P. v. Thompson

Filed 12/15/08 P. v. Thompson CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Placer)

----

A jury found defendant Frederick Angelo Thompson, Jr., guilty of first degree residential burglary and receiving stolen property. The trial court also found defendant had a prior juvenile adjudication for robbery for purposes of a strike enhancement. The court sentenced defendant to the low term of two years, doubled for the prior strike, for a total of four years in prison.

On appeal, defendant contends he was prejudiced because during deliberation the jury inadvertently received a verdict form regarding his juvenile adjudication. Defendant also contends that use of the juvenile adjudication for a strike enhancement violated his right to a jury trial under the Sixth Amendment to the United States Constitution. Finding no prejudice and no constitutional violations, we will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On May 2, 2006, at 8:43 p.m., the Rocklin Police Department received an anonymous call regarding a suspicious circumstances vehicle tampering in the Blue Oaks and Taft area of Rocklin. Public safety dispatcher Michelle Buckland dispatched officers to the area at 8:45 p.m. The suspects were described as two black males driving a dark maroon four-door car.

Rocklin Police Officer Daniel Groff responded to the area of Blue Oaks and Taft at 8:50 p.m. Groff arrived at 6500 Jackson, the address of the reported vehicle tampering, at 9:19 p.m. Groff inspected the vehicle and found no damage. While meeting with the residents of the house, Groff noticed a maroon four-door Lexus that matched the description of the suspect vehicle. Groff saw two black males in the car. The Lexus slowed down at an intersection that did not have a stop sign. The passenger looked in the direction of Groff and the vehicle sped off. Groff went back to his vehicle to pursue the Lexus. Groff caught up to the Lexus and conducted a traffic stop at 9:27 p.m. Defendant was the driver of the vehicle^[1]and the passenger was Lenell Wilson, Jr.

While the traffic stop was ongoing, the Rocklin Police Department dispatch received a call from Tina Goulding at 9:41 p.m. Goulding called regarding someone being in her garage earlier that evening. Goulding walked out of her house through an attached garage to check her mail across the street. When she came back from getting her mail, she went inside the house but left the garage door open. She went back into the garage intending to put her garbage cans away and saw a man running from her garage. Goulding said the man was wearing very baggy pants or jeans and a white T-shirt. She said that he was not very tall^[2]and was thin. She thought the man had darker skin but could not say what race he was. She saw the man for only about two to three seconds before he disappeared into the darkness. After the incident, she realized that a remote control car was missing from her garage. The remote control car was owned by her brother. Her brother had duct taped the controller to the car.

During the stop of defendant, the officers searched his car and discovered a remote control car that had the remote control duct taped to the car. The remote control car was located on the floorboard behind the drivers seat. Defendant said he bought the car for $50 at a yard sale two to three weeks before. When asked to describe the remote control car defendant said, It was white with stripes. The remote control car is actually red, green, and yellow. When Groff told defendant that he gave the wrong description of the remote control car, defendant lowered his head and looked away. Defendant also said he didnt know it was stolen. Defendant heard the description of the subjects over the police radio^[3]and said he could not be one of the subjects because he had a white tank top on, and the victim would have seen his dark skin. Defendant was placed under arrest.

A criminal complaint was filed against defendant charging him with first degree residential burglary and receiving stolen property, and for a strike enhancement it was alleged that he had a prior juvenile adjudication for robbery. The trial court granted the prosecutions motion in limine to impeach defendant with the juvenile adjudication for robbery and prior juvenile misdemeanors if he chose to testify. The trial was bifurcated so the strike allegation for the juvenile adjudication would not be referenced during the trial on the residential burglary and receiving stolen property charges.

At trial it was established that the remote control car found in defendants car was the car stolen from Gouldings garage. Defendant did not testify at trial. During the jury deliberations, the judge received a note from the jury foreperson stating that the jury had received a sheet of paper regarding an allegation of violent or serious felony prior. The foreperson indicated that the jury was unsure if the form was for it to consider. Specifically, the form read:

We, the Jury in the above-entitled action, find the allegation that the defendant, FREDERICK ANGELO THOMPSON, suffered a prior violent or serious felony conviction on or about February 9, 2000 for a violation of Penal Code section 211, Robbery, within the meaning of Penal Code 1170.12 (a) through (d) and Penal Code 667(b)-(i), as alleged in the Information to be:

_____ TRUE

_____ NOT TRUE

The trial court responded to the jury with a note stating that the form has absolutely nothing to do with anything you are to consider in your deliberations. You are to completely disregard it. The jury then reached a verdict. Before the court received the verdict, it polled the jurors regarding any possible effect the improperly received form had on the deliberations. Specifically, the court asked the jurors if they were aware that there was a form that they shouldnt have had, if they were aware of what it was, and whether it influenced their deliberation in any way.

After questioning the jury, the court received the verdict. The jury found defendant guilty of first degree residential burglary and receiving stolen property. In the bifurcated portion of the trial, the court found defendant had a prior juvenile adjudication for robbery for the strike enhancement.

Defendant moved for a new trial based on juror prejudice resulting from receipt of the verdict form. The trial court denied the motion finding that the verdict form inadvertently given to the jury did not affect the jurys decision. The trial court dismissed the conviction for receiving stolen property. The court then sentenced defendant to the low term of two years for the first degree residential burglary conviction plus an additional two years for the prior strike juvenile adjudication. Defendant made this timely appeal.

DISCUSSION

On appeal, defendant contends his right to a fair jury trial under the Sixth Amendment to the United States Constitution was violated when the jury improperly received the verdict form regarding a possible previous juvenile adjudication. Specifically, defendant contends the error in allowing the jury to receive this form prejudiced him and therefore he is entitled to a new trial. Defendant also contends the trial courts use of his prior juvenile adjudication as a strike prior violated his Sixth Amendment right to a jury trial.^[4] Finding no prejudice regarding the jurys receipt of the verdict form and no Sixth Amendment violation in the trial courts use of the prior juvenile adjudication, we will affirm the judgment.

I

Prejudice To Defendant When Jury

Inadvertently Received Verdict Form

We first note the trial court erred in submitting the verdict forms to the jury. The prosecution made a successful motion in limine to use defendants prior juvenile adjudications to impeach defendant if he chose to testify. Defendant chose not to testify and the court bifurcated the trial so the jury would not learn of his previous juvenile adjudication for robbery. Defendant took every precaution not to allow this into evidence and the jurys receipt of the verdict form was error.^[5]

A

Violation Of Right To Fair Trial Under The

Sixth And Fourteenth Amendments

To The United States Constitution

Defendant contends that his right to a fair trial under the Sixth and Fourteenth Amendments to the United States Constitution was violated when the jury received the verdict form regarding a possible prior juvenile adjudication. We dispose of this argument first. The fact that the jury was inadvertently given the verdict form does not rise to the level of a federal constitutional violation simply because the form contained an allegation that defendant might have a prior juvenile adjudication. Defendants reliance on Smith v. Phillips (1982) 455 U.S. 209 [71 L.Ed.2d 78] for a federal constitutional violation is misplaced.

Smith dealt with a factual situation different from this case. In Smith the bias dealt with a single juror who had applied for a job with the district attorneys office. (Smith v. Phillips, supra, 455 U.S. at p. 212 [71 L.Ed.2d at p. 83].) The attorneys prosecuting the case were aware of this fact and did not disclose it to the court. (Id. at pp. 212-213 [71 L.Ed.2d at p. 83].) The United States Supreme Court upheld the conviction because it felt the state procedure used, specifically a posttrial inquiry into the allegedly biased juror and the prosecuting attorneys, was adequate to ensure an impartial jury and satisfy constitutional standards. (Id. at pp. 209, 218 [71 L.Ed.2d at pp. 78, 86-87].)

Defendant quotes Smith for the proposition that Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences . . . . (Smith v. Phillips, supra, 455 U.S. at p. 217 [71 L.Ed.2d at p. 86].) Defendant conveniently leaves out the remainder of the sentence, which says the judges role is to determine the effect of such [prejudicial] occurrences when they happen. (Ibid.)

In contrast to Smith, the error in this case was inadvertent. Moreover, the trial court attempted to determine if there was any prejudice from the error and concluded there was not. As we will explain, the inadvertent error in this case is reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818, which requires reversal of the conviction if, after an examination of the entire cause, including the evidence [citation], it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. (People v. Breverman (1998) 19 Cal.4th 142, 178.) There was no violation of defendants constitutional rights and, as will be shown, there was no prejudice to defendant.

B

Prejudice To Defendant From The

Inadvertently Given Verdict Form

Defendant asserts that prejudice should be resolved under the substantial likelihood test. Defendant relies on In re Carpenter (1995) 9 Cal.4th 634 in arguing that prejudice can be found if the improper evidence was substantially likely to have influenced a juror or if it is substantially likely the juror actually became biased toward the accused.

Defendant asserts the incorrect test in this case. As discussed above, this court reviews the error of evidence inadvertently given to a jury under the reasonable probability test. When . . . a jury innocently considers evidence it was inadvertently given, there is no misconduct. . . . There has been merely an error of law . . . such as . . . an incorrect evidentiary ruling. [Citation.] Such error is reversible only if it is reasonably probable that a result more favorable to the defendant would have been reached in the absence of the error. (People v. Cooper (1991) 53 Cal.3d 771, 836; see also People v. Clair (1992) 2 Cal.4th 629, 667-668; People v. Jackson (1996) 13 Cal.4th 1164, 1213-1214.)

The prejudice analysis must first begin with a discussion of what exactly the jury received. Defendant contends the jury received disclosure of appellants prior serious or violent felony conviction for robbery. Defendant is incorrect. The jury received a form that at best implied defendant had a prior felony conviction for robbery. The form asked the jury to find true or not true the allegation that defendant committed a specified crime on a specified date. Nowhere did the form disclose defendants prior juvenile adjudication for robbery.

Reviewing the evidence, we conclude it is not reasonably probable defendant would have received a more favorable result had the error not occurred. Defendant was first seen in the vicinity of the burglary, had the stolen property in his wifes car, incorrectly described the property to the police officer, claimed he bought it two to three weeks prior, and then said he didnt know it was stolen.

Defendant places emphasis on the fact that he was not wearing a white T-shirt like Goulding said. However, defendant was wearing baggy pants as Goulding described and was about the same height. A jury could infer that defendant took off the T-shirt at some point or that Goulding thought she saw a white T-shirt when in fact she just saw a white tank top.^[6] What is most damaging to defendant is the fact the stolen property was in the car he was driving shortly after the burglary occurred and he lied about where he got it. Given the weight of the evidence linking defendant to the crime, it is not reasonably probable that he would have received a more favorable result if the jury had not received a form about a possible prior conviction.

As the People correctly point out, it is axiomatic that the jury is presumed to have followed the instructions and obeyed the law. (People v. Ryan (1981) 116 Cal.App.3d 168, 179, citing People v. Chavez (1958) 50 Cal.2d 778, 790.) The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions. (People v. Smith (2007) 40 Cal.4th 483, 517, quoting People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.) The trial court instructed the jury before the trial and after the presentation of evidence to consider only evidence that was presented in the courtroom, and we presume the jury followed these instructions.

The court also admonished the jury to completely disregard the verdict form inadvertently given to it. A jury will generally be presumed to have followed an admonition to disregard improper evidence or comments, as [i]t is only in the exceptional case that the improper subject matter is of such a character that its effect . . . cannot be removed by the courts admonitions. (People v. Pitts (1990) 223 Cal.App.3d 606, 692, superseded by statute on other grounds in People v. Levesque (1995) 35 Cal.App.4th 530, 536-537, quoting People v. Allen (1978) 77 Cal.App.3d 924, 934-935.) We presume the jury followed the trial courts admonition to disregard the verdict form. The verdict form does not rise to such a level that any possible prejudice could not be removed by the admonition. As discussed previously, at best, the verdict form implied that defendant committed a previous felony.

II

Violation Of Defendants Sixth Amendment Right To A Jury Trial

Defendant argues that his Sixth Amendment right to a jury trial was violated by the use of his prior juvenile adjudication to increase his sentence. There was no violation of defendants right to a jury trial because he did not receive a sentence beyond the prescribed statutory maximum.

Defendant argues that use of his prior juvenile adjudication as a sentencing enhancement violated his right to a jury trial pursuant to Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435]. Apprendi held: Other than the fact of 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. (Id. at p. 490 [147 L.Ed.2d at p. 455], italics added.) The United States Supreme Court later clarified that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Blakely v. Washington (2004) 542 U.S. 296, 303 [159 L.Ed.2d 403, 413].) As the majority noted in Apprendi, The constitutional question . . . is whether the 12-year sentence imposed on count 18 was permissible, given that it was above the 10-year maximum for the offense charged in that count. (Apprendi,at p. 474 [147 L.Ed.2d at p. 445].) For a violation of Apprendi to occur, the sentence imposed must exceed the statutory maximum.

Californias determinate sentencing law (DSL) was challenged on Sixth Amendment grounds in Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856]. Pursuant to Cunningham the statutory maximum for purposes of Californias DSL at that time was the middle term. (Id. at p. ___ [166 L.Ed.2d at p. 868].) The court held that Californias DSL violated the Sixth Amendment because it allowed judicial fact finding to impose a term beyond the prescribed statutory maximum. (Id. at p. ___ [166 L.Ed.2d at p. 871].) The Supreme Court noted that one way to remedy the constitutional infirmity in the DSL was to permit judges genuinely to exercise broad discretion . . . within a statutory range, which, everyone agrees, encounters no Sixth Amendment shoal. (Id. at p. ___ [166 L.Ed.2d at p. 877], fn. omitted, quoting United States v. Booker (2005) 543 U.S. 220, 233 [160 L.Ed.2d 621, 643].) Our Supreme Court later stated, Judicial factfinding in the course of selecting a sentence within the authorized range does not implicate the indictment, jury-trial, and reasonable-doubt components of the Fifth and Sixth Amendments. (People v. Black (2007) 41 Cal.4th 799, 813, italics added, quoting Harris v. United States (2002) 536 U.S. 545, 558 [153 L.Ed.2d 524, 538].) Therefore, judicial fact finding is acceptable if the sentence does not exceed the maximum term.

In response to Cunningham, the Legislature amended the DSL. The Legislature incorporated the United States Supreme Courts recommendation in Cunningham to give judges broad discretion within a statutory range. The amended version reads, When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. (Pen. Code, 1170, subd. (b).) This amendment went into effect on March 30, 2007. With this amendment, the Legislature fixed the statutory maximum as the upper term prescribed by statute. A judge is now free to consider any factors in imposing a sentence up to and including the upper term because all judicial fact finding is within the authorized range. Therefore, there is no longer any Apprendi/Blakely problem with Californias DSL.

Neither the briefs for defendant nor the People address the fact that defendant did not receive a sentence greater than the prescribed statutory maximum for first degree residential burglary. (Pen. Code, 459.) The range of sentences for first degree residential burglary is two, four, or six years. (Pen. Code, 461.) Pursuant to the DSL when Cunningham was decided, the statutory maximum was the middle term of four years in prison. However, after the amendment to section 1170, the statutory maximum for residential burglary in effect at the time of defendants sentencing, December 20, 2007, is the upper term of six years. Here, defendant was sentenced to four years: the low term of two years doubled to four years for the prior strike. Therefore, defendants sentence of four years was equal to or less than the maximum sentence he could receive based on the jury finding him guilty of first degree residential burglary, i.e., six years. Under this circumstance, any judicial fact finding regarding his prior juvenile adjudication was acceptable pursuant to Black because he received a sentence within the prescribed statutory range. Thus, there was no Sixth Amendment violation.

DISPOSITION

The judgment is affirmed.

ROBIE , J.

We concur:

SCOTLAND , P. J.

BUTZ , J.

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^[1] The car was registered to Sharina Ali, whom defendant identified as his spouse.

^[2] Goulding testified that she estimated the mans height at five feet eight inches to five feet nine inches. On cross-examination she said the man could conceivably have been six feet tall or possibly five feet six inches. Defendant is five feet six inches tall.

^[3] At that time, defendant had been placed in the back of the police cruiser.

^[4] This issue is currently under review by the California Supreme Court in People v. Nguyen, review granted October 10, 2007, S154847.

^[5] Defendant argues in part IB of the Argument of his opening brief that the trial court improperly inquired into the effect of the verdict form on the jurys deliberations. The trial court based its prejudice analysis on this inquiry; however, as we discuss below, there was no prejudice to defendant. Moreover, we decide this appeal on the facts introduced at trial and need not resort to the trial courts inquiry regarding the effect the verdict form had on the jurors. Therefore, defendants argument in part IB is rejected under the prejudice analysis in part IB of the Discussion of this opinion.

^[6] The passenger in defendants car, Wilson, was wearing a white T-shirt; however, he had on brightly colored shorts that did not match Gouldings description.