P. v. Young
Filed 9/6/12
P. v. Young CA2/3
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
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publication or ordered published for purposes of rule 8.1115
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOHN CEPHAS YOUNG,
Defendant and Appellant.
B230106
(Los Angeles
County
Super. Ct.
No. PA065631)
APPEAL from a judgment of the Superior Court of
County, Cynthia L. Ulfig, Judge. Affirmed.
Maxine Weksler, under appointment by the Court of
Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette,
Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General,
Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for
Plaintiff and Respondent.
A jury found defendant and appellant John Cephas Young
guilty of one count of burglary. On appeal, he contends that the judgment must
be reversed due to instructional error, namely, the trial court failed to
instruct on the defense of consent and should not have instructed on aiding and
abetting and on insurance fraud. He also
contends that the trial court abused its discretion by denying his
sentence. We reject all contentions and
affirm the judgment.
I. Factual background.
A. Prosecution
case.
In
September 2009, Miguel Raphael attended Columbia
College, a film school. He and Tyler Shields shared an off-campus
dormitory room. Sometime in 2008 or
early 2009, Raphael met defendant, who said he worked for a moving company. The two men started hanging out almost every
day, recording music in the “A.D.R.” room at Columbia. A Russian man occasionally joined them.
In
September 2009, defendant asked Raphael if he could get a school camera for a
friend. On September 5, Raphael texted
to defendant a picture of a video camera belonging to the school. Raphael checked out the camera from school.
On September 8, 2009, Raphael left his
dorm around 7:30 a.m. and returned
around 1:00 a.m. on September 9. During the time he was out of his room, he
saw defendant, who was with the Russian guy, around 4:00 p.m. Raphael
and defendant also spoke over the phone during the day. Shields left the room around 12:30 in the afternoon and returned around 4:00 p.m. to pick up his laptop, but he left
again and did not return until about 1:30 a.m. When Raphael returned to the room around 1:00 a.m., the bottom lock was locked, but he
could not tell if the top was locked.
There were no signs of forced entry, but the room was in disarray, with
clothes and books strewn on the floor and the refrigerator and drawers
open. Missing were Raphael’s two
suitcases and camera and lighting equipment that Shields had checked out from Columbia. Also missing were Shields’s computer desktop
and laptop, movies, and books.
The police
showed Raphael surveillance video of the building where Raphael and Shields
lived. Raphael identified defendant, who
had items from Raphael’s and Shields’s room.
As part of his investigation into
the burglary, Detective John Goslin with the Los Angeles Police Department
interviewed defendant, who said Raphael paid him $30 to take his things so that
Raphael could file an insurance claim.
Raphael denied paying defendant to move his things. He never filed an insurance claim for the
stolen items, because he didn’t have insurance.
B.
Defendant testified. In addition to owning a moving company,
defendant was a musician and artist, and he and Raphael recorded songs
together. Raphael was “almost like a
little brother” to defendant. They had a
falling out, however, over a money transaction:
defendant’s friend, Baldwin, wire transferred money into Raphael’s bank
account and paid him $200, which somehow caused the account to become overdrawn. Defendant told Raphael that the problem was
between Raphael and Baldwin.
On September 5, 2009, Raphael texted a picture of a camera to
defendant and said he knew somebody who wanted to buy cameras, but he needed
defendant to drive him.
On September 8, 2009, Raphael called defendant multiple
times, asking him to move cases from his room, because Raphael was going to Florida. Defendant and Raphael met sometime between
5:00 p.m. and 7:30 p.m., and Raphael gave his key to defendant. Raphael told defendant to move the items
separated and stacked in cases, including what looked like camera cases,
although defendant did not know what was in the cases. Defendant and “the Russian guy” moved the
items and took them to defendant’s house.
When they left Raphael’s dorm room, it was not ransacked. Raphael and defendant met again around 12:45
a.m. so that defendant could return the room key to Raphael.
station and gave the items to him.
When asked about his statement that
Raphael paid him $30 to move his stuff as part of an insurance scam, defendant
said “[t]hat was a mischaracterization of how the dialogue went.”
Defendant had
two felony convictions, one on October 23, 2008 for terrorist threats and a
second on November 10, 2004 for receiving stolen property.
II. Procedural background.
On August 13,
2010, a jury found defendant guilty of residential burglary (Pen. Code,
§ 459).
title="">[4]
On January 5,
2011, the trial court sentenced defendant to six years, doubled based on a prior
conviction found true by the jury, to 12 years in prison.
III. Pitchess
Defendant contends that the trial
court abused its discretion by denying his Pitchess
motion, which asked for the records of Detective Goslin. We disagree that the court abused its
discretion.
A. Additional
facts.
Defendant’s
Pitchess motion sought any and all
complaints pertaining to “acts of bias, racial misconduct, dishonesty,
cover-up, acts constituting a violation of statutory or constitutional rights
of others, acts of excessive force if it center[s] around[] racial issues,
falsifying evidence, such material shall include, but are not limited to
material generated during investigation conducted by these officers . . .
.” In support of his motion, defendant
submitted his declaration stating that “the named officer [admitted] that he
illegally enter[ed] the defendant[‘s] backyard, detained the defendant, ‘lied’
to the defendant, . . . obtained information, that he omitted significant parts
of his police report to change the overall tone and outcome of the actual
happenings versus his colorful account of events, . . .” Defendant also stated that Detective Goslin
showed a videotape to a witness, had discussions with the witness and aided the
witness in identifying him.
Attached to
his motion was Detective Goslin’s report stating that after receiving
information defendant burglarized Raphael’s dorm room, Goslin went to
defendant’s home. When there was no
answer at the door, the detective walked towards the garage after being told
someone lived there. Defendant came out
of the house and identified himself. To
get defendant’s date of birth, the detective told defendant he was
investigating a fight at CSUN. Later,
the detective showed Raphael a photographic six-pack with defendant in position
3. He asked Raphael if he could pick
defendant from the lineup, and Raphael did.
Raphael also identified defendant from the video surveillance.
At the
hearing on the motion, the trial court found that the detective did not illegally
enter defendant’s residence and that the detective’s use of a ruse to get
defendant’s date of birth did not constitute an
B. The
trial court did not abuse its discretion by denying the Pitchess motion.
On a
showing of good cause, a criminal defendant is entitled to discovery of
relevant documents or information in the confidential personnel records of a
peace officer who is accused of misconduct against the defendant. (People
v. Gaines (2009) 46 Cal.4th 172, 179; Evid. Code, § 1043 et seq.) “To initiate discovery, the defendant must
file a motion supported by affidavits showing ‘good cause for the discovery,’
first by demonstrating the materiality of the information to the pending litigation,
and second by ‘stating upon reasonable belief’ that the police agency has the
records or information at issue.
[Citation.]” (
Cal.4th 1011, 1019.) If a defendant
shows good cause, the trial court examines the material sought in camera to
determine whether disclosure should be made and discloses “only that
information falling within the statutorily defined standards of
relevance.” (Ibid.)
“There is a ‘relatively low threshold’ for
establishing the good cause necessary to compel in camera review by the
court. [Citations.]” (People
v. Thompson (2006) 141 Cal.App.4th 1312, 1316.) To establish good cause, “defense counsel’s
declaration in support of a Pitchess
motion must propose a defense or defenses to the pending charges” and
articulate how the discovery sought might lead to relevant evidence. (Warrick
v. Superior Court, supra, 35 Cal.4th at p. 1024.) The defense must present “a specific factual
scenario of officer misconduct that is plausible when read in light of the
pertinent documents.” (
is one that might or could have occurred.
Such a scenario is plausible because it presents an assertion of
specific police misconduct that is both internally consistent and supports the
defense proposed to the charges.” (
the denial of facts described in the police report may establish a plausible
factual foundation.” (
when ruling on Pitchess motions (
832), and we review a trial court’s ruling for abuse of discretion (
1228).
Defendant
here did not establish good cause for an in camera review of Detective Goslin’s
records, because defendant’s declaration did not articulate how the discovery
sought might lead to relevant evidence or otherwise present a specific factual
scenario of officer misconduct that might support a defense to the
charges. (Warrick v. Superior Court, supra, 35 Cal.4th at pp.
1024-1026.) Defendant’s first reason for
wanting the detective’s records—the detective used a ruse to gain illegal
entrance to defendant’s property—was unrelated to any defense. It is unclear how the manner in which the
detective obtained defendant’s date of birth or this brief encounter between
the detective and defendant related to any defense to burglary. In any event, the trial court found that
Detective Goslin did not illegally enter defendant’s property. According to Detective Goslin’s report, he
knocked on the front door. There was no
answer. A person told him that someone
lived in the detached garage. As the
detective walked towards the garage, a man stepped from the home. The detective asked for his name, and the man
identified himself as John Young. The
detective said he was investigating a fight at CSUN and needed defendant’s date
of birth, which defendant gave. The
detective did not enter defendant’s home or otherwise detain him. (See generally, Florida v. Bostick (1991) 501 U.S. 429, 434 [a seizure does
not occur simply because a police officer approaches a person and asks a few
questions].)
The second
reason defendant gave to support his Pitchess
motion was the detective “aided” Raphael in identifying him. It is again unclear how this related to any
defense to burglary, as there was no claim he was misidentified. Defendant did not deny he was friends with
Raphael or that he removed items from Raphael’s room, as depicted in the video
surveillance. Rather, he said he took
the items with Raphael’s permission.
Moreover, the trial court found that Raphael had previously identified
defendant as the man in the video when he viewed the video with a school
administrator. Defendant therefore did
not establish that the identification made with Detective Goslin was related to
his defense.
Finally,
to the extent that defendant generally argued he was entitled to Detective
Goslin’s records because the detective “omitted significant parts of his police
report to change the overall tone and outcome of the actual happenings versus
his colorful account of events” this charge lacked the specificity required of
a Pitchess motion. (See generally, Warrick v. Superior Court, supra, 35 Cal.4th 1011.)
IV. Instructional error on
the defense of consent.
Defendant
requested a consent instruction under People
v. Thomas (1977) 74 Cal.App.3d 320.
The court found that the instructions already covered the consent issue. No error occurred.
Burglary is committed when a person
enters a building with the intent to commit a felony. (§ 459.)
A defense of consent to burglary is available “when the owner
in the mind of the invitee.” (
1385, 1397-1398; see also People v.
Thomas, supra, 74 Cal.App.3d 320.)
There must be evidence of informed consent to enter coupled with the
visitor’s knowledge the occupant is aware of the felonious purpose and does not
challenge it. (Felix, at pp. 1397-1398.) Consent to burglary is an affirmative
defense. (People v. Sherow (2011) 196 Cal.App.4th 1296, 1304;
In a criminal case the trial court
must instruct on the general principles of law relevant to the issues raised by
the evidence and necessary for the jury’s understanding of the case, including
affirmative defenses for which the record contains substantial evidence. (People
v. Breverman (1998) 19 Cal.4th 142, 154; People v. Salas (2006) 37 Cal.4th 967, 982.) But if the affirmative defense is
inconsistent with the defendant’s theory of the case, then the trial court need
not instruct on it. (
Here, the jury was instructed with
CALCRIM No. 1700, namely, to establish defendant committed a burglary, the
People had to prove he entered a room within a building and when he entered the
room he intended “to commit theft or other felony.” The jury was further instructed that to be
guilty of theft, the People had to prove:
“1. The defendant took possession of the property owned by someone
else; [¶] 2. The defendant took the
property without the owner[’s] or owner’s agent’s consent; [¶] 3. When
the defendant took the property, he intended to deprive the owner of it
permanently; and, [¶] 4. The defendant moved the property, even a small
distance, and kept it for any period of time[,] however[,] brief.” (CALCRIM No. 1800, italics added.) The “other felony” that the jury was
instructed on was insurance fraud (with aiding and abetting instructions).
Thus, the two theories of burglary
were defendant entered Raphael’s and Shields’s room with the felonious intent
to commit either (1) a theft or (2) to aid and abet an insurance fraud. As to the theft theory of burglary, the jury
was instructed that the People had to prove the lack of owner’s consent. Therefore, additional instruction on the
consent issue was unnecessary.
As to the insurance fraud theory of
burglary, the trial court properly refused to instruct the jury generally that
consent was a defense to burglary under that theory. First, to instruct the jury on consent in
connection with the insurance fraud would have been inconsistent with the
defendant’s theory of the case. In the
prosecutor’s case-in-chief, Detective Goslin testified that defendant said
Raphael paid him $30 to take his stuff so he could make an insurance claim. When defendant was asked about this
statement, he said the “dialogue” between him and Detective Goslin was
“mischaracteriz[ed].” Defense counsel
then tried to cast further doubt on the accuracy of Detective Goslin’s
testimony about the alleged insurance scam by stating in closing argument that
defendant’s alleged report was “undocumented”
and “not recorded,” and there was no evidence either Raphael or Shields
had insurance. The defense was therefore
based on consent to the theft and not on consent to the insurance fraud.
It would have been error for the
trial court to instruct the jury generally on consent for an additional
reason: there was no evidence that
Shields, Raphael’s roommate, either consented to the entry or knew of
defendant’s felonious intent.
name="_ftnref5" title="">[5] (See People
v. Clayton (1998) 65 Cal.App.4th 418.)
We therefore
conclude that the trial court properly refused to instruct the jury generally
on consent.
V. Instructional error on
aiding and abetting and insurance fraud.
Defendant
also contends that the trial court erred by instructing the jury on aiding and
abetting and insurance fraud. We
disagree.
As we have
said, the jury was instructed that defendant could be found guilty of burglary
if he entered the dorm room with the intent either to commit a theft by larceny
or to commit insurance fraud. The court
also instructed the jury on aiding and abetting. (CALCRIM Nos. 400 & 401.) The prosecutor argued that defendant was
guilty of burglary if he entered the room with the intent to aid and abet an
insurance fraud scheme.
Defendant
argues that the aiding and abetting and insurance fraud instructions were given
in error, because there was no evidence Raphael completed the crime of
insurance fraud, hence, it was a legal impossibility for defendant to aid and
abet an insurance fraud. Instead,
Raphael testified he had no insurance and did not file a claim for any lost or
stolen items. The People, however, did
not have to establish that the crime of insurance fraud was ultimately
committed to find defendant guilty of burglary on an aiding and abetting
insurance fraud theory. “One may [be]
liable for burglary upon entry with the requisite intent to commit a felony or
a theft (whether felony or misdemeanor), regardless of whether the felony or
theft committed is different from that contemplated at the time of entry, or
whether any felony or theft actually is committed. [Citations.]”
(People v. Montoya (1994) 7
Cal.4th 1027, 1041-1042; see also People
v. Walters (1967) 249 Cal.App.2d 547, 550 [the crime of burglary is
completed when entry with the essential intent is made, “regardless whether the
felony planned is committed or not”].)
If “the
necessary intent exists at the time of entry, the crime of burglary is
committed. It is immaterial whether the
intended theft or other object . . . is accomplished; i.e., neither
impossibility of achievement of the intended purpose, nor abandonment of that
purpose, is a defense.” (2 Witkin &
Epstein, Cal. Criminal Law (4th ed. 2012) Crime Against Property, § 148,
p. 195; see also People v. Shaber (1867)
32 Cal. 36, 38 [“a conviction would be due even though it should appear
that there were no goods in the building at the time the entry was made. The forcible entry and the intent being found
or given, the crime would be complete even though it should turn out that,
contrary to the calculations of the burglar, the building was empty”].) “The sting of the crime is, in short, the
guilty purpose, without reference to the possibility of accomplishing it, in
any given instance.” (
People v. Montoya, supra, 7 Cal.4th
at p. 1042.)
Defendant
does not address Montoya and instead
relies on People v. Perez (2005) 35
Cal.4th 1219. Perez found that for a defendant to be guilty of a crime under an
aiding and abetting theory there must be proof the direct perpetrator committed
or attempted to commit a crime, “i.e., absent proof of a predicate offense,
conviction on an aiding and abetting theory cannot be sustained.” (Perez,
at p. 1225.) Perez is not on point because it was an aiding and abetting case,
not a burglary one. If defendant here
had been charged with aiding and abetting insurance fraud, then
was no evidence that Raphael or anyone else actually tried to submit a
fraudulent insurance claim. But the prosecutor’s
theory was defendant committed burglary because, when he entered the dorm room,
he had the felonious intent to aid and abet an insurance fraud.
Defendant
also argues that the aiding and abetting instruction was improper because
defendant could not aid and abet Raphael to burglarize his own home. (See generally, People v. Gauze (1975) 15 Cal.3d 709, 714 [defendant who entered
own home with the intent to assault his roommate could not be guilty of
burglary].) This is the crux of
defendant’s argument: if the burglary
was predicated on a felonious intent to aid and abet Raphael in an insurance
scam, defendant could not be guilty of burglary because he had Raphael’s
consent to be in the room and to take his things. Hence, a burglary based on this theory was a
legal impossibility.
Even if
defendant had Raphael’s consent to be in the room and to take his things, there
was no evidence that defendant had Shields’s
consent to be in the room or to take his
things. In People v. Clayton, supra, 65 Cal.App.4th 418, Richard hired Clayton
to kill Richard’s wife, Kathleen.
Richard gave the key to the house to Clayton, who used it to enter the
home. Clayton attacked Kathleen. He was thereafter charged with, among other
things, burglary. Clayton acknowledged the general rule that one cannot burglarize
his or her own home (People v. Gauze,
supra, 15 Cal.3d 709). But the
defendant in Clayton did not
burglarize his own home. Rather, Richard
shared possession of the house with Kathleen, who did not give Clayton consent
to the entry. (Clayton, at p. 420.)
“[I]ndependent of the consequences of the intended felony, there is a
danger of violence when one person in possession of the premises consents to a
third person’s entry for the purpose of injuring a person with joint possession
of the premises.” (Id. at p. 421.) Thus,
where one of two persons with a joint right of possession of the same premises
gives permission to a third person to enter the premises to commit a felony on
the other person with the joint right to possession, the third person may be
guilty of burglary. (See
Here, there
was no evidence Shields gave defendant permission to enter the premises. There was no evidence Shields knew that
defendant intended to take his things, namely, his computer, books and
music. Shields instead testified he had
never seen defendant, testimony from which Shields’s lack of consent can
reasonably be inferred.
We
therefore conclude that the jury was properly instructed on aiding and abetting
and insurance fraud.
VI. The strike sentence.
After a
jury trial on defendant’s prior convictions, the jury found that defendant
suffered a prior conviction of section 422, criminal threats, on October 23,
2008.
and doubled defendant’s six-year high term sentence to 12 years, based on that
conviction. Defendant now contends that
the “strike sentence” was illegal because his prior conviction of criminal
threats was a misdemeanor, not a prior serious felony within the meaning of the
Three Strikes law. We disagree.
A wobbler
is “ ‘an offense which may be charged and punished as either a felony or a
misdemeanor.’ [Citations.]” (People
v. Statum (2002) 28 Cal.4th 682, 699, italics omitted.) “The determination of whether a prior
conviction is a prior felony conviction for purposes of [the Three Strikes law]
shall be made upon the date of that prior conviction and is not affected by the
sentence imposed unless the sentence automatically, upon the initial
sentencing, converts the felony to a misdemeanor.” (§§ 667, subd. (d)(1), 1170.12,
subd. (b)(1); see also People v.
Glee (2000) 82 Cal.App.4th 99 (Glee).) A felony is converted to a misdemeanor after
a judgment imposing punishment other than imprisonment in the state
prison. (Glee, at p. 102; former § 17, subd. (b)(1).)
Defendant
relies on Glee to support his
argument that his criminal threats conviction was a misdemeanor and not a
felony. In Glee, the jury found that the defendant had previously been
convicted of assault with a deadly weapon, a wobbler offense. (Glee,
supra, 82 Cal.App.4th 99.) On appeal, he argued there was insufficient
evidence to support sentencing him under the Three Strikes law, because the
assault conviction was not a strike. (
assault with a firearm to probation and one year in the county jail, with
probation to terminate at the end of that year.
(Ibid.) Glee found
that the assault did not qualify as a strike because the sentence imposed
“automatically rendered the crime a misdemeanor” under section 17, subdivision
(b)(1). (Glee, at pp. 105-106.) In
reaching this conclusion, Glee relied
on several key facts. First, the
sentencing court did not indicate it intended to impose a felony sentence. Second, the sentencing court granted “summary
probation,” which is only authorized in misdemeanor cases. Third, the sentencing court terminated
probation upon completion of the jail time, and did not retain jurisdiction
over the case to impose a felony sentence if the defendant violated any
probation conditions. (
distinguished cases where the court suspended proceedings on a wobbler and
granted probation with county jail as a probation condition and time remained
on probation after the defendant’s release from jail. In such cases, the court retained
jurisdiction over the defendant to impose a state prison sentence for a
probation violation committed after the defendant’s release from jail. (Id.
at p. 105.)
Here,
defendant pleaded no contest, in 2008, to one count of criminal threats. Criminal threats is a wobbler offense,
punishable by imprisonment in county jail for a period not to exceed one year
or by imprisonment in the state prison. (§ 422, subd. (a).)
Imposition of defendant’s sentence was suspended, and he was
placed on three years’ “formal probation” on various conditions, including that
he serve 416 days in jail. The minute order
from the date of defendant’s plea states:
“The defendant is rearraigned and pleads no contest to count 3, a
violation of Penal Code section 422, a felony.”
Thus, unlike the Glee defendant,
defendant here was placed on formal probation, not summary probation. Unlike the sentencing court in
terminate probation upon completion of jail time, and instead retained
jurisdiction over the case to impose a felony sentence if defendant violated
any probation conditions.
Thus, this
case is more like People v. Barkley (2008)
166 Cal.App.4th 1590. The defendant in
conviction was a misdemeanor and not a felony for the purposes of the Three
Strikes law. On the assault case, he had
been “ ‘granted probation generally’ ” and ordered to serve 12 months
in jail as a condition of probation. (
probation on completion of the jail sentence, and the clerk’s minutes indicated
that the defendant was placed on “formal probation.” (Ibid.)
said, a “jail term that is imposed as a condition of probation is not a
misdemeanor ‘sentence.’ ” (
defendant’s jail term was imposed as a condition of probation, and therefore it
was not a misdemeanor sentence.
We
therefore conclude that the record supports the trial court’s decision to treat
defendant’s prior conviction as a strike for the purposes of the Three Strikes
law, and we reject defendant’s contention that his strike sentence was
unlawful.
VII. The upper term sentence.
Defendant
next contends that his upper term sentence of six years was an abuse of the
trial court’s discretion. We disagree.
Whether to
impose the upper term is a decision resting in the trial court’s sound
discretion. (§ 1170, subd. (b).) In determining the appropriate term, the
court may consider the record in the case, the probation report, evidence
introduced at the sentencing hearing, and “any other factor reasonably related
to the sentencing decision” (Cal. Rules of Court, rule 4.420(b)) and “shall
select the term which, in the court’s discretion, best serves the interests of
justice” (§ 1170, subd. (b)). A trial
court may base an upper term sentence upon any aggravating circumstance the
court deems significant, subject to specific prohibitions. Its discretion to identify aggravating
circumstances is limited only by the requirement they be reasonably related to
the decision being made. (
825, 848.) The trial court “shall state
the reasons for its sentence choice on the record at the time of
sentencing.” (§ 1170, subd. (c);
that support its decision or to weigh aggravating and mitigating
circumstances,” nor must it provide a “ ‘concise statement of the ultimate
facts that the court deemed to constitute circumstances in aggravation or
mitigation.’ [Citations.]” (Sandoval,
at p. 847.)
A trial
court’s sentencing decision will not be disturbed on appeal unless it is so
irrational or arbitrary that no reasonable person could agree with it. (People
v. Jones (2009) 178 Cal.App.4th 853, 860; People v. Carmony (2004) 33 Cal.4th 367, 377.) The court’s “discretion must be exercised in
a manner that is not arbitrary and capricious, that is consistent with the
letter and spirit of the law, and that is based upon an ‘individualized consideration
of the offense, the offender, and the public interest.’ [Citation.]”
(People v. Sandoval, supra, 41
Cal.4th at p. 847.) A court abuses its
discretion if it fails to exercise its discretion in sentencing, relies upon
irrelevant circumstances, or relies upon circumstances that constitute an
improper basis for the decision. (
sentence to clearly show the sentencing decision was irrational or arbitrary,
and an appellate court will not substitute its judgment for that of the trial
court. (Jones, at p. 861.) “Even if
a trial court has stated both proper and improper reasons for a sentence
choice, ‘a reviewing court will set aside the sentence only if it is reasonably
probable that the trial court would have chosen a lesser sentence had it known
that some of its reasons were improper.
[Citation.]’ ” (
The trial
court here based its selection of the upper term on the numerous and increasing
nature of defendant’s prior convictions; he acted in concert with another
person; he was on probation when he committed the current crime; defendant
showed no remorse; and he lied under oath.
These factors supported the upper term, namely, defendant had prior
juvenile and adult convictions (e.g., forgery, a misdemeanor driving on a suspended
license, and misdemeanor possession of burglary tools) that were numerous or of
increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)); he committed
the burglary with another person, the Russian, and there was evidence defendant
was in a position of leadership (Cal. Rules of Court, rule 4.421(a)(4));
and defendant was on probation when he committed the current crime (Cal. Rules
of Court, rule 4.421(b)(4)). Given
that the court properly relied on these factors, we need not further address
defendant’s argument that the trial court relied on improper or irrelevant
factors and relied too heavily on his recidivism—matters which, even if true,
would not compel us to conclude the court abused its considerable discretion in
imposing the upper term.
Defendant
also contends that there was an improper dual use of facts to enhance the
sentence and to impose the aggravated term, namely, the court used his prior
conviction to impose the strike sentence and to impose the upper term. (§ 1170, subd. (b); Cal. Rules of
Court, rule 4.420(c) & (d).) The
Three Strikes law, however, is not an enhancement, as meant in section 1170,
subdivision (b). It is a separate
sentencing scheme that applies automatically where a defendant has at least one
prior serious felony conviction and the trial court does not strike it. (People
v. Garcia (2001) 25 Cal.4th 744, 757.)
The Three Strikes law required the court to double the term for
defendant’s present conviction.
Consequently, when the court imposed the upper term on the robbery
conviction and doubled that term under the Three Strikes law, the court did not
engage in an improper dual use of facts in sentencing.
Finally,
defendant also contends that his trial counsel provided ineffective assistance
for failing to object to “dual and improper use of aggravating sentencing
factors” and to state reasons why defendant fell outside the Three Strikes
sentencing scheme. “In assessing claims
of ineffective assistance of trial counsel, we consider whether counsel’s
representation fell below an objective standard of reasonableness under
prevailing professional norms and whether the defendant suffered prejudice to a
reasonable probability, that is, a probability sufficient to undermine
confidence in the outcome.
[Citations.]” (
1211; see also Strickland v. Washington
(1984) 466 U.S. 668, 694.) If the
defendant makes an insufficient showing with regard to either component, the
claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.) Defendant’s counsel was not ineffective for
failing to object or to offer additional arguments in favor of a lighter
sentence. He filed a
the prior conviction should be stricken, but the court denied it. The trial court also stated the reasons for
its sentencing decisions at length, and any further argument or objection by
counsel would not have changed those decisions.
VIII. Section 667, subdivision
(a), enhancement.
The
People ask that we correct an alleged error in defendant’s sentence, namely,
that we impose an additional five-year term under section 667, subdivision
(a)(1), which would bring defendant’s total sentence to 17 years.
Section
667, subdivision (a)(1), provides, “any person convicted of a serious felony
who previously has been convicted of a serious felony in this state or of any
offense committed in another jurisdiction which includes all of the elements of
any serious felony, shall receive, in addition to the sentence imposed by the
court for the present offense, a five-year enhancement for each such prior
conviction on charges brought and tried separately. The terms of the present offense and each
enhancement shall run consecutively.”
The jury here found that defendant committed a residential burglary,
which is a serious felony (§ 1192.7, subd. (c)(18)) and that he had a prior
conviction of criminal threats, which was also a serious felony. It would therefore appear that the five-year
enhancement applied to him.
Due
process, however, requires that an accused be advised of the specific charges
against him so he may adequately prepare his defense and not be taken by
surprise by evidence offered at trial. (
1434, 1438; see People v. Tardy
(2003) 112 Cal.App.4th 783, 786.) Here
neither the original information nor the amended information alleged the
section 667, subdivision (a)(1), enhancement.
The original information did not allege that defendant suffered a prior
serious felony of criminal threats. The
amended information alleged the criminal threats prior conviction only as a
strike (§§ 667, subds. (b)-(i), 1170, subds. (a)-(d)).
The People
cite People v. Purata (1996) 42
Cal.App.4th 489, 498, for the proposition the enhancement nevertheless must be
imposed. In Purata, the trial court declined to impose a five-year enhancement
under section 667, subdivision (a)(1), on a prior serious felony conviction,
because the court used the same conviction to qualify as a strike. (Purata,
at p. 492.) The appellate court found
that imposing the enhancement on the prior and using the same prior to qualify
Purata for a Three Strikes sentence was not a “dual use” of the prior. (Id. at
p. 498.) The court therefore said: “Where a person has been convicted of a
serious felony in the current case, and it has been alleged and proved the
person suffered a prior serious felony conviction within the meaning of section
667, subdivision (a)(1), the trial court must impose a consecutive five-year
term for each such prior conviction. The
trial court has no discretion and the sentence is mandatory.” (Ibid.)
In
alleged. The trial court simply refused
to impose it based on a mistaken belief to do so would constitute an improper
dual use of facts. Purata therefore did not concern imposing an enhancement that was
not alleged in the pleading document or proven.
In contrast, no serious felony enhancement allegation was pleaded or
proved here. The only allegations
pleaded were clearly identified as strike allegations. There was no allegation in the information
giving defendant notice that he could be found subject to a five-year
enhancement for a prior serious felony conviction.
The People,
however, also argue that due process can be satisfied if the accusatory
pleading apprises the defendant of the potential for the enhanced penalty and
alleges every fact and circumstance necessary to establish its
applicability. (People v. Thomas (1987) 43 Cal.3d 818, 826; People v. Tardy, supra, 112 Cal.App.4th at p. 787.) Where, for example, the information references
the incorrect penal statute but notifies the defendant of the facts of the
allegation, adequate notice of the enhancement may be found. (See, e.g., People v. Neal (1984) 159 Cal.App.3d 69.)
These general principles are
inapplicable here, because the information did not inform defendant, by
alleging any facts, that the five-year enhancement would be sought. (See People
v. Mancebo (2002) 27 Cal.4th 735.)
There was not a citation to the wrong Penal Code section by
mistake. The enhancement was also not
pleaded by facts without reference to a specific statutory provision. We therefore find that the five-year
enhancement under section 667, subdivision (a)(1), may not be imposed.
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
ALDRICH,
J.
We concur:
KLEIN, P. J.
KITCHING, J.
Cal.3d 531 (Pitchess).
was with another man, the Russian, identified as Ruslan Magomedgadzhiev, who
pleaded the Fifth Amendment at trial.
