P. v.
Filed 6/24/13 P. v. Jennings CA4/1
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
THOMAS DEAN JENNINGS,
Defendant and Appellant.
D061872
(Super. Ct.
No. SCD229068
Super. Ct.
No. SCD236226)
APPEAL from
a judgment of the Superior Court
of
County, Richard S. Whitney and Jeffrey F. Fraser, Judges. Affirmed as modified and remanded with
directions.
Robert
Booher, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Julie L. Garland, Assistant Attorney General, Lilia E. Garcia and Quisteen S.
Shum, Deputy Attorneys General.
INTRODUCTION
This appeal
by Thomas Dean Jennings,
name="_ftnref1" title="">[1]
who previously was convicted in 2002 of four counts of
strikes
under the Three Strikes law, involves two new criminal cases (SCD229068 &
SCD236226) and seven new felonies he committed in 2010 during four more
residential burglaries.
SCD229068
On September 7, 2011, in SCD229068, a
jury found Jennings guilty of one
count of burglary of an inhabited dwelling (Pen. Code, §§ 459 & 460;
undesignated statutory references will be to the Penal Code unless otherwise
specified). On that same date, in a
bifurcated proceeding in that case, Jennings
admitted (1) a first prison prior conviction allegation (§§ 667.5, subd. (b)
& 668) alleging he had served a prison term based on his four 2002 prior
residential burglary offenses; (2) a first serious felony prior conviction
allegation based on those four offenses (§§ 667, subd. (a)(1), 668 &
1192.7, subd. (c)); and (3) an allegation that those four offenses were prior
strike convictions within the meaning of the Three Strikes law (§ 667, subds.
(b)- (i), 668 & 1170.12).
SCD236226
On February 29, 2012, in SCD236226, a
jury found Jennings guilty of three
counts of burglary of an inhabited dwelling house (counts 1, 4 & 6: §§ 459 & 460), one count of unlawful
taking of a vehicle (count 2: Veh. Code,
§ 10851, subd. (a)), and three counts of grand theft of personal property
(counts 3, 5 & 7: §§ 484, subd. (a),
487, subd. (a) & 488). On that same
date, Jennings admitted a first
prison prior conviction allegation (§§ 667.5, subd. (b) & 668) and an
allegation that his four 2002 residential burglary offenses were prior strike
convictions within the meaning of the Three Strikes law (§§ 667, subds.
(b)-(i), 668 & 1170.12).
Sentencing (
At the
combined sentencing hearing in both cases, held on April 13, 2012, the court
denied Jennings's Romero
prior strikes, and sentenced him to an aggregate prison term of 100 years to
life plus five years.
Specifically,
in SCD236226, the court sentenced Jennings to consecutive 25-year-to-life terms
for each of the three residential burglary convictions, plus concurrent
25-year-to-life terms for each of the grand theft convictions and for the
taking of a vehicle conviction, and struck the prison prior allegation. In SCD229068, the court sentenced Jennings to
25 years to life─consecutive to the sentence imposed in
SCD236226─for his residential burglary conviction, plus a consecutive
five-year term for the true finding on the serious felony prior conviction
allegation, and struck the prison prior allegation.
Contentions on
Appeal
In his
appeal, Jennings raises three contentions.
First, he contends his trial counsel provided constitutionally
ineffective assistance by (1) failing at the sentencing hearing to discuss
2002 prior strike convictions should be stricken because they arose out of a
single period of aberrant conduct and (2) failing to provide the court at
sentencing with a reporter's transcript of the 2002 hearing at which he was
sentenced for those prior strike convictions because the transcript would have
shown that the court at that prior sentencing hearing found, as a mitigating
factor, that he committed the four underlying residential burglaries during a
single period of aberrant conduct
Second,
Jennings claims the court erred by not staying under section 654 the execution
of the sentences it imposed in case No. SCD236226 for the three grand theft convictions
and for the conviction of unlawfully taking or driving of a vehicle.
Last, he
contends the court violated his Sixth Amendment right to have each element of
the charged offenses proven beyond a reasonable doubt, as well as his
Fourteenth Amendment right to due process, when it instructed the jury in
SCD236226 with CALCRIM No. 376 regarding the possession of recently stolen
property as evidence of a crime.
We modify
the judgment to stay the execution of the sentences the court imposed in SCD236226
for Jennings's three grand theft convictions and his conviction of unlawfully
taking a vehicle. In all other respects,
we affirm the judgment and remand the matter with directions.
FACTUAL
BACKGROUND
A.
At around
1:20 a.m. on August 9, 2010, someone called San Diego Police Detective Blaine
Ferguson on his cell phone and informed the detective he believed a burglary
would occur at 457 7th Avenue in Imperial Beach sometime later that day. The caller told Detective Ferguson the
nickname of the individual who was going to commit the burglary.
Later that
morning, Detective Ferguson contacted an investigative detective assigned to
the Imperial Beach area and learned that the detective did not have enough
staff to conduct surveillance. With
several other officers and the air support unit of the San Diego Police
Department, Detective Ferguson set up surveillance along 7th Avenue.
Shortly·afterwards,
the police spotted a green car with heavily oxidized paint driving slowly
through the neighborhood. The car drove
past the house at 457 7th Avenue, stopped at an adjacent intersection, and let
a passenger out of the car. The
passenger walked back to the house and entered it. Meanwhile, the car with its two remaining
occupants drove off and parked a few blocks away.
After a
period of time, the green car returned to the house that was being
burglarized. The two people who had been
in the car and the person who had entered the house loaded items taken from the
house in the car. The three suspects
left the house in the green car and drove northbound on Silver Strand Way. The police followed the green car in unmarked
vehicles until they could initiate a traffic stop.
When the
police in their marked vehicles activated their overhead lights and sirens and
tried to stop the green car, the green car made a U-turn and drove southbound
on Silver Strand Way. The green car
eventually crashed into traffic at an intersection near the naval amphibious
base. The rear-seat passenger, later
identified as Jennings, jumped out of the green car and ran. Detective Ferguson got out of his car and
chased Jennings. Jennings tried to climb
over the security fence of the naval base, but he became entangled on the
barbed stanchions at the top of the fence.
As he was hanging upside down on the naval base side of the fence, he
removed his pants and fell to the ground.
Wearing only his shirt and underwear, he got up and ran through the
base. Jennings's pants, which contained
his wallet and evidence of his identity, were later recovered.
Jennings
eventually hid inside a warehouse on the base.
The police evacuated military personnel out of the warehouse, went
inside, and arrested him.
Ryan
Traver, who lived in the house at 457 7th Street, identified the property found
in the green car as his. The property
included a flat screen television, DVD's, tools, a backpack filled with
pennies, an underwater camera, and watches.
Traver did not know Jennings or the other suspects, and he did not give
them permission to enter his home or take his belongings.
B.
6467 Bluefield
Place, San Diego
Stuart
Williams lived with his mother, Joy Winter, in a house at 6467 Bluefield Place
in San Diego. On June 25, 2010, Williams
left the house at about 11:00 a.m. He
was the last person to leave the house.
When
Williams returned home after 1:00 p.m. that day, everything inside the house
was in total disarray. Plants were
knocked over, papers were scattered everywhere, drawers had been pulled out and
emptied, and the bathroom cupboard also had been emptied. Winter's Audi station wagon that had been
parked in the garage was missing, as were the duplicate car keys for the Audi
and Winter's Jaguar, a television, and several hundred dollars' worth of
stamps. Inside his bedroom, Williams
noticed that a computer, a laptop, and his passport were missing, and papers
had been sifted through. He called his
mother and the police.
Winter, who
was preparing for a trip to Africa, noticed that her identification, credit cards,
current passport, six expired passports, and a visa were gone. Her jewelry and $300 in cash also were
missing.
Winter and
Williams did not know Jennings and did not give anyone permission to take the
Audi or any of their other belongings from their home.
That night
the police located the Audi near the 6000 block of Federal Boulevard. When Winter saw her car the next day, she
noticed that the roof on the back had been torn apart and a tire had been
removed.
John
Barker, Winter's neighbor, was working in his front yard around 11:00 a.m. on
June 25, 2010, when two young White males approached him and handed him a flier
for landscape services. They continued
walking in the direction of Winter's house.
Barker described one of the males as being in his early 20's, of medium
height, slender, and having a pointed nose and chin.
At trial,
Barker indicated he was not sure he would recognize the individual who gave him
the flyer if he saw him again, but he noted that Jennings had a "rather
pointed nose" and there was a similarity between Jennings and that
individual.
6512 Sunny Brae,
San Diego
On July 28,
2010, at around 4:54 p.m., the police responded to a call regarding a burglary
at 6512 Sunny Brae in San Diego. The
call was made by a neighbor. The
residents, John Bentz and Alicia Lopez, were not home, but the garage door and
the door providing access from the garage into the house were open. The police noticed the deadbolt lock of the
access door was still in the socket, but the door frame around it was torn
apart. The police found a hammer,
screwdriver, and broken file on the ground next to that access door, as well as
a gardening glove and pocket knife outside a side door to the garage, which had
a broken pet access door. It appeared that
the burglar had kicked in the pet access door because its frame was inside the
garage. The police also found some
window screens had been removed, but they were not able to find any
fingerprints on the hammer, the screwdriver, a pair of knife clippers, or the
windows where the screens had been removed.
The police
noticed the interior of the house was heavily ransacked. Drawers were pulled out and emptied and items
were strewn all over the house.
6228 Camino Largo,
San Diego
On August
3, 2010, Brian Elsner and his daughter lived in the house located at 6228
Camino Largo in San Diego. At around
10:00. a.m., they left the house on a road trip to the east coast.
Two day
later, on August 5, Elsner received a phone call from Rod McCain, who was doing
repairs on Elsner's home. McCain told
Elsner that someone had burglarized the house.
When Elsner returned home the following week, he found his house in
total disarray. Cupboards, drawers, and
cabinets were open, and their contents were left on the floor. Among the missing items were a desktop
computer, a wedding band, two televisions, a man's watch, a stamp collection
from 1955, the title to his Jaguar car, his passport, his birth certificate, an
extra car key for the Jaguar, bottles of cologne and aftershave lotions,
vitamins and nutritional supplements, a spice rack, a block knife set,
checkbooks, check registers, and some stock certificates.
Elsner did
not know Jennings, and he did not give anyone other than the construction
workers and his daughter permission to be in his house on August 3, 2010.
Police
Investigation
On August
9, 2010, the police searched the apartment where Tammy Huynh and her boyfriend,
Ernest Colmenero, lived. Colmenero and
Jennings were friends. The police found
numerous items that Huynh admitted did not belong to her. At trial, Huynh testified that Jennings and
Colmenero brought those items to her apartment in two large plastic bins the
day before.
title="">[4] She also testified that Jennings carried a
flat-screen television into the apartment.
She told the police that Colmenero asked her to keep the items in their
apartment because Jennings was going to be staying with them for a couple of
days.
The items
in the two plastic bins included power cords, car stereo equipment, paperwork
and stock certificates in other people's names, a pearl necklace and other
jewelry, a spice rack, a block knife set, Jennings's mail, men's clothing, a
laptop, and a blue bag with "Tommy J." handwritten on it with a black
marker. Huynh testified that Jennings
gave Colmenero the necklace, and Colmenero then gave it to her.
On August
17, 2010, Bentz and Lopez went to the police station and identified various
items that had been stolen from their house on July 28, 2010, and had been
found in Huynh's apartment. Elsner
identified 15 items that had been stolen from his house earlier that month and
found in Huynh's apartment.
In November
2010 the San Diego Police Department Crime Laboratory concluded that Jennings's
DNA matched both DNA from a swab of the upper arc of the steering wheel of
Winter's Audi and the predominant DNA from a swab of the lower arc of the same
steering wheel. The Crime Laboratory
also concluded that Jennings was a possible contributor of DNA on a hammer
found at Bentz and Lopez's house.
However, following a change in DNA interpretation guidelines implemented
in April 2011 to make the DNA determinations more conservative, the crime
laboratory concluded that the results from the swab of the hammer were
unsuitable for comparison.
DISCUSSION
I. INEFFECTIVE
ASSISTANCE OF COUNSEL
Citing
rendered ineffective assistance by failing to argue in support of Jennings's
three of Jennings's four 2002 prior strike convictions should be stricken
because the residential burglaries underlying those strike convictions
"occurred during a single period of aberrant conduct." Again relying on Garcia, Jennings also contends his counsel rendered ineffective
assistance by failing to produce a reporter's transcript of the 2002 hearing at
which he was sentenced for those prior strike convictions. The reporter's transcript of that 2002
hearing, Jennings asserts, would have shown that the judge in sentencing him
found that, as a mitigating factor, the underlying residential burglaries
"all . . . took place in one day."
For reasons
we shall explain, we conclude Jennings has failed to establish a claim of
because he has not demonstrated his trial counsel's performance fell below an
objective standard of reasonableness.
A.
1.
Jennings's two sentencing
memoranda (SCD229068 & SCD236226)
a. SCD229068
On October
6, 2011, Jennings's defense counsel, David Berman, filed a sentencing
memorandum in SCD229068 on Jennings's behalf.
The sentencing memorandum indicated that it also pertained to the
sentencing in a prior case─ SCD218955─in which Jennings's probation
was revoked following the preliminary hearing in SCD229068 and that sentencing
in both cases was scheduled for October 11, 2011.
In the
memorandum, Jennings's counsel pointed out that the four residential burglaries
and the conspiracy underlying the prior convictions allegations admitted by
Jennings in the current case (SCD229068) arose from a single prior case
(SCD168375). Specifically, Berman noted
that Jennings pleaded guilty and was sentenced to those underlying offenses in
SCD168375 on July 17, 2002. Counsel also
noted that Jennings had no criminal record and was only 21 years old when he
committed those offenses in 2002. Berman
added, "Now [Jennings] faces the very grim prospect of a
folly of a one-day burglary spree, followed by a dubious judicial resolution,
followed by a bizarre current offense."
Relying on
that the court should exercise its discretion under section 1385 to strike
three of Jennings's four prior strike conviction allegations because a life
sentence would not be "in the 'spirit'" of the Three Strikes
law. Berman also cited
argument.
In the
memorandum, defense counsel submitted that, if the court were to exercise its
discretion and strike three of Jennings's prior strike allegations, Jennings
would "not ask[] for any other
consideration" and would be prepared to accept a sentence of up to six
years for the current burglary conviction, four years "on the prison
prior," five years "on the 'nickel' prior(s)," and "a
double base term on the [remaining prior] strike." Counsel noted that Jennings was facing an
additional consecutive prison term in the probation revocation case
(SCD218955).
Defense
counsel also noted that a new criminal case─ SCD236226─was filed
against Jennings during the trial in the current case (SCD229068), and Jennings
was charged in that new case with seven felonies allegedly committed between
June 25 and August 3, 2010, before the commission of the burglary charged in
the current case. Counsel indicated that
even if the court struck three of Jennings's prior strike allegations in the
current case (SCD229068), Jennings would still be facing a Three Strikes
sentence if SCD236226 resulted in a felony conviction.
In support
of his argument that the court should strike three of the four prior strike
allegations, Berman noted that (1) Jennings had participated in, and often led,
Bible study sessions with other inmates in jail; (2) persons from the community
would vouch for his good qualities at the sentencing hearing; (3) Jennings's
parents were addicted to crystal methamphetamine; (4) Jennings became an addict
himself; (5) he committed theft to support his addiction; and (6) he was only
30 years of age. Berman added that, even
if the trial court dismissed three of Jennings's prior strike allegations,
Jennings would still be in prison until well into his 50's,which Berman
asserted was "a long time to spend in prison over the mistakes of two very
bad days, at ages 21 and 29."
Berman
attached to the sentencing memorandum copies of (1) the reporter's transcript
of the July 17, 2002 change of plea hearing at which Jennings pleaded guilty to
the charged offenses underlying his prior strikes; and (2) Jennings's
certificates of completion and recognition for his participation in the Bible
study sessions in jail.
b.
On April
12, 2012, defense counsel Berman filed a sentencing memorandum in SCD236226 on
Jennings's behalf, noting that sentencing in that case was scheduled for April
13, 2012; sentencing in SCD229068 had been scheduled in another courtroom for
March 9 of that year, and both "cases were ordered set together for
sentencing" in the same courtroom.
Anticipating
that the court would read and consider the sentencing memorandum filed in case
No. SCD229068 (discussed, ante) in
preparation for the April 13, 2012 sentencing hearing, Berman incorporated by
reference the arguments he had made in the sentencing memorandum filed in
SCD229068. In the sentencing memorandum
in SCD236226, Berman argued the reasons for striking three of the four prior
strike allegations in SCD229068 also applied in SCD236226. The striking of three of the prior strike
allegations, he asserted, "would still impose a gargantuan sentence on
[Jennings], yet allow him the faint hope and goal of returning to the community
some day, as an old man, with a chance to redeem himself." Berman added that "it would also provide
a means for [Jennings] to try to make meaningful restitution to the several
victims of his crimes." Berman
concluded by stating that Jennings was "plead[ing] for a measure of
leniency by striking all but one of the 'strike' priors in this case
also."
2.
In his
statement in aggravation, which discussed all three cases (SCD236226, SCD229068
& SCD168375), the prosecutor argued that the circumstances in aggravation
outweighed the circumstances in mitigation and asked that the court sentence
Jennings to a total prison term of 100 years to life plus five years. Specifically, the prosecutor argued that (1)
the manner in which Jennings committed all of his new crimes indicated
planning, sophistication, or professionalism in that he committed the crimes
after the victims left their homes, and each house was "ransacked in a
'professional' manner"; (2) the crimes involved an attempted taking or
actual taking or damage of great monetary value; (3) Jennings's prior
convictions as an adult were numerous or of increasing seriousness, as shown by
the fact that, after he was convicted of four residential burglaries in 2002,
he was granted parole in 2004 but "ha[d] failed to remain law
abiding," he was convicted in 2005 of driving under the influence, and in
2009 he was convicted (in SCD168375) of felony possession of a controlled
substance but was granted diversion; (4) he had served a four-year prior prison
term for his prior residential burglary convictions; (5) he was on parole for
his prior residential burglaries and on probation for his possession of a
controlled substance when he committed his new offenses; and his prior
performance on probation and parole was poor.
The
prosecution opposed Jennings's Romero
motion, asserting "[i]t is clear from [Jennings's] prior criminal record
and multiple failures on probation and parole . . . that he
is exactly the type of criminal the [Three Strikes] sentencing scheme set out
to punish. There is nothing about his
personal history that suggests he will become law abiding. He has become entrenched in a pattern of
criminal conduct that has victimized at least 10 different people."
3.
On April
l3, 2012, the court sentenced Jennings in both cases at issue here. At the beginning of the hearing, the court
noted it had received the probation reports, the statements in mitigation and
aggravation, and various letters.
Defense
counsel Berman, stating he did not have "a lot" to add to the
sentencing memoranda he filed in these two cases, summarized the arguments he
made in those memoranda:
"[M]y client faces life sentences on these cases
because of his foolhardy behavior when he
was a very young age, 21.
then. [¶] It just seems a tragedy that
now some 10 years later he's facing multiple life sentences because of that and
because of his subsequent behavior[,] of course. We plead for mercy from the court for
consideration of his still young age. Beyond that, I don't know what to
add." (Italics added.)
In the
exercise of discretion, the court declined to strike Jennings's prior strike
convictions for sentencing purposes. In
denying the defense's Romero motion
to strike three of the four prior strike allegations, the court stated:
"Well, standing before this court is an individual
who has been convicted on two different jury trials of four residential
burglaries. He has prior residential
burglaries. He has been to prison. He started his criminal career at age 13 with
a robbery which is depicted on page 5 [of the Probation Officer's Report in
SCD236226].
"And he made a decision early in his life that he
wanted to be a criminal. And he has no
regard at all for other people, or other people's property. He is the type of individual who when they
wrote the Three-Strikes law . . . were thinking about
somebody like him.
"I have thought about exercising my
requires me to do is look at the nature and circumstances of the current crime,
the nature and circumstances of prior crimes, strikes, and his chances of
rehabilitation.
"So if we just take a very brief view of the
current cases, not only does he break into people's houses, steal their
property, but the utter disrespect of just ransacking the houses, and the
horror that the victims must feel when they come home, not just to find that
their property is gone, but that somebody else has come in and completely
destroyed, not just their property, but their sense of well-being; their
safety. A home is supposed to be the one place where all people can come in and
feel safe. He has utterly shattered that
in these particular cases.
"I look at the nature and circumstances of his
prior strikes. Again, the same scenario
plays out as in our current cases. He
can't change. He won't change. He has no interest in changing. His
chances of rehabilitation are zero.
He is a career criminal. He is
somebody that in order to protect the community, he must be locked up in prison
for the rest of his life. That's what is
going to happen today." (Italics
added.)
As already
noted, the court sentenced Jennings to an aggregate prison term of 100 years to
life plus five years.
B.
1. Ineffective
assistance of counsel
A criminal
defendant is constitutionally entitled to effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art.
I, § 15; Strickland v. Washington (1984) 466 U.S. 668, 684-685; People
v. Pope (1979) 23 Cal.3d 412, 422, disapproved on another ground by People
v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10.)
To show
denial of the right to effective assistance of counsel, a defendant must show
(1) his counsel's performance was below an objective standard of reasonableness
under prevailing professional norms,
and (2) the deficient performance prejudiced the defendant. (Strickland v. Washington, supra, 466 U.S. at pp. 687, 691-692; People
v. Ledesma (1987) 43 Cal.3d 171, 216-217; People v. Pope, supra, 23 Cal.3d at p. 425.) To show prejudice, a defendant must show a
reasonable probability that he would have received a more favorable result had
his counsel's performance not been deficient.
(Strickland, at pp. 693-694; Ledesma, at pp. 217-218.)
2. Romero
In Romero, supra, 13 Cal.4th
at pages 529-530, the California Supreme Court held that section 1385,
subdivision (a) (hereafter § 1385(a))
permits a court acting on its own motion and "in furtherance of
justice" to strike prior felony conviction allegations in cases brought
under the Three Strikes law. Although
the Legislature has not defined the phrase "in furtherance of
justice" contained in section 1385(a), the California Supreme Court has
held that this language requires a court to consider both the " '
"constitutional rights of the defendant, and the interests of society represented
by the People" ' " (italics omitted) in determining whether to strike
a prior felony conviction allegation. (Romero, supra, 13 Cal.4th
at p. 530.)
In People
v. Williams (1998) 17 Cal.4th 148, 161 (Williams), the California
Supreme Court explained that, in determining whether to strike or vacate a
prior strike allegation or finding under the Three Strikes law "in
furtherance of justice" pursuant to section 1385(a), the trial court
"must consider whether, in light of the nature and circumstances of his present
felonies and prior serious and/or violent felony convictions, and the
particulars of his background, character, and prospects, the defendant may be
deemed outside the [Three Strikes law's] spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted of one or more
serious and/or violent felonies."
In People
v. Carmony (2004) 33 Cal.4th 367, 371, our high state court held a trial
court's decision not to dismiss a prior strike conviction allegation under
section 1385(a) is reviewed under the deferential abuse of discretion
standard. Carmony explained that
"a trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with
it." (Carmony, at p. 377.)
C.
Jennings
principally relies on Garcia,
trial counsel provided prejudicial ineffective assistance by failing at the
April 2012 sentencing hearing to discuss
Garcia and to argue that three of his four 2002 prior strike convictions
should be stricken under Romero,
prior convictions arose out of a single period of aberrant conduct. He asserts the Supreme Court in
strike convictions were the product of a single period of aberrant conduct,
"this [is] sufficient justification for striking [the] prior
strikes." We reject Jennings's
interpretation of Garcia and his
claim that his counsel provided ineffective assistance.
suggests, that a trial court must dismiss prior strike allegations against a
defendant under Romero when the
underlying felony offenses were committed during a single period of aberrant
conduct. In Garcia, the Supreme Court noted that the issue presented was
"whether a trial court, when applying the [Three Strikes law,] may
exercise its discretion under section 1385[(a)] so as to dismiss a prior
conviction allegation with respect to one count but not another." (Garcia,
supra, 20 Cal.4th at pp.
492-493.) The Garcia court held that "a court may exercise its discretion in
this way and that the trial court did not abuse its discretion in doing so
here." (Id. at p. 493.) The
defendant was convicted in that case of two counts of residential burglary, and
the court found true an allegation that he had five prior serious felony
convictions that qualified as strikes for purposes of the Three Strikes
law. (Ibid.) Those five strikes
"were for five burglaries [citation] that took place on separate occasions
during a short crime spree." (
The trial court imposed a sentence of 30 years to life under the Three
Strikes law for the first current burglary count; but, in the exercise of its
discretion under Romero, it dismissed
all five prior strike allegations as to the second count, which resulted in a
consecutive term of one year four months for that count. (Id.
at p. 495.) On appeal, the Attorney
General claimed the trial court abused its discretion by deciding to strike the
prior conviction allegations as to that second count. (Ibid.) After considering the various factors
discussed in Williams, supra,
17 Cal.4th 148, the Garcia court
rejected the Attorney General's claim, stating it "[could not] say"
that the trial court's decision to strike the prior strike allegations as to
the second burglary count fell outside the bounds of reason. (Garcia,
at p. 503.) The Garcia court concluded the trial court "acted within the
limits of its section 1385 discretion," noting that the defendant's aggregate
prison term of 31 years four months was "not lenient," the defendant
cooperated with police, his prior convictions "all arose from a single
period of aberrant behavior," his crimes were related to drug addiction,
and his criminal history did not include any actual violence. (Garcia,
at p. 503.) While the
had acted within its discretion, it did not
hold the trial court would have abused its discretion by denying the defendant's Romero
motion to dismiss the prior strike allegations.
Here,
Jennings's trial counsel cited Garcia
in his sentencing memorandum in SCD229068 only in support of his general
argument that the court, in sentencing Jennings, should exercise its discretion
under section 1385 by striking three of the four prior strike allegations.
However, as
the Attorney General correctly points out, defense counsel in effect
allegations should be dismissed under Romero
because Jennings committed the underlying 2002 prior felony offenses during a
single period of aberrant behavior (see Garcia,
supra, 20 Cal.4th at p. 503). Specifically, the record shows that in his
sentencing memorandum in SCD229068, which the court considered when it
sentenced Jennings in this matter, defense counsel argued in support of
Jennings's Romero motion that
Jennings "was only 21 years old" and had no prior criminal record
when he committed the underlying prior strike offenses in 2002. Counsel also argued in that memorandum that
Jennings "faces the very grim prospect of a life sentence because of the youthful
folly of a one-day burglary spree, followed by a dubious judicial
resolution, followed by a bizarre current offense." (Second italics added.) Defense counsel incorporated these arguments
into his sentencing memorandum in SCD236226, which the court also
considered.
Also,
during the April 2012 sentencing hearing, Jennings's counsel essentially
repeated these arguments, stating that, "my client faces life sentences on
these cases because of his foolhardy
behavior when he was a very young age, 21.
He picked up four strikes in one
case then." (Italics
added.) Counsel also stated, "We
plead for mercy from the court for consideration of his still young age."
(Italics added.)
The
foregoing record shows that Jennings's counsel did argue in support of
Jennings's Romero motion the point
that Jennings committed the underlying 2002 strike offenses during a single
period of aberrant behavior (see Garcia,
supra, 20 Cal.4th at p. 503). The court considered this argument but, in
light of the various Williams factors specific to Jennings and his
offenses, decided to deny the Romero
motion in the exercise of its discretion under section 1385(a). For the
foregoing reasons, we conclude Jennings has failed to meet his burden of
showing his trial counsel's performance fell below an objective standard of
reasonableness.
We also
conclude that Jennings's related claim─that his counsel rendered
ineffective assistance by failing to provide the court with a copy of the
reporter's transcript of the October 8, 2002 hearing at which he was sentenced
in SCS168375 for those prior strike convictions─is also unavailing. In support of this claim, Jennings asserts
the reporter's transcript of that hearing would have shown that the judge in
that case, in sentencing him, found as a "mitigating factor" that the
underlying residential burglaries "all . . . took
place in one day." Jennings asserts
that, "[b]y implication, the court found that the crimes were committed so
closely in time and place as to indicate a single
period of aberrant behavior."
(Italics added.)
However, it
is obvious that, although the court in SCS168375 could properly find by
implication in 2002 that Jennings committed those four prior burglaries during
what could then be deemed a single
period of aberrant behavior, his commission of the seven new felonies of which
he was convicted in the current cases─after he served time in prison as
punishment for his prior offenses─shows his felonious conduct in 2002 was
not aberrant. He is a habitual offender for purposes of the
Three Strikes law.
As the
record shows defense counsel did argue in support of Jennings's
point that Jennings committed the underlying 2002 strike offenses during a
single period of aberrant behavior, we conclude he has failed to show his
counsel violated his constitutional right to effective assistance of counsel by
failing to provide the court in the current matter with a copy of the
reporter's transcript of the 2002 sentencing hearing.
II. SECTION
654 (SCD236226)
Jennings
also contends the court erred by not staying under section 654 the execution of
the sentences it imposed in SCD236226 for his three grand theft convictions and
his conviction of unlawfully taking or driving of a vehicle. The Attorney General concedes the execution
of the sentences imposed for Jennings's grand theft convictions should have
been stayed under section 654, but claims the court properly did not stay
execution of the sentence imposed for Jennings's conviction of unlawfully
taking or driving of a vehicle. We
conclude the execution of the concurrent sentences imposed for all four of the
foregoing convictions should have been stayed under section 654.
A. Background
As noted, at the combined
sentencing hearing in SCD236226 and SCD229068, the court sentenced Jennings to
an aggregate prison term of 100 years to life plus five years. In the case at issue here, SCD236226, the
court sentenced him to consecutive 25-year-to-life terms for his three
residential burglary convictions, plus concurrent 25-year-to-life terms for his
three grand theft convictions and his conviction of taking of a vehicle.
B. Section 654
Section 654, subdivision (a) provides
in part: "An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision that provides
for the longest potential term of imprisonment, but in no case shall the act or
omission be punished under more than one provision."
Section 654 "precludes multiple
punishment for a single act or omission, or an indivisible course of
conduct" (People v. Deloza
(1998) 18 Cal.4th 585, 591) and ensures the defendant's punishment will be
commensurate with his or her criminal culpability (People v. Kramer (2002) 29 Cal.4th
720, 723). If a defendant suffers two
convictions and punishment for one is barred by section 654, "that section requires the sentence for one
conviction to be imposed, and the other imposed and then stayed." (People v. Deloza, at pp. 591-592,
italics added.)
Whether a
course of conduct is indivisible for purposes of section 654 depends on the intent and objective of the defendant,
not the temporal proximity of the offenses. (People v. Hicks (1993) 6
Cal.4th 784, 789.) Generally, if all the
criminal acts were incident to one objective, then punishment may be imposed
only as to one of the offenses committed.
(People v. Rodriguez (2009) 47 Cal.4th 501, 507; People v.
Garcia (1995) 32 Cal.App.4th 1756, 1781.)
The
question of whether a defendant harbored multiple criminal objectives is a
question of fact for the trial court to decide.
(People v. Coleman (1989) 48 Cal.3d 112, 162.) A trial court's determination that a
defendant held multiple criminal objectives will be upheld on appeal if it is
supported by substantial evidence. (People v. Osband (1996) 13 Cal.4th
622, 730-731.)
C. Analysis
As the
parties acknowledge, the trial record in SCD236226 shows Jennings unlawfully
entered and ransacked three homes, stole money and various items of personal
property, and took Winter's Audi. (AOB 8-10 & 27; RB 24; see 9RT 661:12-15,
665:15 & 671:7-22)! As substantial evidence shows the grand thefts were
target crimes Jennings intended to commit when he entered the homes and he
harbored the same criminal objective in committing the burglaries and grand
thefts, we conclude execution of the three concurrent 25-year-to-life sentences
the court imposed for Jennings's grand theft convictions should have been
stayed under section 654, and the judgment must be modified accordingly. (People v. Rodriguez,
We reject
the Attorney General's claim that the court properly did not stay execution of
the 25-year-to-life sentence it imposed for Jennings's conviction of unlawfully
taking or driving of a vehicle. The
Attorney General maintains that Jennings harbored a separate criminal intent in
taking Winter's Audi because his act of taking the car was
"essentially . . . an afterthought." According to the Attorney General, the trial
record shows that Jennings's intent was to "steal whatever valuables he
could find inside Winter's house," he did steal cash and valuables he
found inside the house and "then went into the garage afterwards, drove
the Audi away, removed a tire from the Audi, and abandoned it later that
day." These assertions are
unavailing. In People v. Bauer (1969) 1 Cal.3d 368, the California Supreme Court
rejected a similar claim. In that case,
the defendant and an accomplice gained entrance into the home of three elderly
women by pretending to be gas company employees who wished to check the stove,
tied the women up, ransacked the home, carried personal property belonging to
the victims to the garage, and drove away in a car belonging to one of the
victims. (Id. at p. 372.) A jury
convicted the defendant of first degree burglary, first degree robbery, grand
theft, and automobile theft. (
separate sentences imposed for the robbery and car theft convictions should be
upheld because the robbery was complete before the car theft began and the theft
of the automobile was an afterthought. (
court rejected this claim, explaining that "[t]he fact that one crime is
technically complete before the other commenced does not permit multiple
punishment where there is a course of conduct comprising an indivisible
transaction. [Citations.] And the
fact that one of the crimes may have been an afterthought does not permit
multiple punishment where there is an indivisible transaction." (Ibid.,
italics added.)
Here, like
the theft of the automobile in Bauer,
Jennings's act of unlawfully taking Winter's Audi, even if it was an
"afterthought" after he ransacked her home and stole personal
property he found inside the home, was part of an indivisible course of conduct
for purposes of section 654. Thus, the 25-year-to-life sentence the
court imposed for Jennings's taking-of-a-vehicle conviction should have been
stayed under section 654, and
the judgment must be modified accordingly.
(Bauer, supra, 1 Cal.3d at
p. 377.)
III. CLAIM
OF INSTRUCTIONAL ERROR (CALCRIM NO.
376)
Last,
Jennings contends the court violated his Sixth Amendment right to have each
element of the charged offenses proven beyond a reasonable doubt, as well as
his Fourteenth Amendment right to due process, when it instructed the jury in
SCD236226 with CALCRIM No. 376 regarding the possession of recently stolen
property as evidence of a crime. We
reject this contention.
A.
The court instructed the jury with the following version
of CALCRIM No. 376:
"If you conclude the defendant knew he possessed
property and you conclude that the property had, in fact, been recently stolen,
you may not convict the defendant of burglary, theft, or unlawful taking or
driving of a vehicle based on those facts alone. However, if you find the supporting state
evidence tends to prove his guilt, you may conclude that the evidence is
sufficient to prove he committed burglary or theft and/or unlawful taking or
driving of a vehicle. [¶]
and need not be enough by itself to prove guilt. You may consider how, where, and when the
defendant possessed the property, along with any other relevant circumstances
tending to prove his guilt of burglary or theft or unlawful taking or driving
of a vehicle. [¶] Remember that you may
not convict the defendant of any crime unless you are convinced that each fact
essential to the conclusion the defendant is guilty of that crime has been
B.
Jennings
contends that the portion of CALCRIM No. 376 stating "[t]he supporting
evidence need only be slight"
lowered the prosecution's burden of proof and deprived him of his
constitutional rights to due process of law and to have each element of a charged
offense proven beyond a reasonable doubt.
Specifically, he asserts that, "[b]y using the term 'slight,'
[CALCRIM No. 376] manifestly tells the jury that guilt may be inferred on the
basis of evidence which does not rise to the standard of proof beyond a
reasonable doubt," and it "allowed the jury in this case to convict
[him] of burglary, grand theft, and taking the car, when his possession of the
stolen property was combined with only 'slight' corroborating evidence." We disagree.
CALCRIM
376, like its predecessor CALJIC No. 2.15, "is an instruction generally
favorable to defendants; its purpose is to emphasize that possession of stolen
property, alone, is insufficient to sustain a conviction for a theft-related
crime. [Citations.] In the presence of at least some
corroborating evidence, it permits─but does not require─jurors to
infer from possession of stolen property guilt of a related offense such as
robbery or burglary." (People v.
Gamache (2010) 48 Cal.4th 347, 375 (Gamache).)
Also, the
California Supreme Court has previously held CALJIC No. 2.15 "does not
establish an unconstitutional mandatory presumption in favor of guilt
[citation] or otherwise shift or lower
the prosecution's burden of establishing guilt beyond a reasonable doubt [citations]." (Gamache, supra, 48 Cal.4th at
p. 376, italics added.) On this point,
the relevant language in CALCRIM 376 and CALJIC No. 2.15 is
"linguistically synonymous" and "constitutionally
indistinguishable." (People v.
Solorzano (2007) 153 Cal.App.4th 1026, 1036.) We are bound to follow and apply the
foregoing Supreme Court CALJIC No. 2.15 holdings to CALCRIM 376 (Auto Equity
Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), and, thus, we
must reject Jennings's contentions since they are contrary to them.
DISPOSITION
The judgment in SCD236226 is modified to stay under Penal
Code section 654 the execution of the 25-year-to-life sentences imposed for
Jennings's three grand theft convictions (counts 3, 5 & 7) and his
conviction of unlawfully taking or driving of a vehicle (count 2). As so modified, the judgment is
affirmed. The trial court is directed to
amend the abstract of judgment in that case to reflect this modification of the
judgment and to forward a certified copy of the amended abstract to the
Department of Corrections and Rehabilitation.
The judgment in SDC229068 is affirmed.
NARES,
Acting P. J.
WE CONCUR:
O'ROURKE, J.
AARON, J.
name="_ftn1" title="">[1] Our decision as to Jennings's related and pending petition
for a writ of habeas corpus, which we briefly discuss, post, is set forth in a separate order.
name="_ftn2" title="">[2] "We use the term 'strike' to describe a prior felony
conviction that qualifies a defendant for the increased punishment specified in
the Three Strikes law." (
932, fn. 2.)
