P. v. Stubbs

Filed 10/30/07 P. v. Stubbs CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. Darlene E. Schempp, Judge. Affirmed.

Deborah Blanchard, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan Sullivan Pithey, Marc E. Turchin and Susan D. Martynec, Deputy Attorneys General, for Plaintiff and Respondent.

_______________

Joseph William Stubbs[1]appeals from a judgment entered upon his conviction by jury of second degree commercial burglary (Pen. Code, 459).[2] The trial court found to be true the allegation that he had suffered four prior prison terms within the meaning of section 667.5, subdivision (b). It sentenced appellant to the upper term of three years for the burglary conviction, plus an additional year for each of the four prior prison term enhancements. Appellant contends that (1) the prosecution committed Griffin[3]error, (2) alternatively, if the Griffin claim was forfeited by failure to raise it in the trial court, then appellant suffered ineffective assistance of counsel, and (3) the trial court erred in imposing an upper term sentence because the factors in aggravation were not found by the jury beyond a reasonable doubt, thereby violating appellants Sixth Amendment right to jury as articulated in Cunningham v. California.[4]

We affirm.

FACTS

Between 8:00 and 8:30 p.m., on March 1, 2005, Vincent Donvito, the owner of Karate 4 Kids USA, in North Hollywood, turned on fluorescent night lights in the front of the building in which it was located and locked the interior door to his office, the back door and back gate, and the front door, as he exited. He was the last person to leave.

When Donvito returned to his business at 8:00 a.m. the next morning, he found that someone had broken into his business. The front window and interior window leading to his locked office were smashed, and a curtain by the front window, where someone apparently entered, was either torn or had fallen down. Broken glass was scattered throughout and all of the file cabinet drawers in his office were open and the contents moved. Clothing that hung on the front of the file cabinets had been thrown to the floor, and personal effects on his desk had been gone through. A rock that Donvito had not seen the day before was on the floor near the inner office and another was on the floor near the broken front window. Fingerprints taken from the cabinets in Donvitos office and his office window matched appellants fingerprints.

Donvito testified that nothing was missing from the business, and that there was no damage other than to the windows, which cost $900 to replace. Also, an unsecured VCR, television, stereo and credit card processing machine in his office were not taken. He did not have any cash in the office, although there were $2 or $3 in a small box next to the soda machine in the main part of the studio that were left undisturbed. He did not know appellant and there was no reason why appellant would have had legitimate access to Donvitos office.

DISCUSSION

I. Griffin error

During summation, both parties strenuously argued about whether appellant entered the premises with the intent to steal, which was the only contested issue.^[5] In her opening argument, the prosecutor stated that intent must usually be proven by circumstantial evidence. She pointed to the evidence that appellant had obtained two rocks to break the windows, broke into the locked and more secluded inner business office where cash and credit cards would most likely be located, and opened cabinets and moved items inside. She stated, As you look to the totality of the circumstances in this case, there is overwhelming circumstantial evidence that the defendant broke into Karate 4 Kids USA looking for cash or small valuables. She added, There is no other reason for him to break the window and go into that business. There is no other explanation for him breaking into the interior business office or going into that office and rummaging through drawers and opening cabinets. Referring to CALJIC No. 2.01,^[6] the prosecutor argued that the only reasonable explanation was that appellant entered the studio intending to steal.^[7]

Defense counsel argued that the evidence reasonably supported an inference that appellant did not intend to steal. He did not take any property, although valuable, easily portable items were present. She too discussed CALJIC No. 2.01, claiming that it mandated finding appellant innocent because the evidence supported the equally plausible interpretation that appellant did not intend to steal.

In rebuttal, the prosecutor argued that proof of appellants intent was reflected by his actions inside the premises. She stated that the evidence she presented supporting an intent to steal was uncontradicted and that the interpretation that appellant did not intend to steal because he did not take anything was not reasonable. There could be no other reason he entered the studio except to steal. But the fact that he broke into this office clearly shows that he was searching for something of value. There is no other reasonable explanation. She repeated this latter phrase numerous times.

Appellant contends that the prosecutor committed Griffin error, thereby depriving him of his Fifth Amendment privilege against self-incrimination. He argues that the prosecutors numerous comments to the jury that there could be no other reasonable explanation for appellants presence in the building and that there was no evidence contradicting the evidence of his intent to steal focused the jurys attention on the fact that he had asserted his privilege against self-incrimination by declining to testify. Respondent contends that appellant forfeited this claim. We agree that the claim has been forfeited.

Appellants trial counsel did not object or request an admonition with respect to any of the prosecutors comments. Generally, a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashionand on the same groundthe defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. (People v. McDermott (2002) 28 Cal.4th 946, 1001.) This procedural requirement has been applied repeatedly to cases involving claims of Griffin error. (E.g., People v. Turner (2004) 34 Cal.4th 406, 421; People v. Medina (1995) 11 Cal.4th 694, 756; People v. Fierro (1991) 1 Cal.4th 173, 213.)

Even if the issue had been properly preserved for appeal, we would find it to be without merit. In Griffin, supra, 380 U.S. at page 615, the United States Supreme Court held that comment on a defendants failure to testify is error. Prosecutorial comment which draws attention to a defendants exercise of his constitutional right not to testify, and which implies that the jury should draw inferences against defendant because of his failure to testify, violates defendants constitutional rights. (People v. Murtishaw (1981) 29 Cal.3d 733, 757, disapproved on other grounds in People v. Boyd (1985) 38 Cal.3d 762.)

But it is also well established that although Griffin prohibits reference to a defendants failure to take the stand in his own defense, that rule does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses (People v. Vargas (1973) 9 Cal.3d 470, 475; People v. Burns (1969) 270 Cal.App.2d 238, 247; accord, People v. Smith (1971) 22 Cal.App.3d 25, 32; People v. Bethea (1971) 18 Cal.App.3d 930, 936; People v. Bradford (1997) 15 Cal.4th 1229, 1339), or to comments on a lack of conflicting witnesses, even if the only witness could be the defendant (see People v. Roberts (1975) 51 Cal.App.3d 125, 135-137).

The Griffin claim here is premised upon two types of statements by the prosecutor. The first included the prosecutors numerous references to there being no other explanation for appellants conduct than that he entered the premises with the intent to steal. The second type of comment was the prosecutors single statement that there was no evidence to contradict the Peoples evidence of intent.

We conclude that the numerous statements to the effect that there could be no other explanation for appellants conduct besides an intent to steal do not constitute Griffin error. First, these statements merely comment on the evidence, directing the jury to the most logical inference that could be derived from the evidence of appellants conduct. Second, these statements make no reference, directly or indirectly, to appellants failure to testify, and would have been appropriate whether or not he testified. Third, [A] prosecutor is justified in making comments in rebuttal, perhaps otherwise improper, which are fairly responsive to argument of defense counsel and are based on the record. (People v. Hill (1967) 66 Cal.2d 536, 560.) In her closing argument, defense counsel argued that the evidence supported the inference that appellant did not enter Karate 4 Kids USA with the intent to steal as he left without taking some cash ($2 to $3) and other items that were easily portable. The prosecutors references to no other reasonable explanation in rebuttal were in response. Fourth, it has been held that arguing that, [t]he state of the record is that there has been no explanation given for [the Peoples evidence of guilt] . . . (italics added) is not Griffin error. (People v. Bethea, supra, 18 Cal.App.3d at p. 936.) We agree, for as stated in Bethea, [t]here is absolutely no reference to the fact that defendant did not take the stand; nor is the remark susceptible of such interpretation by inference or innuendo. (Ibid.) Finally, the trial court instructed the jury in accordance with CALJIC No. 2.01 that if there are two inferences raised, one reasonable and one unreasonable, it was to accept the reasonable inference. In arguing that there was no other reasonable inference, the prosecutor was merely arguing that instruction.

The argument by the prosecutor that there is no evidence to contradict the evidence that we have presented as to appellants intent (italics added), similarly is not Griffin error. It was merely a comment on the lack of evidence to refute those uncontradicted facts that supported the intent finding; that appellant obtained two rocks to break windows, broke into the more secluded inner office, and opened cabinets and moved items inside. (See People v. Johnson (1992) 3 Cal.4th 1183, 1229 [Supreme Court stated that a prosecutor errs by referring to evidence as uncontradicted when the defendant, who elects not to testify, is the only person who could have refuted it. It nonetheless concluded that the prosecutors comment that the evidence that the defendant was present at the crime scene was uncontradicted, when his defense was improper identification, merely reflected the state of the evidence].) Further, the prosecutors single uncontradicted comment was made in her rebuttal argument after defense counsel had pointed to evidence purportedly showing that appellant did not enter the premises to steal. Thus, the comment merely highlighted that the facts relied on by the People to establish intent were not refuted by the facts relied on by appellant. (See People v. Hill, supra, 66 Cal.2d at p. 560; see also People v. Roberts, supra, 51 Cal.App.3d at pp. 136-137.)

Even if the prosecutor had committed Griffin error, that error was harmless under even the most stringent Chapman v. California (1967) 386 U.S. 18, 24 rule of prejudice. There are two elements bearing upon the determination of whether Griffin error was harmless beyond a reasonable doubt. The first is the seriousness of the Griffin error. The second is the impact of the error upon the jurys consideration of the evidence in light of the strength of the case against the defendant. (See People v. Vargas, supra, 9 Cal.3d at pp. 478-481.)

The comments challenged here do not directly refer to appellants failure to testify, but raise the issue only by implication. As such, they are less prejudicial than comments that directly refer to a defendants assertion of the privilege. (See, e.g., People v. Gioviannini (1968) 260 Cal.App.2d 597, 604-605 [Griffin error when prosecutor made several comments inviting the jury to draw inferences from the defendants failure to testify, including statement, Now, as far as how the bottle was broken . . . there would be two people, possibly, who could answer that, and one of them, of course, is dead]; People v. Northern (1967) 256 Cal.App.2d 28, 30-31 [Griffin error in the prosecutors statement that the Peoples evidence has not been refuted by the Defendant, there is no controverting evidence].)

Further, the impact of the statement on the jury was likely insignificant. The evidence of appellants intent to steal was strong. He broke into the business with a rock and carried a second rock to break into the interior administrative office. In that office, he opened file drawers and moved items inside, as well as items on the desk, as if looking for something. These facts alone suggest that appellant broke into the premises to steal. It is difficult to conceive of any other purpose. The evidence to which appellant pointed is weak, that he took nothing although there was a television set and credit card machine and cash. There were only $2 to $3 which were not in the office but in the main part of the studio, in a box that appellant may not have even noticed. The other items, while not secured, were bulky and not easily carried covertly. Finally, the jury was instructed in accordance with CALJIC Nos. 1.02 and 1.03 to consider only the evidence presented and that counsels comments were not evidence. It was further instructed in accordance with CALJIC No. 2.60 not to discuss or draw any inference from appellants failure to testify. We assume the jury followed these instructions. (See People v. Horton (1995) 11 Cal.4th 1068, 1121.) Further, [b]rief and mild references to a defendants failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error. (People v. Hovey (1988) 44 Cal.3d 543, 572; People v. Bradford, supra, 15 Cal.4th at p. 1229.)

II. Ineffective assistance of counsel

Appellant contends that if his Griffin error claim was waived by his counsels failure to raise it, then he suffered ineffective assistance of counsel. Because we have concluded that appellants Griffin claim is without merit, his attorneys failure to object could not have prejudiced him and hence could not constitute ineffective assistance of counsel. (People v. Hernandez (2004) 33 Cal.4th 1040, 1052-1053 [one element of ineffective assistance of counsel is prejudice from counsels deficient representation]; see also Strickland v. Washington (1984) 466 U.S. 668, 687, 694.)

III. Cunningham v. California

Appellant was convicted of second degree commercial burglary, and the trial court found that he had suffered four prior prison terms. On October 25, 2006, before sentencing, the trial court noted that he had five prior misdemeanor and eight felony convictions,^[8] had been to prison eight times never mak[ing] it on parole, had 10 aliases, eight different dates of birth, three driver license numbers and 10 social security numbers. So it is hard to believe that a man with all of this background isnt a danger to the community, and showing absolutely no sign of changing his lifestyle.

The trial court then found as aggravating factors that defendant is an increasing danger to the community; he has been on probation and parole in the past, unsuccessfully; his prior convictions as an adult are numerous. It found no mitigating factors and sentenced appellant to the upper term of three years on his conviction plus four consecutive one-year terms for each of the prior prison terms.

Appellant contends that under Cunningham v. California, supra, 549 U.S. __ [127 S.Ct. 856], imposition of the upper term sentence deprived him of due process and his Sixth Amendment right to a jury determination beyond a reasonable doubt of all facts necessary to increase his sentence beyond the statutory maximum. He argues that the factors found by the trial court to support imposition of the upper term sentence were neither found by the jury nor admitted by him and were found only by a preponderance of the evidence. Respondent contends that appellant forfeited this claim by failing to assert it in the trial court. We conclude that appellant has not forfeited the claim, but that it is without merit.

A. Forfeiture

In the recent case of People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), our Supreme Court resolved this forfeiture issue. In that case, as here, the trial and sentencing proceedings took place after the United States Supreme Courts decision in Blakely v. Washington (2004) 542 U.S. 296 (Blakely) and the California Supreme Courts decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), but before Cunningham. The court in Sandoval concluded that the claim was not forfeited because the decision in Black I, in which our Supreme Court held that the California determinate sentencing law (DSL) did not implicate the Sixth Amendment right to a jury, was binding on the lower courts until it was overruled by the United States Supreme Court in Cunningham. Had defendant requested a jury trial on aggravating circumstances, that request clearly would have been futile, because the trial court would have been required [pursuant to Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 228, 237-238] to follow our decision in Black I and deny the request. (Sandoval, supra, at p. 837, fn. 4.) An objection in the trial court is not required if it would have been futile. (Ibid.)

B. Right to Jury

For the reasons set forth in People v. Black (2007) 41 Cal.4th 799 (Black II), we find no constitutional violation in the trial courts imposition of the upper term.

In Blakely, the United States Supreme Court held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum, that is the maximum sentence a judge may impose solely on the basis of facts reflected in the jury verdict or admitted by the defendant must be determined by a jury and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 303). The high court recently made clear that [i]n accord with Blakely . . . the middle term prescribed in Californias statutes, not the upper term, is the relevant statutory maximum. (Cunningham, supra, 549 U.S. __ [127 S.Ct. at p. 868].) In Cunningham, contrary to the California Supreme Courts conclusion in Black I, the United States Supreme Court held that Californias DSL did not comply with this mandate. (Cunningham, supra, 549 U.S. __ [127 S.Ct. at p. 871].)

Following Cunningham, the California Supreme Court in Black II, reasoned that as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi^[[9]] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial. (Black II, supra, 41 Cal.4th at p. 812.) [I]f one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle-term sentence, and the upper term sentence is the statutory maximum. (Black II, supra, at p. 813.) Citing federal circuit decisions stating that the prior conviction exception may be found using the preponderance of the evidence standard, the court in Black II also concluded that [t]he high court never has suggested that the requirement of proof beyond a reasonable doubt could be severed from the right to jury trial for purposes of applying the [prior convictions exception]. (Black II, supra, at p. 820, fn. 9.)

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. (Black II, supra, 41 Cal.4th at p. 818; Blakely, supra, 542 U.S. at pp. 301, 303.) This exception is not to be read too narrowly. (Black II, supra, at p. 819.) The fact of a prior conviction includes other related issues that may be determined by examining the records of the prior convictions. (Ibid.)

Here, the trial court explicitly found appellants extensive criminal conviction history supported imposition of the upper term. As such, there was no right to a jury trial. This single factor made defendant eligible for an upper term sentence, and the trial court was free to consider other factors in imposing an upper term sentence. (See Black II, supra, 41 Cal.4th at pp. 819-820.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_________________, Acting P. J.

DOI TODD

_____________________, J.

ASHMANN-GERST

_____________________, J.

CHAVEZ

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[1] Appellant has also been known as Joe Willie Stubbs, Christopher Danna, Christopher Lee Danna, Marty Davis Herd, Joe William Herd, Joe William Stubbs, Richard Alan Warr, Eric Dlaney Lewis, Eric Dlano Lewis, Ed Lewis, Joseph Stubbs, Kenneth Audwin Tatum, Joseph Christopher Danna, Arthur Salas, Jr., Joe Willis Stubber, Charles David Wildman, Arthur Salas, Joseph William Stubbs, Charles Wildman, Joseph None Stubbs, Brett Philip Andrews, Erik Lee Satin, Erick Lee Satin, Joseph Williams Stubbs, Kris Moniker Davis and Ponny.

[2] All further statutory references are to the Penal Code unless otherwise indicated.

[3]Griffin v. California(1965) 380 U.S. 609 (Griffin).

[4]Cunningham v. California(2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham).

[5] Defense counsel conceded in closing that appellant had entered the premises.

[6] The trial court instructed the jury in accordance with CALJIC No. 2.01, as follows: Also, if the circumstantial evidence permits two reasonable interpretations, one of which points to the defendants guilt and the other to his innocence, you must adopt that interpretation that points to the defendants innocence and reject that interpretation that points to his guilt. [] If, on the other hand, one interpretation of this evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.

[7] The prosecutor argued: If one interpretation of the evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable. [] . . .  [] Therefore, in this case, there is no other reasonable explanation for why the defendant would take two rocks, break through an exterior window of a karate studio, then break into the interior business office, rummage through the drawers and cabinets and disturb items. There is only one reasonable interpretation of all the evidence and all the facts in this case, and that is that the defendant entered that karate studio with the intent to steal.

[8] Appellants convictions and sentences include: (1) December 1980, misdemeanor shoplifting, 12 months probation, five days in jail, (2) December 1980, non-sufficient funds checks, three years probation, 65 days in jail, later suffering multiple probation violations, (3) March 1986, misdemeanor theft, six months probation, six days in jail, (4) November 1986, misdemeanor trespass, one year probation, 13 days in jail, (5) June 1987, second degree burglary, two years state prison, subsequently suffered parole violation, (6) July 1989, burglary, three years probation, 100 days in jail, probation ultimately revoked and committed to state prison for two years, (7) May 1991, receiving stolen property, two years state prison, suffered parole violation, (8) December 1996, receiving stolen property, 16 months state prison, (9) December 1996, burglary and forgery, two years state prison, (10) February 1999, receiving stolen property with prior prison, five years state prison, (11) October 2001, misdemeanor driving with a suspended license, three years probation, (12) July 2002, receiving stolen property, 16 months state prison, and (13) May 2003, misdemeanor vandalism, 12 months probation.

[9] Apprendi v. New Jersey(2000) 530 U.S. 466.