henry pointed out to the court that the court had previously offered probation
after the testimony of the first witness, but Henry had turned down the
offer. Henry requested the court to stay
his conviction and place him on probation, noting that he was the lookout and
gave the victim his wallet back, asserting that his involvement was
minimal. The prosecution requested the
high term based upon Henry’s convictions for carrying a concealed weapon and a
loaded firearm. The court stated that it
did not find Henry suitable for probation based on his prior adult and juvenile
convictions. The court noted that
Henry’s probation had ended just five and a half months before the charged
crime, and observed that “[w]ith the extensive record that [Henry] has, the
high term is warranted.†Henry requested
a reconsideration of his sentence based on his minimal participation in the
crime. The court denied the request,
stating, “I listened to the entire record [of trial], not just the conduct.â€
A defendant
may not be penalized for exercising his or her jury trial right, which is a
violation of Fourteenth Amendment due
process rights. (In re Lewallen (1979) 23 Cal.3d 274, 278; People v. Collins (2001) 26 Cal.4th 297, 306–307.) “[O]nly the most compelling reasons can
justify any interference, however slight, with an accused’s prerogative to
or to waive his rights by pleading guilty.â€
(People v. Hill (1974) 12
Cal.3d 731, 768.) “‘[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.’†(People v. Clancey (2013) 56 Cal.4th 562, 575, quoting
276.) Henry’s failure to raise the issue
in the trial court does not result in a forfeiture. (People
v. French (2008) 43 Cal.4th 36, 46–47.)
Although a
court may not impose a harsher sentence on a defendant as punishment for
exercising his or her jury trial right, “[t]here must be some showing, properly
before the appellate court, that the higher sentence was imposed as punishment
for exercise of the right.†(
973, 989–990.) In In re Lewallen, supra,
refused to accept a negotiated sentence.
Following a jury trial, at sentencing, the defense attorney requested
informal rather than formal probation. (
reason in having the District Attorney attempt to negotiate matters if after
the defendant refuses a negotiation he gets the same sentence as if he had
accepted the negotiation. It is just a
waste of everybody’s time, and what’s he got to lose. And as far as I’m concerned, if a defendant wants
a jury trial and he’s convicted, he’s not going to be penalized with that, but
on the other hand he’s not going to have the consideration he would have had if
there was a plea.’†(
resentencing, finding that the defendant had shown “that the trial court’s
exercise of its sentencing function was improperly influenced by his refusal of
the proffered plea bargain and insistence on his right to trial.†(Ibid.)
court’s discretion in imposing sentence is in no way limited by the terms of
any negotiated pleas or sentences offered the defendant by the
prosecution. The imposition of sentence
within the legislatively prescribed limits is exclusively a judicial
function.†(In re Lewallen, supra, 23
Cal.3d at p. 281.) “Legitimate facts may
come to the court’s attention either through the personal observations of the
judge during trial [citation], or through the presentence report by the
probation department, to induce the court to impose a sentence in excess of any
recommended by the prosecution.†(
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.)
Here, Henry
asserts that we must infer the trial court penalized him for asserting his jury
trial right because the court read the probation report before trial, and
offered probation; after trial, probation was no longer on the table because
the trial court had listened to witnesses.
However, Henry must present some evidence that the “higher sentence was
imposed as punishment for [his assertion] of [his jury trial] right.†(People
v. Angus (1980) 114 Cal.App.3d 973, 989–990.) We find Henry has failed to establish that
the trial court’s reading of the probation report improperly influenced his
sentence. On the contrary, the trial
court’s decision to impose a harsher sentence was the result of its
observations of the testimony of the victims, particularly the child victim who
was extremely frightened by the assault with a gun. The court so indicated the basis for its
sentence at trial: “I listened to the
entire record [of trial], not just the conduct.†Thus, the trial court properly exercised its
sentencing discretion based upon its personal observations during trial and the
presentence probation report that permit the trial court to impose a higher
sentence than was offered during pretrial.
(In re Lewallen,
omitted.)
II. Hall’s Sentence
Hall argues
the trial court abused its discretion in imposing the upper term on count 1
because the trial court relied on his extensive juvenile history as set forth
in his probation report, but the probation report is “extremely unclear†and
does not support the finding of an extensive juvenile history. Further, Hall joins in Henry’s argument that
he was penalized for asserting his right to a jury trial. Respondent asserts that Hall forfeited the
issue by failing to request clarification of his juvenile history in the trial
court; but in any event, the trial court did not abuse its discretion because
several factors support imposition of the upper term, and it is not reasonably
probable the trial court would have chosen a lower term if it had more
information about Hall’s juvenile history.
Hall’s
probation report states that he, born in 1992, suffered four sustained juvenile
petitions, but the report discloses two petitions, each of which has two
counts: (1) the first petition,
filed June 29, 2009, consisting of one count of minor in possession of a
firearm with a prior (disposition date Apr. 12, 2002),
possession of live ammunition with a prior (disposition date Aug. 9, 2007),
Case No. 629; and (2) the second petition, filed July 21, 2009, consisting
of one count of burglary (disposition date of September 29, 2009, with camp
community placement of eight years), Case No. 721. The record also discloses a third petition,
Case No. 810, consisting of one count of burglary, a disposition date of
April 12, 2010, with suitable placement.
While on probation for his juvenile offenses, Hall received several
referrals to drug treatment programs, but failed to provide his probation
officer with any verification of enrollment.
While on probation, Hall tested positive for marijuana and cocaine, and
was supervised as a juvenile at the Firestone Office Intensive Gang Unit. Hall’s adult history consisted of the current
case.
The
probation report noted that Hall “has suffered four prior juvenile sustained
petitions of the following nature:
burglary, possession of a firearm with prior, possession of live
ammunition, and burglary,†and commented that his “crimes have escalated and
resulted in the filing . . . of an adult matter.†The report noted that the crimes involved
violence used to obtain property of others, Hall used a firearm, and his
“behavior . . . suggest[s] that he has violent tendencies
and predatory habits.†Although Hall had
received community based intervention, it had not deterred his criminal
behavior. “Due to the gun allegation,
the violence utilized against the victims, there is a need for [Hall]’s removal
from the community and confine[ment] at the state level at this time.†The probation department recommended the
trial court deny probation, and due to the aggravating factors imposition of
the high term was warranted.
During the
sentencing hearing, Hall’s counsel requested that the court impose the low term
on count 1. The prosecution asked for
imposition of the midterm. The court
found that with the exception of counts 2 and 3, all of the crimes occurred at
different times with different victims, and for that reason the court would
impose consecutive sentences. The court
told both defense and the prosecution that while it gave “great weight†to
their recommendations, it disagreed with their assessment of appropriate
punishment. The court noted that, Hall
“has an extensive juvenile history, including [the] most recent of which is in
December of 2009, [when he] was given [an] eight year camp community
placement,†and based upon the [Hall]’s record the high term was
warranted. Hall did not object.
Hall argues
that while the probation report states he suffered four juvenile “sustained
petitions,†he in fact suffered only two (Nos. 629 and 721), and the
disposition date of April 2002 “casts that entry in a suspect light.†He contends we cannot rely on inaccurate
information and the trial court’s reliance thereon constituted an abuse of
discretion because the trial court did not exercise informed discretion.
First, Hall
forfeited the issue at trial by failing to raise it. (People
v. Scott (1994) 9 Cal.4th 331, 353, fn. 15.) Scott
held that lack of a timely and meaningful objection to a sentencing decision
may forfeit a party’s claim of error on appeal.
This forfeiture rule extends all the way to “claims involving the trial
court’s failure to properly make or articulate its discretionary sentencing
choices. Included in this category are
cases in which the stated reasons allegedly do not apply to the particular
case, and cases in which the court purportedly erred because it double-counted
a particular sentencing factor, misweighed the various factors, or failed to
state any reasons or give a sufficient number of valid reasons.†(Ibid.)
Second, the
inaccuracies in the probation report do not rise to the level of a denial of
due process. “Although not all the
procedural safeguards required at trial also apply in a sentencing or probation
hearing, such a hearing violates due process if it is fundamentally
unfair.†(People v. Eckley (2004) 123 Cal.App.4th 1072, 1080.) “Reliability of the information considered by
the court is the key issue in determining fundamental fairness†in this
context. (People v. Arbuckle (1978) 22 Cal.3d 749, 754–755.) “A court’s reliance, in its sentencing and
probation decisions, on factually erroneous sentencing reports or other
incorrect or unreliable information can constitute a denial of due
process.†(Eckley, at p. 1080.) In
misguided treatment of her children for food poisoning. The evidence at trial established that the
children, who were taken to the emergency room, experienced seizures and
low-blood sodium, but recovered the next day.
(Id. at pp. 1074–1077.) The probation report stated that the children
were in “critical condition†and the daughter’s condition was “‘life
threatening’†and contained other statements not supported by the evidence at
trial. (Id. at pp. 1078–1080.)
report was improper because it contained inaccurate information on which the
trial court relied in sentencing, and remanded for sentencing. (Id. at
pp. 1080–1081.)
Here, in
contrast, Hall complains that the probation report contained a date that would
have made him nine years old at the time of the offense; outlines in detail
only three petitions, while it asserts there were four; and failed to specify
the nature and degree of the offenses.
Our review of the probation report indicates these errors are less
momentous than Hall asserts. First, the
mistaken date is patently a typographical error given its context: the petition date is June 29, 2007 and the
disposition date of the second count is August 9, 2007. Second, the report refers to three petitions
and Hall did not dispute at trial the content or accuracy of the charges in those
petitions. As a result, the probation
report supports the court’s factual findings at sentencing that were ostensibly
based upon the report. (
32, 46.)
Further,
even without considering the probation report, other factors support the trial
court’s sentence. Hall’s conduct in
engaging in repeated robberies indicated he was a danger to society (Cal. Rules
of Court, rule 4.421(b)(1)). As a single
factor in aggravation is sufficient to impose the upper term (
815), “it is not reasonably probable the [trial] court would have [imposed] a
lesser sentence†absent the probation report.
(People v. Price (1991) 1
Cal.4th 324, 491–492.)
To the
extent Hall joins in Henry’s argument that he was punished for exercising his
right to a jury trial, we find no error.
Hall’s brief does not point to any facts suggesting the trial court
penalized him for going to trial, nor does he develop any cogent argument or
cite to any legal authority.
Nonetheless, the record does not support any finding that the trial
court penalized Hall; rather, as discussed above, the record demonstrates it
relied on proper sentencing factors in imposing the upper term.
The
judgment is affirmed.
NOT TO BE
PUBLISHED.
JOHNSON,
J.
We concur:
MALLANO,
P. J. CHANEY,
J.
name="_ftn1" title="">[1]
All statutory references are to the Penal Code unless otherwise indicated.
name="_ftn2" title="">[2]
Henry’s probation would have ended in July 2010, about six months before the
January 2011 robbery of Casillas and his family.
