Filed
8/9/12 P. v. Harris CA5
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
KIRK TREMAINE HARRIS,
Defendant and
Appellant.
F061768
(Super.
Ct. No. F09904610)
APPEAL from
a judgment of the Superior Court of
County. John F. Vogt, Judge.
Patricia L.
Brisbois, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and
William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
In this court’s published opinion,
492, we noted that appellant Kirk Tremaine Harris’s 1980 conviction was invalid
and could not be used to enhance his sentence for his 1988 conviction for
robbery. (Id. at pp. 494, 497.) In
this current appeal, Harris contends his conviction on two counts of robbery
must be reversed because the invalid 1980 conviction was used to impeach his
testimony and to enhance his sentence.
We agree the 1980 conviction was improperly used, but conclude: (1) the use of the invalid conviction
for impeachment purposes was harmless
error and (2) the sentencing error can be corrected by a remand for
resentencing.
FACTUAL AND PROCEDURAL SUMMARY
On the
night of August 3, 2009, a robbery took place at a Valero gas station. About two hours later, a robbery occurred at
a Walgreens less than three miles from the Valero gas station. Surveillance videos from the two businesses
show the same white Pontiac parked in the respective parking lots at the time
of the robberies. Two men are sitting
inside the Pontiac; neither man is seen entering the Walgreens or purchasing
gas. The surveillance videos show the
man sitting in the passenger seat of the Pontiac exiting the car at each
location, assaulting a lone older male at each location as they left the place
of business, and taking each gentleman’s wallet.
At the
Valero station, the man assaulted was Michael Simpson. The passenger stepped out of the Pontiac,
confronted Simpson, and asked for money.
Simpson replied he had none, went inside the gas station building, and
then returned to pump gas. When he had
finished, the man grabbed Simpson’s arm and said, “Give me your fuckin’ wallet
old man,” spun Simpson around, and hit Simpson in the head with a hammer. Simpson fell to the ground; the man took his
wallet and walked away.
At the
Walgreens store, the man accosted was John Quiroz. Quiroz parked in the Walgreens lot and
entered the store in order to buy a candy bar.
When Quiroz exited the store, a Black man walked toward him and asked
for money. Quiroz responded that he had
no money and the man punched him in the face.
The man told Quiroz to hand over all his money and then punched Quiroz
again. The man took Quiroz’s wallet and
ran to the white Pontiac, which then drove off.
An
eyewitness to the incident at the Valero gas station wrote down the license
plate number of the white Pontiac. The
police ran the license plate number and found the car was registered to Tommy
Wallace. Wallace told police he sold the
car to Harris in June 2009.
On August
4, 2009, the police stopped a white Pontiac that Harris was driving. The police ran the license plate and found a
bulletin for the vehicle; Harris was taken into custody.
An
eyewitness to the Walgreens robbery identified Harris from a photo line-up and
also in court.
Harris was
charged with two counts of second degree robbery, pursuant to Penal Code
section 211.
title="">[1] It also was alleged that Harris had four
prior serious felony convictions that constituted “strikes” for purposes of the
“Three Strikes” law (§§ 667, subds. (b-(i), 1170.12, subds. (a)-(d))
and that he had served six prior prison terms.
Harris
testified in his own defense. He claimed
he was purchasing the Pontiac from Wallace and making monthly payments. Harris testified that on the night of the
robberies, he was smoking crack cocaine under the freeway at G Street and had
rented the Pontiac to a lot of young people in exchange for the cocaine. He denied being at the Valero gas station or
the Walgreens that evening.
In
rebuttal, the investigating detective testified that Harris told him only he,
Harris, and his girlfriend ever drove the Pontiac. Harris also told the detective that he had
the Pontiac the entire night of August 3, 2009, using it to drive to his
sister-in-law’s and then to meet up with a prostitute.
The jury
found Harris guilty of both robbery counts.
Following a bench trial, the trial court found true the allegations that
Harris had suffered four prior serious felony “strike” convictions and served
two prior prison terms.
On January
12, 2011, the trial court sentenced Harris to a total term of 82 years to life,
consisting of two consecutive 25 years to life terms on the two robbery counts
after application of Three Strikes (§ 667, subds. (b)-(i)), plus two
15-year terms for three prior serious felony enhancements (§ 667, subd.
(a)(1)), and two 1-year terms for the prior prison term enhancements
(§ 667.5, subd. (b)).
DISCUSSION
Harris
contends it was error to use his 1980 conviction to impeach him. In related arguments, Harris also contends
the prosecutor committed misconduct and deprived him of a fair trial by using
the invalid 1980 conviction; defense counsel rendered ineffective assistance of
counsel by failing to object to use of the 1980 conviction for impeachment and
sentencing purposes; and the trial court abused its discretion and deprived him
of a fair trial by allowing use of the 1980 conviction.
The People concede the error in
using the 1980 conviction for impeachment, but contend the error was
harmless. The People also note that
while the current convictions should be affirmed, the matter should be remanded
for resentencing because it was error to use the constitutionally invalid
conviction to enhance Harris’s sentence.
Standard of
Review
The use of a constitutionally
invalid conviction to impeach or to enhance punishment is error of federal
constitutional magnitude. (
218-219.) Evidence of prior convictions
that are invalid may not be used to establish guilt, enhance punishment, or to
impeach. (Bates v. Nelson (9th Cir. 1973) 485 F.2d 90, 95.) Erroneous use of a defendant’s
constitutionally invalid priors must be assessed under a “‘harmless beyond a
reasonable doubt’” standard. (
115.) Where there is other, strong
evidence of a defendant’s guilt, use of the constitutionally invalid priors is
harmless error. (People v. Coffey, supra,
at p. 223.)
Use of 1980
Convictions to Impeach
Harris concedes that prior
convictions may be used to impeach a defendant’s testimony. (Evid. Code, § 788.) He contends,
however, that it was error to allow the use of 1980 convictions for kidnapping
and robbery to be used to impeach him when those convictions had previously
been determined to be invalid.
name="_ftnref2" title="">[2]
We assess the use of the invalid
1980 conviction (or convictions) under a harmless error standard. (People
v. Taylor (1972) 8 Cal.3d 174,
186.) In light of the abundant other
evidence establishing Harris’s guilt, we conclude the use of the invalid
conviction to impeach was harmless error.
The evidence established that
Harris had purchased the white Pontiac seen in the videos of the robberies in
2009, was making payments on the vehicle, and was in possession of that vehicle
when he was arrested. Harris told the
investigating detective that he was in possession of the white Pontiac the
entire night of August 3, 2009, when the robberies took place, and that only he
or his girlfriend ever drove the Pontiac.
An eyewitness to the Walgreen’s
robbery identified Harris from a photo line-up and in court as the driver of
the white Pontiac at the time of the robbery.
An eyewitness to the robbery at the Valero gas station recorded the
license plate of the vehicle used by the robbers; it was the license number of
Harris’s white Pontiac.
Harris was of the same size and
build as the man shown in the two surveillance videos as the driver of the
white Pontiac during the robberies. At
the time of his arrest, Harris was wearing the same distinctive shirt seen in
the surveillance videos.
We disagree with Harris’s statement
that his “credibility was a critical issue at trial” and that the 1980
conviction(s) were somehow inherently more prejudicial than the 1986 and 1988
convictions, and therefore the error is not harmless. As the above recitation of the evidence
demonstrates, Harris’s testimony was hardly the crux of the case. Harris’s guilt was established by abundant
other evidence. Furthermore, when Harris
was charged with two robberies in the current case, the jury was not likely to
view two prior robberies committed in 1986 and 1988 as somehow “less damaging”
than the 1980 offenses that were more remote in time. (See Tucker
v. United States (N.D.Cal. 1969) 299 F.Supp. 1376, 1378-1379 [holding that
use of constitutionally invalid prior convictions to impeach was harmless error
where defendant’s testimony had been impeached by prior inconsistent statements
and other evidence].)
Harris’s testimony and credibility
at trial, where he claimed he had rented the white Pontiac to people in
exchange for crack cocaine during the time the robberies took place, was
impeached by other, valid evidence exclusive of the invalid 1980
convictions. Harris’s testimony at trial
was inconsistent with his statement to the investigating detective at the time
of arrest that he was in possession of the car the entire evening of August 3,
2009, and did not let others (except his girlfriend) drive the Pontiac. In addition, Harris had suffered a 1986
conviction for robbery and a 1988 conviction for robbery, which were used to
impeach. This other impeaching evidence,
combined with the strong evidence of Harris’s guilt, establishes that the error
of using the 1980 conviction(s) to impeach was harmless beyond a reasonable
doubt. (People v. Coffey, supra, 67 Cal.2d at p. 223.)
In light of our conclusion that use
of the invalid 1980 conviction(s) for purposes of impeachment was harmless
error, we need not address Harris’s claims of prosecutorial misconduct and
ineffective assistance of counsel.
Sentencing
Issues
The trial court found true that
Harris had suffered two convictions in 1980, one for kidnapping and one for
robbery with a firearm enhancement.
Those true findings were used to increase the punishment imposed for the
current offenses.
The true findings on the 1980
convictions must be reversed in light of the decision in People v. Harris, supra, 226 Cal.App.3d at pages 494 and 497,
and the People concede this point. In
addition, because the 1980 convictions were used to increase punishment for the
current offenses, the sentence must be vacated and the matter remanded for
resentencing.
DISPOSITION
The
sentence is vacated and the true findings on the 1980 convictions for
kidnapping and robbery with a firearms enhancement are reversed. The matter is remanded for resentencing. The trial court shall prepare an amended
abstract of judgment and forward a copy to the
affirmed.
_____________________
Kane, J.
WE CONCUR:
_____________________
Cornell, Acting P.J.
_____________________
Detjen, J.
name="_ftn1" title="">[1] References
to code sections are to the Penal Code unless otherwise specified.
name="_ftn2" title="">[2] The
testimony in the current trial was that Harris suffered a 1980 conviction for
robbery and a 1980 conviction for kidnapping.
Harris does not dispute this characterization of his invalid 1980
convictions in this appeal, although we noted in People v. Harris, supra, 226 Cal.App.3d at page 494,
footnote 1, that the 1980 conviction appeared to be robbery with the use
of a firearm, not robbery and kidnapping.
