P. v. McElveen

Filed 6/18/08 P. v. McElveen CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

Defendant Thomas Douglas McElveen appeals the judgment and sentence imposed after a jury returned guilty verdicts on charges in case number SC150298A that he committed felony petty theft with a prior (Penal Code,  666)[1] and misdemeanor battery ( 242). In case number SC133009A, defendant appeals the trial courts decision to revoke his probation. Defendant contends: (1) He was denied his federal constitutional right to be present during all critical phases of his trial when the trial court allowed a jury readback to occur outside his presence; (2) his counsels failure to advise him he had a constitutional right to be present during the readback constitutes ineffective assistance; (3) the trial court abused its discretion in sustaining a petition for revocation of probation in SC133009A; (4) he was denied his federal constitutional right to notice of the allegation upon which probation was revoked; (5) the trial court erred in allocating pre-sentence custody credits; and, (6) he was denied his federal due process rights and equal protection rights as a result of the trial courts failure to award pre-sentence custody credits. Finding defendants contentions without merit, we affirm.

Factual and Procedural Background

Walter Henriquez, a security guard at the Safeway grocery store in Mill Valley, was on duty in plain clothes on October 28, 2006. He saw defendant place a bottle of laundry detergent and a package of hair dye into his shopping cart and exit the store without paying for the items. Henriquez confronted defendant in the parking lot and accompanied him back to the store. Once inside the store, defendant pushed his shopping cart aside and attempted to leave. Henriquez tried to detain defendant and a struggle ensued, during which defendant struck Henriquez several times. Another security guard and two paramedics who were in the store helped Henriquez to subdue defendant so Henriquez could place him in handcuffs. The items defendant took from the store were valued at $31.87.

Based on these events, an information accusing defendant of felony petty theft with a prior (count 1) and misdemeanor battery (count 2) was filed on December 1, 2006. As to count 1, the information also alleged defendant had suffered three prior theft convictions and two previous felonies. Presentation of evidence in the trial on this matter began on January 25, 2007, and concluded by mid-afternoon the same day. The prosecution presented three witnesses Henriquez, Eric Schroth, one of the paramedics who came to Henriquez assistance, and Tauelangi Tiueti, the other security guard in the store. The defense presented one witness Tod Hune, assistant manager at the Safeway store on the day of the incident.

Before bringing in the jury on the morning of trial, the court stated: The other issue this morning that we needed to take up is the probation violations. . . . The Court presumed when we discussed it yesterday that the Court will hear the probation violations concurrent with the evidence in the trial. At defendants request for clarification, the court added: Those probation violations, you denied those. Weve entered a denial to the violations. Those matters, you have a right to a hearing on. The District Attorney is basing the violations on the same evidence thats going to be presented here at trial. Defense counsel agreed the court should hear the probation violation evidence concurrent with the trial evidence so long as defendant had the opportunity to testify on the matter outside the presence of the jury and before the court made a finding. All parties agreed to this procedure for receiving evidence on the alleged probation violations.

Closing arguments were delivered on the morning of January 26, 2007, and the jury retired to begin deliberations after receiving its instructions from the trial court. During afternoon deliberations, the jury requested a readback of testimony, and the following colloquy ensued:

THE COURT: Counsel, as we discussed informally, the jury has requested the re-reading of the testimony of the witness [H]enriquez and the witness Hune. I have sent the message to the jury to be more specific about what portion of the testimony they desire. Their response is all of it. One of the concerns the Court has is any portion of the testimony that was stricken and that should not be reread.

PROSECUTOR: Thats correct.

THE COURT: The other part is where objections were sustained, there is no evidentiary value to re-reading the question.

DEFENSE COUNSEL: Thats fine.

THE COURT: So my question to you is can we stipulate that the court instruct the reporter not to read questions to which objections were sustained and not to read anything that was stricken? I know each of you had motions to strike during the testimony of the witnesses that the Court had granted.

DEFENSE COUNSEL: Of course, your Honor.

PROSECUTOR: Ill stipulate.

THE COURT: I dont know any way to expedite this. [They] were emphatic after my request to become more specific that they want all the testimony. So according to the stipulation we have two separate court reporters. We have one of them right now. Ill have her read back the Hune testimony. The reporter is instructed not to read questions to which an objection was sustained and not to read any testimony [there] was a motion to strike granted on. Maybe we can go one step further, that the reporter does not have to read the objections and rulings on objections.

DEFENSE COUNSEL: Of course.

THE COURT: In other words, so the jury just gets admissible testimony. You okay with that?

DEFENSE COUNSEL: Yes.

PROSECUTOR: Yes.

THE COURT: That might save some time and possible prejudice by them hearing objections and so forth.

DEFENSE COUNSEL: And, Judge, well waive any irregularities and questions that the lawyers not be present in the jury room for this.

THE COURT: All right. Its agreed then that . . . you each waive your presence and Mr. McElveen youll waive your presence, well simply have the court reporter ―

DEFENDANT: Yes.

THE COURT: ― either in the closed courtroom or in the jury room read that testimony.

DEFENSE COUNSEL: Yes.

DEFENDANT: Okay.

THE COURT: You in agreement to that?

DEFENDANT: Yes, sir.

PROSECUTOR: Thats fine.

THE COURT: There will be no new evidence. Its simply a read back just as though we handed them a transcript. I think that should be all right.

[] . . . [] 

THE COURT: This reporter will go and read the Hune testimony, and the other reporter that took [H]enriquez testimony, we have her come in.

DEFENSE COUNSEL: Shell be admonished similarly to the objections?

THE COURT: Yes.

At around 4:30 p.m. that afternoon, the jury returned a guilty verdict on both counts. After the jury had been discharged, the court turned to the matter of the three probation violation petitions still pending in case numbers CR143196A, SC133009A (on appeal here) and SC144603A. Defense counsel told the court he had been trying to explain to defendant that basically the law abiding life violations in the three probation cases . . . would have been proven by the jury verdict leaving only the allegations that defendant did not enroll in a batterers program and tested positive for cocaine. The court further explained to defendant that as a practical matter, its simply a question of were you in violation of probation or not. All the court has to find is any of the terms the defendant being in violation of them, the state withdraw the other allegations and submit it on these allegations[sic]. The court stated: The Court is not proceeding on the failure to enroll in the program or the testing. We dont have anything on that. Defense counsel agreed to submit the matter on that basis. The court ruled that on the basis of the evidence submitted at trial, specifically evidence of failing to obey all laws, . . . its the Courts finding that those acts did occur [theft and battery] and thus the defendant is found in violation of his probation in each of those matters.

A sentencing hearing was held on February 26, 2007. Before imposition of sentence, defendant requested leave to move for a new trial based in part on the fact he was not present during the readback of testimony to the jury. The court allowed the motion and denied it on the merits. Subsequently, the court sentenced defendant to the midterm of two years in state prison on count one (felony petty theft with a prior) and 180 days on count two (misdemeanor battery) to run concurrent with the sentence imposed on count one. The court turned to the issue of custody credits after noting it had not been mentioned in the probation report. The following colloquy ensued:

DEFENDANT: What about time on probation, those credits?

THE COURT: The credits you receive[] against your current sentence are what time you actually served in custody, pending this matter. [] As I understand it, counsel, Mr. McElveen has not been serving a term on any other cases.

DEFENDANT: I had time in custody on some of those arrests as well.

THE COURT: Im going to get to the probation violations. Dont worry about that. [] We need to calculate what credits youre going to get on this case. [] If you were serving a term on another case and not receiving credits, I have no information of you serving a term on any other case. Therefore, you receive full credits from the date of the offense. The court established the date of the offense as October 28, 2006, and calculated 122 days actual time credit. To this, the court added 61 days good conduct credits for a total of 183 days credit. Turning to the probation violations, the court ruled: Your probations are terminated and the remaining sentences will be served concurrently with the sentence you are serving on this case. [] What this means is that when you get out of prison, you dont have any more probation, you have served your sentences. [] The only thing you have to worry about is your parole. . . . In SC150298A (petty theft and battery convictions), defendant filed a timely notice of appeal on February 26, 2007. On April 10, 2007, defendant filed a timely notice of appeal in SC133009A (probation violation matter).

Discussion

A. Readback of Trial Testimony

Defendant contends his absence from the readback of testimony to the jury was in violation of his federal constitutional right to be present at all critical phases of trial. Defendant asserts his presence was critical because the court allowed the entire prosecution case to be repeated through the readback without an opportunity for appellant to gauge the propriety of the readback so as to ensure fairness. We reject defendants negative characterization of the trial courts careful handling of the readback and find no violation of his constitutional rights in the procedure adopted and agreed to by him and his counsel.[2]

Broadly stated, a criminal defendant has a right to be personally present at certain pretrial proceedings and at trial under various provisions of law, including the confrontation clause of the Sixth Amendment to the United States Constitution [and] the due process clause of the Fourteenth Amendment to the United States Constitution. . . . (People v. Cole (2004) 33 Cal.4th 1158, 1230.) The Sixth Amendments Confrontation Clause focuses on the right to be personally present if the defendants appearance is necessary to prevent interference with [his] opportunity for effective cross-examination. [Citation.] (Id. at p. 1231, citing People v. Waidla (2000) 22 Cal.4th 690, 741.) The Fourteenth Amendments due process clause, on the other hand, focuses on a defendants right to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge. [Snyder.] Although the Court has emphasized that this privilege of presence is not guaranteed when presence would be useless, or the benefit but a shadow, due process clearly requires that a defendant be allowed to be present to the extent that a fair and just hearing would be thwarted by his absence[.] Thus, a defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure. (Kentucky v. Stincer (1987) 482 U.S. 730, 745, citing Snyder v. Massachusetts (1934) 291 U.S. 97, 105-108, overruled on other grounds by Malloy v. Hogan (1964) 378 U.S. 1..)

Patently, defendants Sixth Amendment rights were not violated by a readback of testimony because his opportunity to cross-examine had been fully satisfied during the witnesses live testimony, which was not altered or added to during the readback. Regarding his due process claim, we first note that the high court has not addressed the issue of whether a readback is a critical stage of trial. (La Crosse v. Kernan (9th Cir. 2001) 244 F.3d 702, 707-708.) However, our own Supreme Court has on several occasions rebuffed the notion that a defendants presence is required at a readback of testimony under considerations of due process. Thus, [i]n People v. Horton (1995) 11 Cal.4th 1068, with no showing that the accuseds personal presence could have assisted the defense in any way, the court held that his attorneys stipulation to a readback without his or his attorneys presence was not ineffective assistance. (Citation.) The reading back of testimony ordinarily is not an event that bears a substantial relation to the defendants opportunity to defend, the court observed. (Citation.) . . . [Also,] the court held in People v. Bloyd (1987) 43 Cal.3d 333, that the accuseds attorneys stipulation to the absence of attorney and client alike from a readback did not abridge the accuseds federal constitutional right to counsel or state constitutional right to be present at trial even in the absence of his express consent. (Citation.) Likewise, where the accuseds attorney purported to waive the accuseds presence, various portions of testimony were reread to the jury, and the appellate briefing made no contention that any other exchanges between the judge and jury, or counsel and jury, took place, the court in People v. Hovey (1988) 44 Cal.3d 543, 585, declined to grant relief since rereading of testimony ordinarily would not be an event which bears a substantial relation to the defendants opportunity to defend, and nothing in the present record indicates that defendants personal presence would have assisted the defense in any way.  (People v. McCoy (2005) 133 Cal.App.4th 974, 982-983.)

Here, we conclude defendant has failed to establish that a fair and just hearing w[as] thwarted by his absence at the readback of testimony. (Snyder v. Massachusetts, supra, 291 U.S. at pp. 107-108.) First, defendant, as well as his counsel, expressly agreed in open court to forego their presence during the readback of the testimony. In addition, the trial court, after consulting with defendant and his counsel, carefully admonished the court reporters to readback only admissible testimony and to omit questions to which an objection was sustained and not to read any testimony [there] was a motion to strike granted on. Also, the readback was limited to the key prosecution witness and the key defense witness. Accordingly, defendant suffered no deprivation of the due process rights articulated in Snyder v. Massachusetts, supra, to be present at a critical phase of the trial.[3] (Snyder v. Massachusetts, supra, 291 U.S. at pp. 105-106 [the defendant has the privilege under the Fourteenth Amendment to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge]; see also McCoy, supra, 133 Cal.App.4th at pp. 981, 983 [holding that court committed no constitutional error in allowing a readback of testimony to the jury over express defense objection out of his and his attorneys presence where trial court carefully admonished the jury before the readback].) Moreover, because defendants claim of ineffective assistance of counsel is based on the same alleged violation of his constitutional rights, it too must fail. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 83 [where no error is found related claim of ineffective assistance of counsel . . . likewise must fail].)

B. Petition for Revocation of Probation

Defendant contends the trial court abused its discretion in sustaining the petition for revocation of probation because there was no evidence that appellant violated the conditions alleged in the petition to revoke probation. Defendant notes that the petition for revocation filed by the probation officer on December 4, 2006, alleged he had violated probation by failing to report regularly as directed by the probation officer, testing positive for cocaine and failing to enroll in a batterers treatment program. Defendant asserts there was no evidence presented on these alleged violations and therefore the trial court abused its discretion by amending the petition sub silentio to permit revocation for failure to live a law abiding life on the basis of his current offenses. Defendant further contends he was denied his federal due process right to notice of the charge of failing to be a law-abiding citizen as a basis for revocation of probation.

The procedural limits on the revocation of the conditional liberty created by probation imposed by the Due Process Clause of the Fourteenth Amendment are as follows: [A] final revocation of probation must be preceded by a hearing. . . . The probationer is entitled to written notice of the claimed violations of his probation; disclosure of the evidence against him; an opportunity to be heard in person and to present witnesses and documentary evidence; a neutral hearing body; and a written statement by the factfinder as to the evidence relied on and the reasons for revoking probation. [Citation.] The probationer is also entitled to cross-examine adverse witnesses, unless the hearing body specifically finds good cause for not allowing confrontation. Finally, the probationer has a right to the assistance of counsel in some circumstances. (Black v. Romano (1985) 471 U.S. 606, 610, 611-612.) These procedures protect the defendant against revocation of probation in a constitutionally unfair manner. (Id. at p. 613.)

The record reflects that defendant received not only adequate notice of the basis for revocation but also the full panoply of procedural protections noted above. On March 17, 2008, we granted respondents motion to augment the record with a petition for revocation of probation in case number SC133009A filed by the district attorneys office on October 30, 2006. The sole basis alleged in the district attorneys petition for revocation of probation was defendants failure to lead a law abiding life due to his current offense of committing petty theft with a prior on October 28, 2006. The petition states that arraignment on the petition is set for October 30, 2006, at 1:30 p.m., and indicates a copy of the petition was sent to defendant.

Defendant, however, asserts respondent has failed to demonstrate he was provided adequate and proper notice of the law-abiding citizen violation. That assertion finds no support in the record. First, we take judicial notice of the docket in Superior Court in Case No. SC133009A obtained on the courts own motion from the clerks office of the Marin County Superior Court. The docket shows that defendant was arraigned on the district attorneys petition on October 30, 2006, and that he appeared with counsel on November 2, 2006, and denied the allegations of the petition.

If that alone was not enough to demonstrate adequate notice, the record shows the parties knew a petition to revoke had been filed by the district attorney as well as by the probation department. Thus, when defendant appeared on December 6, 2006, for a bail hearing, arraignment on the information, and arraignment on the petition to revoke filed by the probation department on December 4, 2006, the trial court referred to the December 4 petitions as the newly filedprobation petitions. The court states: My thought, Counsel, would be as to the Peoples petitions that are filed . . . which appear to me to be essentially the same allegations as the trial issues, those could be heard contemporaneous[ly] . . . with the trial subject to any additional evidence either side may wish to present. Is that agreeable? After conferring with defendant, defense counsel requested that as to the probation petitions, we would ask that those trail. The trial court concurred, noting they involve different allegations, but added, But the Peoples petitions on the same subject as the trial should be heard, I believe, contemporaneous with the trial. . . . Defense counsel agreed.

In addition, on the morning trial commenced, the court reminded defendant that the District Attorney is basing the violations on the same evidence thats going to be presented here at trial. Once more, after the jury had been discharged, the court told defendant it was not proceeding on the failure to enroll in the program or the testing. We dont have anything on that. In sum, the record demonstrates defendant had notice of the basis for revocation and therefore the trial court did not abuse its discretion in revoking probation for defendants failure to lead a law abiding life. Accordingly, defendants related constitutional due process claim also fails.

C. Pre-Sentencing Custody Credits

Defendant states that at the sentencing hearing in case number SC133009A, the trial court placed him on supervised probation on condition, inter alia, that he serve 60 days in county jail and participate in a residential treatment program. Defendant contends that the trial court should have awarded custody credits for those 60 days he spent in county jail, as well as credits for time he spent in a residential treatment program, against the term imposed in case number SC133009A for violation of probation.

Credit for time served is governed by section 2900.5, which provides that [i]n all felony and misdemeanor convictions . . . when the defendant has been in custody, including, but not limited to, any time spent in a jail, . . . rehabilitation facility . . . or similar residential institution, all days of custody of the defendant, including days served as a condition of probation in compliance with a court order, and including days credited to the period of confinement pursuant to Section 4019 [credit for good behavior], shall be credited upon his or her term of imprisonment. . . . ( 2900.5, subd. (a) [italics added].)

In this instance, however, the trial court was not obligated to calculate and award any further credits for prior custody and treatment in connection with SC133009A because it did not impose a term of imprisonment for the violation of probation. Upon revocation of probation in a case where, as here, imposition of sentence was suspended and no sentence was ever imposed, a court is empowered to pronounce judgment for any time within the longest period for which the person might have been sentenced. ( 1203.2, subd. (c); see also Cal. Rule of Court 4.435(b)(1).) Alternatively, a court is also empowered to terminate the period of probation, and discharge the person so held in the interests of justice when warranted by a probationers good conduct and reform. ( 1203.3, subd. (a).)

Here, the trial court did not pronounce judgment and impose a term of imprisonment. Instead, the record shows the trial court revoked and terminated probation, and discharged the defendant, based upon what it characterized as defendants respectful attitude and courteous demeanor: The respect that you have shown here says that perhaps after serving what is really a fairly short sentence now, that you might change your lifestyle and perhaps leaving these probations in effect just put[s] all the more burden on your mental state. [] At this time, its the Courts opinion that we relieve that burden. Your probations are terminated and the remaining sentences will be served concurrently with the sentence you are serving on this case. [] What that means is that when you get out of prison, you dont have any more probation, you have served your sentences. [] The only thing you have to worry about is your parole [on the felony petty theft conviction]. . . . The courts decision to terminate probation and discharge defendant is reflected in the report and judgment court minute order in SC133009A regarding the revocation proceeding, which states, Defendant is released from custody as to this action only.

In sum, because the trial court revoked and terminated defendants probation in case number SC133009A, and did not impose a term of imprisonment for violation of the conditions of his probation in that case, the trial court was not required to calculate sentencing credits for prior periods of custody or treatment of a custodial nature.

Disposition

The judgment is affirmed.

_________________________

Jenkins, J.

We concur:

_________________________

Pollak, Acting P. J.

_________________________

Siggins, J.

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

[2] Defendants claim that the trial court allowed the entire prosecution case to be repeated through the readback is belied by the record, which shows that the readback involved two of the four witnesses presented at trial Henriquez, the main prosecution witness, and Hune, the sole defense witness.

[3] Defendants reliance on Fisher v. Roe (9th Cir. 2001) 263 F.3d 906 (Fisher) (overruled on other grounds by Payton v. Woodford (2003) 346 F.3d 1204, 1214, 1216), is unavailing. In Fisher, the Ninth Circuit concluded, under distinctive facts, that a state prisoners absence from a readback amounted to a violation of his due process rights where the readback occurred not only in the absence of the defendants and their lawyers, but without their knowledge and participation. In short, they had been completely and unilaterally excluded from that part of the trial. (Id. at p. 916) Such distinctive facts do not apply here, where the trial court consulted fully with defendant and his counsel regarding the readback.