P. v. Law

Filed 9/27/07 P. v. Law CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Merced County. Hugh M. Flanagan, Judge.

Robert P. Whitlock, 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, Stephen G. Herndon and Wanda Hill Rouzan, Deputy Attorneys General, for Plaintiff and Respondent.

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Carlos Gilbert Law took cigarettes from a gas station market where he elbowed and threatened a market clerk. A jury found him guilty of second degree robbery ( 211,^[1]212.5, subd. (c); count one), second degree burglary ( 459; count two), and petty theft with a prior ( 488, 666; count three). The court sentenced him to an aggregate five-year eight-month sentence an aggravated five-year term for second degree robbery ( 211, 212.5, subd. (c), 213, subd. (2); count one) and a consecutive eight-month (one-third middle) term for second degree burglary ( 459, 460, subd. (b), 461, 2; count two) and stayed sentence on the petty theft with a prior ( 488, 666; count three).

On appeal, Law challenges the lack of a probable cause instruction and the lack of a unity instruction, argues insufficiency of the evidence of incarceration for the prior in the petty theft with a prior, claims that his convictions of both robbery and petty theft with a prior constitute impermissible multiple convictions, and contends that there is reversible error in the sentencing on both the burglary and the robbery. We will strike from the judgment the consecutive sentence on the count two burglary and will remand the case with directions to impose a stay of sentence on that count, will modify to misdemeanor petty theft the judgment of conviction on the count three felony petty theft with a prior and will remand the case for a new sentencing hearing on that count, and otherwise will affirm the judgment.

DISCUSSION

1. Lack of Probable Cause Instruction

Law argues that instructing on the right to detain a person whom a merchant has probable cause to believe is stealing merchandise, without instructing on the definition of probable cause, impermissibly lowered the prosecutions burden of proof. The Attorney General argues the contrary.

The parties agree that a court has a sua sponte duty to instruct sua sponte only on those general principles of law that are closely and openly connected with the facts before the court and necessary for the jurys understanding of the case (People v. Price (1991) 1 Cal.4th 324, 442) and that an instruction allowing a jury to determine whether a defendant is probably guilty falls short of the Sixth Amendment requirement of a jury verdict of guilty beyond a reasonable doubt (Sullivan v. Louisiana (1993) 508 U.S. 275, 278). The parties disagree, however, about whether the following instruction, which uses but does not define the term probable cause with reference to a merchants right to detain a person on the premises, passes constitutional muster:

A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchants premises. [] In making the detention, a merchant may use a reasonable amount of nondeadly force necessary to protect himself and to prevent the escape of the person detained or the loss of tangible or intangible property. (Peo. Spec. Inst. No. 1; italics added; cf. 490.5, subd. (f)(1).^[2])

Citing People v. Hurtado (2002) 28 Cal.4th 1179 (Hurtado), Law seeks to analogize the use, without definition, of the term probable cause here to the use, likewise without definition, of the term probable cause in the Sexually Violent Predators Act (SVPA). Hurtado noted that the term has an established meaning in connection with criminal proceedings, signifies a level of proof below that of proof beyond a reasonable doubt, or even proof by a preponderance of the evidence, and refers to a state of facts as would lead a man of ordinary caution and prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused. (Id. at pp. 1188-1189.) By applying the well-established rule of law that where the legislature uses terms already judicially construed, the presumption is almost irresistible that it used them in the precise and technical sense which had been placed upon them by the courts, Hurtado imputed the established meaning of probable cause to the Legislatures use of that term in the SVPA. (Id. at p. 1188.) Here, on the other hand, the instruction imputes to neither the jury nor the prosecution a merchants probable cause to believe a suspected thief is on the premises. Hurtado is inapposite.

Citing People v. Shoals (1992) 8 Cal.App.4th 475 (Shoals), Law argues that the language of section 490.5 did not fully apprise the jury of the technical definition of a crucial term needed to determine the existence of an element of the crime. (Id. at p. 490; italics added.) In Shoals, the element at issue was opening or maintaining a place to sell, give away, or use a controlled substance. (Id. at p. 489.) Here, no element of a crime is at issue. The term probable cause in section 490.5 authorizes a merchant to detain a suspect and provides a defense to a civil action arising out of a detention but plays no role at all in defining a crime. (See 490.5, subds. (f)(1), (g).) Shoals is inapposite.

The court amply instructed the jury both before and after trial on the prosecutions burden of proof beyond a reasonable doubt. (CALCRIM Nos. 103, 220.) Laws argument that the lack of a definition of probable cause in the instruction allowed the jury to find him guilty by a lesser standard than proof beyond a reasonable doubt is meritless.

2. Lack of Unanimity Instruction

Law argues that the court erred by not giving a unanimity instruction. The Attorney General argues the contrary.

The parties agree that Law was entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged. (People v. Jones (1990) 51 Cal.3d 294, 305 (Jones).) The parties disagree, however, about whether on the record here the court had a duty to give a unanimity instruction sua sponte.

Law argues that the court had a duty to so instruct since his conviction on one count might be based on more than one discrete event. He focuses on the prosecutors argument that to find him guilty the jury had to have not only a taking, which is not in dispute, but also force or fear, on which the prosecutor failed to make an election and argued instead that the jury did not have to agree. Half of you may think its fear. Half of you may think its force. All of you may think its both, she noted. You do not have to agree on force or fear element. We have both, she asserted. Paraphrasing his attorneys argument to the jury, Law admits two takings of cigarettes but contends that insufficient evidence of either force or fear during the second taking required the court to give a unanimity instruction.

The Attorney General argues that the court had no duty to so instruct since Law committed a single robbery with the multiple acts of force being different phases of an ongoing process of trying to overcome the clerks resistance. He characterizes the evidence as showing that Law committed but a single robbery during which he employed multiple means, e.g., struggling with [the clerk], elbowing [him], and threatening him if he did not desist, to effect his escape from the gas station. He argues that there were no multiple discrete robberies to support giving a unanimity instruction but simply evidence of the various means of force or fear [Law] used to try to escape from the store with the cigarettes.

The record shows that the clerk did not notice Law take cigarettes from behind the counter at 11:44 p.m., that Law left the store at 12:02 a.m., that a surveillance camera showed that after he returned to the store at 12:04 a.m. he walked out of camera range behind the counter, that when he walked back into camera range with cigarettes in his hand the clerk noticed the cigarettes, that the clerk grabbed him by his jacket to keep him at the store until police arrived, that Law shoved his elbow into the clerk and threatened to kick his ass, and that the clerk, in fear of Law and in deference to a fellow workers plea to let him go, stopped trying to detain him. Law seeks to characterize as three separate robberies his continuous course of conduct of force and fear in the commission of a single robbery. Contrary to his argument, the record shows that he committed only one robbery, so the court had no duty to give a unanimity instruction. Even without that instruction, he received the verdict in which all 12 jurors concurred that Jones guarantees him.

3. Insufficiency of Evidence of Petty Theft with a Prior

Law argues insufficiency of the evidence of incarceration for the prior in the petty theft with a prior. The Attorney General acknowledges the insufficiency of the evidence but argues estoppel.

The information charged Law with a violation of section 666/488[^[3]] of the California Penal Code, petty theft with prior conviction said defendant having been previously convicted of the crime of theft and having served a term in a penal institution or having been imprisoned as a condition of probation for said offense and listed two priors with service of a term of incarceration, a section 484^[4]in Hollywood, California, on July 11, 2005, and a theft by taking in Douglas, Georgia, on January 22, 2004. On the second day of trial, out of the presence of the jury, Law stipulated that he had two prior misdemeanor petty theft convictions, one in California, the other in Georgia. After the jury found him guilty of Petty Theft, a violation of Section 488 of the California Penal Code, count 3 of the Information, the court imposed and stayed the mitigated 16-month term for felony petty theft with a prior. ( 18, 488, 654, 666.)

The heart of Laws argument is the statute authorizing punishment of petty theft with a prior as either a felony or misdemeanor for a person with incarceration for the prior. ( 666.^[5]) He contrasts the statute authorizing punishment of petty theft solely as a misdemeanor for a person with no prior ( 490^[6]) and emphasizes the lack of any evidence at all in the record of his incarceration for a prior.

As both parties acknowledge, the California Supreme Court has held that the prior conviction and incarceration requirement of section 666 is a sentencing factor for the trial court and not an element of the section 666 offense that must be determined by a jury. (People v. Bouzas (1991) 53 Cal.3d 467, 480 (Bouzas).) The Attorney General characterizes the issue before us as how a reviewing court is to proceed when the parties and the court below apparently believed that the prosecutors burden of proof as to this sentencing fact was being obviated by a defendants admission/stipulation.

The Attorney General draws our attention to several record references to Laws priors. One shows that, during the colloquy about the stipulation, his attorney mused, Well, being that theres a stipulation, I dont know that its necessary to have documentary evidence, and the prosecutor replied, Hes admitting them, and the court stated, So the stipulations received. Another shows that the probation report, which the court considered before sentencing, includes an ambiguous statement about 5 days jail or fine as to the California prior and a clear statement about jail time served as to the Georgia prior. At the probation and sentencing hearing, the prosecutor represented to the court that Law was committed to the Department of Corrections in Georgia but adduced no evidence to that effect, and the court, notwithstanding an off-handed comment about prior terms, made no finding that he had served a term of incarceration.

The Attorney General intimates that the prosecutor had certified copies of the alleged priors that she was ready to, and possibly did, submit to the court, but the record references on which he relies fail to support his conjecture. (Italics added.) On that record, the Attorney Generals speculation about whether any documents remained in evidence is as disingenuous as his argument that it was through the defensesown action that more evidence was not made a formal part of the record. (Italics added.) To the contrary, Law simply stipulated to his priors. By doing that, he satisfied one aspect the prior conviction requirement but not the other aspect the incarceration requirement of the sentencing factor in Bouzas. (See Bouzas, supra, 53 Cal.3d at p. 480.) His stipulation to the one in no way impaired the prosecutors ability to discharge her duty to satisfy the other. She did not adduce competent evidence to that effect, however, so the record obliges us to modify to misdemeanor petty theft the judgment of conviction on the count three felony petty theft with a prior and to remand the case for a new sentencing hearing on that count.

4. Convictions of Both Robbery and Petty Theft with a Prior

On the premise that his convictions of both robbery and petty theft with a prior constitute impermissible multiple convictions, Law argues that the latter conviction cannot stand. The Attorney General argues the contrary.

The parties agree that People v. Bailey (1961) 55 Cal.2d 514 states the governing rule. Whether a series of wrongful acts constitutes a single offense or multiple offenses depends upon the facts of each case, and a defendant may be properly convicted upon separate counts charging grand theft from the same person if the evidence shows that the offenses are separate and distinct and were not committed pursuant to one intention, one general impulse, and one plan. (Id. at p. 519.) The parties disagree, however, on how to apply the rule to the record here.

Law argues that even though the second theft occurred several minutes after the first theft he committed one indivisible act involving one victim, so the robbery and the petty theft were part of a single indivisible transaction and the petty theft conviction is necessarily reversible as a lesser included offense of the robbery conviction. The Attorney General, on the other hand, argues that after Law committed the first theft he was apparently able to reach a place of relative safety, since he was outside the store for about six minutes before walking back inside the store and committing the second theft, so there were multiple crimes, not just multiple items taken during a single crime, and his convictions of both robbery and petty theft were proper.

A defendants criminal objective is determined from all the circumstances and is primarily a question of fact for the trial court, whose findings will be upheld on appeal if there is any substantial evidence to support it. (People v. Braz (1997) 57 Cal.App.4th 1, 10.) Implicit in the record is the courts finding that the robbery and the petty theft were not part of a single indivisible transaction. Substantial evidence supports the courts finding. We reject Laws argument.

5. Robbery Sentence

Law argues that the imposition of the aggravated term for the robbery without jury findings on circumstances in aggravation violated his federal constitutional rights to due process and jury trial. The Attorney General argues that Law forfeited his right to appellate review, that the imposition of the aggravated term was proper, and that error, if any, was harmless.

First, we address the Attorney Generals forfeiture argument. The governing law in California at the time of Laws sentencing was that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence under California law does not implicate a defendants Sixth Amendment right to a jury trial. (People v. Black (2005) 35 Cal.4th 1238, 1244 (Black I), overruled by Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856, 876; 127 S.Ct. 856, 871] (Cunningham).) Had he requested a jury trial on circumstances in aggravation, his request clearly would have been futile, because the trial court would have been required to follow our decision in Black I and deny the request. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4 (Sandoval).) Law did not forfeit his right to appellate review.

Second, we address Laws argument about the imposition of the aggravated term at the probation and sentencing hearing. The court, after consideration of the probation officers report, found at the probation and sentencing hearing that no circumstance in mitigation was true (Cal. Rules of Court, rules 4.423^[7]) and that three circumstances in aggravation were true that the crimes were carried out with some planning and sophistication and professionalism, that hes not performed satisfactorily on parole, and that his conduct is increasing at least in the seriousness and the contemplation and the planning and the performing of these offenses (Cal. Rules of Court, rules 4.421(a)(8), 4.421(b)(3), 4.421(b)(5)).

Two of those three circumstances in aggravation Laws poor performance on parole and the increasing seriousness of his criminal conduct arise from his record of prior convictions that the probation officers report documented as (1) a theft in Omaha, Nebraska on May 27, 2003, (2-3) a motor vehicle theft and a driving with a revoked or suspended license in Douglas County, Georgia on January 22, 2004, (4) a battery in Columbia County, Florida on May 6, 2004, (5) a theft in Howard County, Maryland on July 20, 2004, and (6) a theft in Hollywood, California on July 11, 2005. The court found that there is nothing in mitigation that would offset the factors in aggravation and noted that Laws record of a number of different theft offenses in a number of different states confirmed his history of being unable to comply with the law.

Except for a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Cunningham, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 873; 127 S.Ct. at p. 868], quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) (italics added).) The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. (Cunningham, supra, [549] U.S. at p. __, [166 L.Ed.2d at p. 873] 127 S.Ct. at p. 868; Blakely [v. Washington (2004)] 542 U.S. [296,] 301; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224 [] (Almendarez-Torres). (People v. Black (2007) 41 Cal.4th 799. 818 (Black II).) [R]ecidivism is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. (Almendarez-Torres, supra, at p. 243.) (Black II, supra, 41 Cal.4th at p. 818.)

In short, the imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Black II, supra, 41 Cal.4th at p. 816; italics added.) Laws record of prior convictions justified the courts imposition of the aggravated term. Error, if any, in the courts use of pre-Cunningham verbiage from the rules of court about his poor performance on parole and the increasing seriousness of his criminal conduct, rather than post-Cunningham verbiage specifically about his record of prior convictions, was harmless beyond a reasonable doubt. (See Sandoval, supra, 41Cal.4th at pp. 838-839.)

6. Burglary Sentence

On the premise that he had the identical intent and objective in committing the robbery and the burglary, Law argues that section 654 mandates a stay of his consecutive sentence for the burglary. The Attorney General argues the contrary.

Law relies primarily on People v. Le (2006) 136 Cal.App.4th 925 (Le), in which a defendant who committed a robbery and a burglary at a drugstore had a right to a section 654 stay of his consecutive sentence for the burglary. (Id. at pp. 930-932.) The Attorney General characterizes the holding in Le as appropriate to a defendant who made a single entry and committed a single robbery but not to Law, who decided to be more ambitious by committing yet another entry followed by a separate theft.

Had the prosecutor charged two burglaries and the jury found Law guilty as charged, a record appropriate to the Attorney Generals argument might have been before us. On the record that actually is before us, Le states the applicable rule, which obliges us to strike from the judgment the consecutive sentence on the count two burglary and to remand the case with directions to impose a stay of sentence on that count.

DISPOSITION

The consecutive sentence on the count two burglary is stricken from the judgment and the case is remanded with the direction to impose a stay of sentence on that count. The judgment of conviction on the count three petty theft with a prior is modified from felony petty theft with a prior to misdemeanor petty theft and the case is remanded with the direction to hold a new sentencing hearing and impose a new sentence on that count.

The court is directed to issue, and to send to each interested person a certified copy of, an amended abstract of judgment. Otherwise the judgment is affirmed.

_____________________

Gomes, J.

WE CONCUR:

_____________________

Vartabedian, Acting P.J.

_____________________

Kane, J.

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^[1]All statutory references are to the Penal Code unless otherwise noted.

^[2]Section 490.5, subdivision (f)(1): A merchant may detain a person for a reasonable time for the purpose of conducting an investigation in a reasonable manner whenever the merchant has probable cause to believe the person to be detained is attempting to unlawfully take or has unlawfully taken merchandise from the merchants premises. (Italics added.)

^[3]Section 488: Theft in other cases is petty theft. (See, e.g., 486 [defining theft as either grand theft or petty theft], 487 et seq. [defining grand theft and other kinds of petty theft].)

^[4]Section 484 defines theft generally.

^[5]Section 666: Every person who, having been convicted of petty theft and having served a term therefor in any penal institution is subsequently convicted of petty theft, then the person convicted of that subsequent offense is punishable by imprisonment in the county jail not exceeding one year, or in the state prison. (Italics added.)

^[6]Section 490: Petty theft is punishable by fine not exceeding one thousand dollars ($1,000), or by imprisonment in the county jail not exceeding six months, or both.

^[7]Cited are the versions of the rules of court in effect until January 1, 2007.