P. v. Ware
Filed 7/17/12 P. v. Ware CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT
OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH
APPELLATE DISTRICT
DIVISION TWO
THE
PEOPLE,
Plaintiff and Respondent,
v.
JOHNNY
MARTIN WARE,
Defendant and Appellant.
E052725
(Super.Ct.No. FSB802803)
O P I N I O N
APPEAL
from the Superior Court of
County. Duke D. Rouse,
Judge. (Retired judge of the San
Bernardino Super. Ct. assigned by
the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part and reversed in part with
directions.
Gregory
L. Cannon, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Gary W. Schons, Assistant Attorney General, and Peter Quon, Jr. and
Kyle Niki Shaffer, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Following
convictions for forcible rape and
residential burglary, defendant Johnny Martin Ware was sentenced to 25 years to
life for the forcible rape under the one strike law. (Pen. Code, § 667.61, subds (b),
(d)(4).) He claims this sentence must be
reduced to 15 years to life because, although the jury found he committed the
forcible rape during the commission of a burglary, justifying a 15-year-to-life
sentence (Pen. Code, § 667.61, subds. (b), (e)(2)), the jury was not asked
to determine and did not find he intended to commit the forcible rape when he
entered the victim’s residence, the finding necessary to justify the
25-year-to-life sentence (Pen. Code, § 667.61, subds. (b), (d)).
forcible rape from 25 to 15 years to life.
Defendant raises one other claim of error—that the trial court did not
have authority to order him to pay a $79.86 booking fee within 365 days of his
release from local custody. (Gov. Code,
§ 29550.1.) We reject this claim
and affirm the judgment in all other respects.
II. FACTS AND PROCEDURAL BACKGROUND
A. Prosecution Evidence
In July 2008, Jane Doe lived in
an apartment in San Bernardino with her
five- and seven-year-old sons Z. and T.
Defendant lived in the same apartment complex and was a friend of Doe’s
cousin. Through her cousin, Doe had
known defendant for years, had often spoken with him, and knew him as
Marty. Z. and T. also knew
defendant. Defendant had been inside
Doe’s apartment only once or twice. Doe
denied ever having a “personal” or sexual relationship with defendant.
On
the evening of July 7, 2008, Doe locked
the door to her apartment before going to sleep in her bedroom. Z. and T. were also asleep in Doe’s bed. Sometime after 1:00
a.m. on July 8, Doe rolled over to retrieve her bed cover and saw a masked
man standing in the doorway of her bedroom, holding a gun. Doe was frightened and asked, “What do you
want,” and the man replied, “Where’s the money at, bitch” Doe recognized defendant’s voice and asked,
“Marty” Z. also recognized the man’s
voice as defendant’s. Defendant pointed
his gun at Doe and said, “No, this is Pomona, bitch.” Doe told defendant she only had $9.
Z.
woke up when he heard the man’s voice, began to cry, and ran out of the
bedroom, past defendant. Defendant
grabbed Z. and told him, “Get back in here, little nigger.” Z. returned to the bed with Doe and T., who
by this time was also awake. Doe was
only wearing a bra, underwear, and pajama shorts. Still pointing the gun at Doe, defendant
ordered Doe to undress. Doe replied,
“No, my kids.”
Defendant then ordered Doe to
“[g]et up,” and escorted her at gunpoint into her living room while the boys
remained in the bedroom. In the living
room, Doe saw that her front door was open, and the deadbolt was in pieces on
the floor. Doe also saw that her
computer was gone.
On the way to the living room,
defendant again ordered Doe to take her clothes off, and Doe removed her
underwear and pajama shorts. Defendant
then slapped Doe, grabbed her arm, forced her toward the couch at gunpoint, and
told her to put her face down in the couch.
As he pulled his pants down, defendant held his gun at Doe’s back. Doe was crying, and clenched her vaginal
muscles tightly to prevent defendant from inserting his penis into her
vagina. For five to ten minutes,
defendant tried to insert his penis into Doe’s vagina, and succeeded in
penetrating her vagina with the head of his penis. During the rape, defendant continued to hold
his gun in one hand.
After the rape, defendant asked
Doe, “Well, where’s that nine dollars”
He took Doe to her bedroom, where Doe rushed to her purse, retrieved the
money, and handed it to defendant.
Defendant told Doe not to call the police as he backed out of her
bedroom, still pointing his gun at her.
On the way out of the bedroom, defendant ransacked Doe’s dresser. Doe waited several minutes to make sure
defendant was gone, and called her cousin to tell her defendant had robbed and
violated her. Doe then called the police
and was taken to the hospital.
The police arrived at Doe’s
apartment at 1:50 a.m. on July 8. The
door to the apartment had been kicked in, and the door lock was in pieces on
the floor and on the ground outside the apartment. T. appeared “nervous and scared.” Doe also appeared scared.
Defendant was arrested later on
July 8, and was told he was being charged with residential burglary and
rape. At the time of his arrest, he
denied seeing Doe or being at her home on July 7 or 8. He had known Doe for several years but did
not mention having any kind of sexual relationship with her.
The parties stipulated that a
penile and vaginal swab were taken from defendant and Doe. The female DNA results from defendant’s swab
included Doe’s DNA, and the male DNA results from Doe’s swab matched
defendant’s DNA.
B. Defense Evidence
Defendant
testified he engaged in consensual sexual intercourse with Doe on July 6 and 7,
2008, and left her apartment early on the morning of July 7. Z. and T. were not in Doe’s apartment when
defendant was there. Later on July 7,
Doe came to defendant’s apartment and asked him for money. Defendant told her he did not have any money
to give her, but he had given her money in the past. Doe was upset because defendant would not
give her money. Defendant admitted
having three prior felony convictions.
Defendant’s
son, nephew, and niece testified they had seen defendant with Doe several times
at the apartment complex, either at the pool or while defendant was working on
Doe’s car. Defendant’s nephew once heard
Doe ask defendant for cigarettes and money.
Defendant’s son confirmed that defendant was known as Marty.
C. The Verdicts, Findings, and Sentence
The jury found defendant guilty
as charged of residential burglary (§ 459; count 1), residential robbery
(§ 211; count 2), and forcible rape (§ 261, subd. (a)(2); count
3). Additionally, the jury found that
defendant committed the rape during the commission of the burglary
(§ 667.61, subds. (b), (e)(2)), and personally used a firearm during the
commission of each crime (§ 12022.53, subd. (b)). Defendant admitted four prison priors (§ 667.5,
subd. (b)) and one prior serious felony/prior strike conviction (§ 667,
subds. (a)(1), (b)-(i)). He was
sentenced to 69 years to life.
Under the one strike law (§ 667.61), the court imposed
an indeterminate term of 25 years to life for the forcible rape conviction,
doubled to 50 years to life for the prior strike, plus 10 years for the firearm
enhancement, five years for the prior serious felony conviction, and four years
for the prison priors. Additional terms were imposed but stayed on the burglary
conviction, and a 27-year term on the robbery conviction was run concurrent to
the term on the forcible rape conviction.
III. DISCUSSION
A. The 25-year-to-life Term on the Forcible Rape Conviction Must be
Reduced to 15 Years to Life Because the Jury Was Not Asked to Determine Whether
Defendant Entered Doe’s Residence With the Intent to Commit the Forcible Rape
(§ 667.61), and the Error Was Prejudicial
Defendant
claims his 25-year-to-life sentence for the forcible rape conviction in count 3
must be reduced to 15 years to life under the one strike law. (§ 667.61.) We agree.
The
one strike law (§ 667.61) mandates the imposition of life terms for
certain sex offenses committed under certain aggravating
circumstances—specifically, 15 years to life or 25 years to life—depending on
the particular aggravating circumstance.
(People v. Jones (1997) 58
Cal.App.4th 693, 703 [Fourth Dist., Div. Two].)
A 15-year-to-life term must be imposed for a forcible rape committed
during the commission of a residential burglary. (§ 667.61, subds. (b), (c)(1),
(e)(2).) But if the defendant committed
a forcible rape during the commission of a residential burglary
intent to commit the forcible rape, then the court is required to impose 25
years to life for the forcible rape.
(§ 667.61, subds. (b), (c)(1), (d)(4); People v. Estrada (1997)
The facts required to impose
punishment under the one strike law must be alleged in the accusatory pleading
and either admitted by the defendant or found true by the trier of fact. (§ 667.61, subd. (j).) The trial court also has a duty to instruct
sua sponte on the general principles of law relevant to the issues presented by
the evidence. (People v. Roldan (2005) 35 Cal.4th 646, 715.) Accordingly, it is an error of state law not
to instruct on the findings necessary to impose a 15- or 25-year-to-life term
under the one strike law. (
1275.) A defendant also has a Sixth Amendment right to a
jury trial on one strike allegations because one strike findings have the
potential to increase the defendant’s punishment. (Apprendi
v. New Jersey (2000) 530 U.S. 466, 490; People
v. Anderson (2009) 47 Cal.4th 92, 102-103.)
Here
the information alleged that defendant forcibly raped Doe during the commission
of the burglary and committed the
burglary—that is, entered Doe’s apartment—with the intent to commit the
forcible rape. The jury was instructed
to determine, and found, that defendant committed the forcible rape during the
commission of the burglary.
(§ 667.61, subds. (b), (e)(2).)
As defendant concedes, this finding required the court to impose 15
years to life for the forcible rape.
(§ 667.61, subds. (b), (e)(2).)
But the jury was not instructed to determine, and did not find, that
defendant committed the burglary, or entered Doe’s apartment, with the intent
to commit the forcible rape.
(§ 667.61, subds. (b), (d)(4).)
The failure to instruct on the 25-year-to-life one strike allegation was
error. (Estrada, supra, 57 Cal.App.4th at p. 1275.)
As defendant further argues, the
failure to instruct on the one strike allegation was prejudicial under both the
Watson and Chapman standards of review.
In Estrada, the court concluded that the harmless error standard
articulated in Watson applies to the
failure to instruct on a one strike allegation because the defendant’s right to
a jury trial on a one strike allegation arises under state law and involves a
“‘misdirection of the jury.’” (
1276, citing People v. Wims (1995) 10
Cal.4th 293, 304, 314 and Cal. Const. art. VI, § 13.) That is, the failure to instruct is harmless
“only if ‘it is reasonably probable that a result more favorable to the
appealing party would have been reached in the absence of the error.’” (Estrada,
supra, at p. 1276, quoting Watson,
supra, 46 Cal.2d at p. 836.) A reasonable probability does not mean more
likely than not; it means “a reasonable
chance, more than an abstract
possibility.” (College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704,
715.) Estrada is outdated on this point because the California Supreme
Court has since recognized that a defendant has a federal
determine the truth of one strike allegations.
(People v. Anderson, supra, 47
Cal.4th at pp. 102-103.) And under
trial errors of federal constitutional dimension, the question is whether the
failure to instruct on the one strike allegation was harmless beyond a
reasonable doubt. (Chapman, supra, 386 U.S. at p. 24; People v. Flood (1998) 18 Cal.4th 470, 504.)
Instructions that omit or misdescribe an element of a
charged offense violate the defendant’s right to a jury trial guaranteed by the
federal Constitution, and such errors are harmless only if it can be said
beyond a reasonable doubt that the jury’s verdict would have been the same
absent the error. (Chapman, supra, 386 U.S. at p. 24; Neder v. United States (1999) 527 U.S. 1, 7-10.) Indeed, “there is ‘a distinction of true
importance between a harmless-error test that focuses on what the jury did
decide, rather than on what appellate judges think the jury would have decided
if given an opportunity to pass on an issue.’
[Citation.] Harmless error
analysis . . . ‘“may enable a court to remove a taint from
proceedings in order to preserve a
jury’s findings, but it cannot constitutionally supplement those findings.”
[Citation.]’” (
874, 888 [Fourth Dist., Div Two], citing concurring opinion of Justice Stevens
in Neder v. United States, supra, at
p. 26.) Here, the trial court’s failure
to instruct the jury on the 25-year-to-life one strike finding—that is, to
determine whether defendant entered Doe’s apartment with the intent to commit
forcible rape—is akin or functionally equivalent to a failure to instruct on an
element of a charged offense. And here,
it cannot be said that the instructional error or omission is harmless beyond a
reasonable doubt unless, based on the entire record, the jury necessarily made
the finding adverse to defendant had it been given the opportunity to make the
finding.
Here it cannot be said that the
failure to instruct on the 25-year-to-life one strike allegation was harmless
beyond a reasonable doubt. Had the jury
been instructed on the allegation, there is a reasonable possibility it would
have found the allegation not true—that is, there is a reasonable possibility
it would have found that defendant did not enter Doe’s apartment with the
intent to forcibly rape her. There is
also a reasonable probability—more than an abtract chance—that the jury would
have found defendant did not enter Doe’s apartment with the intent to forcibly
rape her.
The jury was instructed it could
find defendant guilty of the burglary if it found he entered the apartment with
the intent to commit theft or
forcible rape, and it did not have to agree on which of the two crimes he
intended. And in closing argument, the
prosecutor relied on both theft and forcible rape as the intended crimes
supporting the burglary charge and did not emphasize that defendant entered the
apartment with the intent to forcibly rape Doe.
Indeed, the evidence supported a reasonable inference that defendant
entered the apartment intending to commit theft, but not forcible rape, and
decided to forcibly rape Doe only after he entered her apartment. Defendant apparently took Doe’s computer out
of her apartment before he woke her and raped her, and the first thing defendant
said when Doe awoke and asked defendant what he wanted was, “Where’s the money
at, bitch” Then, after defendant raped
Doe but before he left her apartment, he took $9 from Doe, the only money she
said she had, and ransacked her dresser.
Based on this evidence, the jury could have reasonably concluded that
defendant decided to forcibly rape Doe only after he woke her and found her
partially clad in a bra and pajama shorts.
Estrada does not
assist the People’s argument that the failure to instruct on the
25-year-to-life one strike sentencing allegation was harmless under both
present case, it is distinguishable in critical respects.
The defendant in
in the early morning hours. (
1273.) The victim screamed after she saw
the defendant standing in her hallway, looking into her bathroom. The defendant ran into the victim’s bedroom
and raped her after a brief struggle.
Afterward, he asked the victim to forgive him and left. The defense was based on alibi and mistaken
identity. There was no indication the
defendant took any property from the victim or her apartment. (Ibid.)
Like the defendant here, the
defendant in Estrada was convicted of
residential burglary and forcible rape, and sentenced to 25 years to life under
the one strike law. (
1273.) And like the jury here, the jury
in Estrada was instructed it could
find the defendant guilty of the residential burglary if it found he entered
the victim’s apartment either with the intent to steal or commit rape. (Id.
at p. 1275.) But unlike the present
case, in which the jury made no finding concerning defendant’s intent upon entering
Doe’s apartment, the jury in Estrada
found that “the ‘forcible rape occurred during the defendant’s commission of a
residential burglary with intent to
commit rape.’” (Id. at p. 1273, italics added.)
The Estrada court concluded that the instructions and verdict form were
erroneous because they did not require the jury to determine whether the
defendant entered the victim’s apartment with the intent to commit forcible
rather than “‘nonforcible’” rape, or a type of rape not subject to the one strike
law. (Estrada, supra, 57 Cal.App.4th at pp. 1274-1275.) Still, the court found the errors harmless
because there was no reasonable probability the jury would have found that the
defendant entered the apartment with the intent to commit “‘nonforcible’”
rape. (Id. at pp. 1275-1277.) In so
concluding, the court emphasized that (1) the prosecutor relied solely on the
theory that the rape was forcible, and that the defendant entered the victim’s
apartment with the intent to commit only forcible rape, not theft, (2) the
defense offered no alternative theories, (3) the jury was instructed only on
forcible rape, and (4) the evidence did not reasonably support a conclusion
that the rape was not forcible. (
Estrada is thus
distinguishable from the present case because it did not involve the complete
failure of the jury to make any finding on the pertinent one strike allegation.
And here, in contrast to Estrada, the
prosecutor did not rely solely on the theory that defendant entered Doe’s
apartment with the intent to commit forcible rape for purposes of the burglary
charge, but instead relied on the alternative theories that he entered the
apartment with the intent to commit either forcible rape or theft. And here, in contrast to Estrada, there was evidence that defendant entered Doe’s apartment
with the sole intention of committing theft, and the forcible rape intention
upon entry was not stressed to the jury.
In Estrada there was no
indication that the defendant entered the victim’s apartment intending to
commit theft, but only to commit forcible rape.
Lastly, defendant claims the
trial court’s failure to instruct the jury on the 25-year-to-life one strike
sentencing allegation means his sentence on count 3 must be reduced from 25 to
15 years to life, doubled to 30 years to life based on his prior strike
conviction. As defendant concedes, the
jury’s finding that he committed the forcible rape during the commission of the
burglary supports the imposition of a 15-year-to-life term on his forcible rape
conviction. (§ 667.61, subds. (b),
(e)(2).) The People do not
disagree. We modify defendant’s sentence
accordingly.
title="">[3]
B. The Order Directing Defendant to Pay a Booking Fee Within 365 Days of
His Release From Local Custody Was Proper
At sentencing, the court ordered
defendant to pay a $79.86 booking fee to the City of San Bernardino “
custody with proof of payment to the parole officer.” (Italics added.) (Gov. Code, § 29550.1.) Defendant claims that the part of the order
requiring him to pay the booking fee within 365 days of his release from local
custody was statutorily unauthorized and must be stricken. We disagree.
The booking fee was imposed under
Government Code section 29550.1,
judgment of conviction shall contain an order for payment of the amount of the
criminal justice administration fee by the convicted person, and execution
shall be issued on the order in the same manner as a judgment in a civil
action, but the order shall not be enforceable by contempt.”
Unlike restitution fines, criminal justice administration
fees, or booking fees as they are more commonly known, are not punitive in
nature but are a type of “‘user’ fee” imposed on a defendant for his or her use
of the county jail system. (
705, 710-711.) The Legislature’s intent
in enacting Government Code section 29550.1 and analogous statutes providing
for the payment of booking fees to other governmental agencies (Gov. Code,
§§ 29550, 29550.2) was to help arresting agencies offset the costs of
providing jail services (see People v.
Rivera, supra, at p. 710).
Defendant maintains that because an order directing the
payment of a booking fee is only enforceable as a judgment in a
contempt (Gov. Code, § 29550.1), the trial court was without authority to
require him to pay the fee within 365 days of his release, or any other time
frame. Instead, he argues, “the trial
court has the authority to enforce its order requiring payment of a booking fee
only if the City of San Bernardino chooses to seek enforcement through civil
proceedings.”
Defendant is only partly correct. Under the express terms of Government Code
section 29550.1, the trial court cannot enforce its judgment requiring
defendant to pay the booking fee by contempt proceedings, but can enforce the
judgment as a civil judgment if the City of San Bernardino chooses to enforce
it as such. (Code Civ. Proc.,
§ 695.010 et seq.) But this does
not mean the court had no authority to require defendant to pay the booking fee
within 365 days of his release from local custody.
Indeed, the court’s authority to impose a time frame for
payment is implied in the statute’s use of the phrase, “[a] judgment of
conviction shall contain an order for
payment of the amount of the criminal justice administration fee
. . . .” (Gov. Code,
§ 29550.1, italics added.) The
365-day time frame for payment is simply part of the “order for payment.” (Ibid.) If the booking fee is not paid within 365
days following defendant’s release from local custody, then the City of San
Bernardino may enforce the order or judgment directing the payment of the fee
“in the same manner as a judgment in a civil action.” (Ibid.)
IV. DISPOSITION
The
judgment is modified to reduce defendant’s one strike sentence on his forcible
rape conviction in count 3 from 25 years to life to 15 years to life, doubled
to 30 years to life based on defendant’s prior strike conviction. Thus, defendant’s indeterminate
69-year-to-life sentence on count 3 is reduced to 49 years to life. The matter is remanded to the trial court
with directions to prepare an amended abstract of judgment showing this
modification, and to forward a copy of the amended abstract to the
affirmed.
NOT TO BE PUBLISHED IN OFFICIAL
REPORTS
KING
J.
We concur:
RAMIREZ
P.
J.
RICHLI
J.
name="_ftn1" title=""> [1] All further statutory references are to the
Penal Code unless otherwise indicated.
name="_ftn2" title=""> [2] People
v. Watson (1956) 46 Cal.2d 818, 836 (Watson);
Chapman v. California (1967) 386 U.S.
18, 24 (Chapman).
