P. v. Jackson

Filed 8/12/08 P. v. Jackson CA5b

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Merced County. Frank Dougherty, Judge.

John Doyle, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Louis M. Vasquez, Deputy Attorneys General, for Plaintiff and Respondent.

This is an appeal from judgment entered after a jury found defendant Eugene Jackson guilty of various felony and misdemeanor offenses. We will conclude the error asserted by defendant was not prejudicial. We will modify the sentence to correct an unauthorized sentence. We will affirm the judgment as modified.

Facts and Procedural History

Paul Canto, a police informant, arranged with Williams and M. (a minor), from whom he had bought a small quantity of drugs on a previous occasion, for the purchase of four ounces of cocaine for $2,200. At the time agreed for the sale, Canto drove his car to a parking lot in Los Banos. Defendant drove Williams and M. to the meeting in a Buick owned by Williamss girlfriend.

Defendant pulled in next to Cantos parked car. M., who had been in the rear seat, got out and approached the front passenger side of Cantos car. He got in, pulled a gun on Canto, and demanded the $2,200. Canto said he did not have it, then said it was in the trunk of the car. Canto activated the trunk release and the trunk opened. At that point, defendant pulled the Buick behind Cantos car, blocking it in.

M. got out of Cantos car and went to the trunk area. Canto then did the same. When M. did not see the money in the trunk, Canto told him to just keep looking. When M. leaned into the trunk to do so, Canto fled on foot.

M. got back into the Buick and defendant tried to pull away. After the car had gone about 50 feet, officers surrounded it and took the three men into custody. Although a small amount of cocaine was found in M.s pocket, the quantity promised to Canto was not found in the Buick or on the person of the three men.

While in custody, M. told an officer he had set up the robbery and the other two men knew nothing about it and had nothing to do with it.

Defendant was charged with conspiracy to commit robbery (count 4, Pen. Code,  182, subd. (a)(1) & 211); attempted robbery (count 5, Pen. Code,  664, 211); possession of marijuana for sale (count 6, Health & Saf. Code,  11359); transporting a controlled substance (count 7, Health & Saf. Code,  11379); and driving with a suspended license, a misdemeanor (count 8, Veh. Code,  14601.1). The complaint alleged a strike enhancement and a prior drug conviction.

At trial, defendant sought to introduce evidence through testimony of a police officer that M. (who, it was stipulated, would invoke his Fifth Amendment right not to testify) had claimed sole responsibility for the robbery. Defendant did not testify at trial.

The jury found defendant guilty on all counts, except that it found him guilty of misdemeanor possession of marijuana as a lesser included offense of possession for sale, finding him not guilty of that latter offense. The court found the two prior-conviction allegations true. The court sentenced defendant to 11 years in prison.^[1]

Discussion

Defendant sought to admit M.s statement of M.s sole culpability pursuant to Evidence Code section 1230, which permits evidence of hearsay statements if, as relevant here, the declarant is unavailable as a witness, if the statement is against the declarants penal interest when made, and if the declaration is sufficiently reliable despite its hearsay character. (People v. Duarte (2000) 24 Cal.4th 603, 610-611.) The trial court ruled that the statement was inadmissible pursuant to the holding of the United States Supreme Court in Crawford v. Washington (2004) 541 U.S. 36 (Crawford): M. will not be available for cross-examination and because he will not be available for cross-examination to test the credibility of that -- of those statements, the courts going to find them inadmissible.

Respondent does not contend Crawford permits or requires a trial court to reject all hearsay under Evidence Code section 1230, even when offered by the defendant in a criminal prosecution, on the basis that the lack of opportunity for the People to cross-examine the declarant renders the hearsay unreliable. It is clear to us that such a rule is not required by Crawford (which protects the defendants rights under the federal Constitution) nor by Evidence Code section 1230, which clearly contemplates the trial court will exercise its judicial discretion to evaluate reliability of the statement in light of the facts and circumstances of each particular case. (See People v. Cudjo (1993) 6 Cal.4th 585, 608.)

Respondent does contend the trial court determined in this case that M.s hearsay statement was unreliable for reasons other than the absence of the opportunity for cross-examination. The court did not do so, however, as is clear from the language quoted above. If we were to determine that the exclusion of the evidence was prejudicial, we would remand the matter so that the trial court could exercise its discretion on the reliability issue under Evidence Code section 1230.

Upon review of the record, however, we conclude it is not reasonably likely that defendant would have achieved a more favorable verdict if the evidence had been admitted. (See People v. Cudjo, supra, 6 Cal.4th at p. 611 [People v. Watson (1956) 46 Cal.2d 818, 836, standard of prejudice applicable].) First, M.s statement asserted that only he planned and knew about the robbery, when the evidence was essentially uncontested that, at the very least, M. and Williams had planned the robbery together. (The absence of anything like the prescribed amount of cocaine to be sold negates any contention the robbery was spur-of-the-moment.) Second, the evidence was uncontested that defendant drove the Buick into a position blocking Cantos escape route even while M. was still in Cantos car, evidence wholly incompatible with any defense theory attributing to defendant an innocent state of mind. Under these circumstances, M.s statement did nothing to undermine the prosecutions evidence. Even if, as defendant contends, the applicable standard of prejudice were the harmless error standard of Chapman v. California (1967) 386 U.S. 18 (which, under controlling precedent, it is not), we would conclude that, beyond a reasonable doubt, the error of which defendant complains did not contribute to the verdict. (See id. at p. 24.)

As respondent points out, the trial court imposed an unauthorized sentence on the attempted robbery count, count 5. (Execution of the sentence on that count was stayed pursuant to Pen. Code,  654.) The court imposed sentence under Penal Code section 664, which provides that, in most cases, the sentence for an attempted crime is one-half the sentence for the completed crime. (See Pen. Code,  664, subd. (a).) As respondent notes, however, Penal Code section 213, subdivision (b) provides that the punishment for attempted second-degree robbery is imprisonment in the state prison, [n]otwithstanding Section 664. Penal Code section 18 provides that felonies punishable by imprisonment in the state prison require a sentence of 16 months, two years, or three years. Accordingly, since the trial court indicated it was imposing the middle term of imprisonment on count 5, the Penal Code requires a sentence of two years, doubled to four years because of the strike enhancement, instead of the one-year sentence pronounced by the trial court.^[2]

Disposition

The judgment is modified to impose a sentence of four years on count 5, and that sentence is stayed pursuant to Penal Code section 654. As modified, the judgment is affirmed. On remand, a corrected abstract of judgment shall be prepared and provided to the appropriate authorities.

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^* Before Vartabedian, Acting P.J., Wiseman, J. and Hill, J.

^[1]The abstract of judgment omits to note the sentence on count 5 was stayed pursuant to Penal Code section 654. Accordingly, it erroneously states a total sentence of 12 years.

^[2] Defendant does not request remand to the trial court for a new exercise of sentencing discretion on count 5. There is no reason to believe, on the present record, that the trial court would find mitigating circumstances to support imposition of the lower term on count 5, since the court did not do so on the conspiracy to commit robbery count.