P. v. Campanella
Filed 1/8/13 P.
v. Campanella CA2/2
OFFICIAL REPORTS
California Rules of Court, rule
8.1115(a), prohibits courts and parties from citing or relying on opinions not
certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
JENNIE MARIE
CAMPANELLA,
Defendant and Appellant.
B238565
(Los Angeles County
Super. Ct. No.
PA070305)
APPEAL
from a judgment of the Superior Court of
County. Dalila C.
Lyons, Judge. Affirmed with
modifications.
Law Offices of
Pamela J. Voich and Pamela J. Voich for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Eric E. Reynolds and
Rene Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
* *
* * * *
A jury convicted appellant Jennie
Marie Campanella of attempted
second-degree robbery (Pen. Code, §§ 211, 664, count 1).
suffered a prior robbery conviction within the meaning of the “Three Strikesâ€
law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and section 667,
subdivision (a)(1). The trial court
sentenced appellant to seven years and eight months in
of 16 months doubled pursuant to the Three Strikes law, plus a five-year
serious felony enhancement (§ 667, subd. (a)(1)). Appellant was awarded 263 days of presentence
credit consisting of 229 days of actual custody credit and 34 days of conduct
credit.
Appellant
contends the trial court had a sua sponte
duty to instruct the jury on a claim-of-right defense; the trial court failed
to advised her properly of her constitutional rights before accepting her
admission on the prior conviction allegation that served as the basis for the
section 667, subdivision (a)(1) sentence enhancement; and the judgment must be
modified to reflect 343 days of presentence custody credit.
We
order the abstract of judgment modified to reflect 343 days of presentence
custody credit. In all other respects,
the judgment is affirmed.
Prosecution Evidence
Shortly before 2:00 p.m. on April 3, 2011, Sharon Meyer was shopping at a 99 Cent Store on Sepulveda Boulevard in Los Angeles. Meyer used a shopping cart
and placed her purse containing her wallet and cell phone in the child seat
portion of the cart. Appellant who was
carrying a shopping basket walked back and forth three or four times before
knocking over a box of items in the same aisle where Meyer was shopping. Appellant then reached into Meyer’s cart,
grabbed her purse and attempted to run away.
Meyer immediately grabbed the purse and struggled with appellant. Appellant hit Meyer with the shopping basket
and yelled at her to let the purse go.
As Meyer and appellant struggled over the purse, Maria Delrosario Molina
Delgadillo who was shopping nearby was struck and knocked to the floor. Meyer screamed and a security guard tackled
appellant. Appellant lost hold of
Meyer’s purse and fought with the security guard attempting to escape. Appellant was subdued and restrained by the
security guard until the police arrived.
Defense Evidence
No
evidence was presented on behalf of the defense.
DISCUSSSION
I. The Trial Court Properly Instructed
the Jury on the Applicable Law
Appellant contends that the trial court committed reversible error
by failing to instruct the jury on the claim-of-right defense. Appellant did not request the instruction
(CALCRIM No. 1863)
name="_ftnref2" title="">[2] but argues that
claim-of-right was “the main theory of the defense†and the trial court had a
sua sponte duty to give it.
Errors
in jury instructions are questions of law which we review de novo. (People
v. Russell (2006) 144 Cal.App.4th 1415, 1424.)
In
criminal cases, “‘“even in the absence of a request, the trial court must
instruct on the general principles of law relevant to the issues raised by the
evidence. [Citations.] The general principles of law governing the
case are those principles closely and openly connected with the facts before
the court, and which are necessary for the jury’s understanding of the
case.†[Citation.]’†(People
v. Breverman (1998) 19 Cal.4th 142, 154.)
This duty to instruct, sua sponte, on general principles closely and
openly connected with the facts encompasses an obligation to instruct on
defenses that are supported by the evidence.
(People v. Montoya (1994) 7
Cal.4th 1027, 1047; see also People v.
Breverman, supra, at p. 157.)
“The
claim-of-right defense provides that a defendant’s good faith belief, even if
mistakenly held, that he has a right or claim to property he takes from another
negates the felonious intent necessary for conviction of theft or robbery. At common law, a claim of right was
recognized as a defense to larceny because it was deemed to negate the animus
furandi, or intent to steal, of that offense. (See 4 Blackstone, Commentaries 230
(Blackstone).)†(People v. Tufunga (1999) 21 Cal.4th 935, 938.) “‘“It has long been the rule in this state
and generally throughout the country that a bona fide belief, even though mistakenly
held, that one has a right or claim to the property negates felonious
intent. [Citations.] A belief that the property taken belongs to
the taker . . . is sufficient to preclude felonious intent. Felonious intent exists only if the actor
intends to take the property of another without believing in good faith that he
has a right or claim to it.â€â€™â€ (
‘“[A]
trial court is not required to instruct on a claim-of-right defense unless
there is evidence to support an inference that appellant acted with a
subjective belief he or she had a lawful claim on the property.’ [Citation.]
Whether or not the evidence provides the necessary support for drawing
that particular inference is a question of law.
[Citation.] Although a trial
court should not measure the substantiality of the evidence by undertaking to
weigh the credibility of the witnesses, the court need not give the requested
instruction where the supporting evidence is minimal and
insubstantial. . . .
[Citations.]†(
1044, 1145, fn. omitted.)
Applying
the foregoing rules, we conclude there was no substantial evidence supporting
the inference that appellant acted with the requisite bona fide belief. Appellant reached into the victim’s shopping
cart, grabbed the purse and tried to run away.
She struggled with the victim for control of the purse. When forced to release her hold on the purse
by the security guard she struggled with the security guard to flee from the
store.
In
claim-of-right cases there is usually some facially legitimate reason for
asserting a good faith belief in the right to another’s property. (See People
v. Marsh (1962) 58 Cal.2d 732, 737 [defendants’ belief in the curative
power of their electrical apparatus was based on information from doctors and
scientists]; People v. Russell, supra,
144 Cal.App.4th at pp. 1429–1431 [defendant testified he believed motorcycle
had been abandoned, testimony supported by cycle’s condition and location, and
by defendant’s non-furtive conduct].)
Defense counsel argued to the jury that appellant acted in an irrational
manner but there was no evidence that appellant had taken the purse in the
belief that it was her own and her actions in doing so were inconsistent with a
claim-of-right defense.
The trial court had no sua sponte duty to give such an instruction
because there was no substantial evidence to show that appellant reasonably
believed that she had a right to the property.
(People v. Felix (2001) 92
Cal.App.4th 905, 911.) Hence, the trial
court did not err in failing to instruct on claim-of-right.
Having
examined the record, we are persuaded that even if the trial court erred in
failing to give a claim-of-right instruction, that error was harmless under any
standard of review. (Cf.
18, 24; People v. Watson (1956) 46
Cal.2d 818, 836.) The victim’s testimony
was uncontroverted. Given the state of
the trial evidence and the fact that the jury returned its verdict after 37
minutes of deliberation, we are convinced that had a claim-of-right instruction
been given the result of appellant’s trial would have been the same.
II. Appellant’s
Prior Conviction Admission
Pursuant to the
Three Strikes law (§§ 667, subds. (b)-(i) & 1170.12, subds. (a)-(d)) and section
667, subdivision (a)(1), the prosecution alleged that appellant suffered a
prior conviction for robbery in Superior Court case No. LA052781. Following a jury trial on the substantive
offense, appellant admitted that she suffered the robbery conviction in case
No. LA052781. On appeal, appellant
contends that this admission was not voluntary and intelligent because,
although the trial court advised her of and obtained her waiver of her
constitutional right to a jury trial, the trial court failed to advise her of
and obtain her waiver of her constitutional rights to remain silent and to
confront her accusers as required by In
re Yurko (1974) 10 Cal.3d 857. We
disagree.
On
August 25, 2011, after the close of the evidence, but before the case was given
to the jury, the trial court inquired of defense counsel what appellant wanted
to do with regard to the prior conviction.
The following exchange took place:
“MR.
RICO [DEFENSE COUNSEL]: If there is a
guilty verdict, [appellant] will waive jury for the issue—for the trial on her
priors.
“THE
COURT: Okay. Very well.
Miss Campanella [appellant], do you understand that if the jury—and do
you agree that if the jury comes back with a guilty verdict, do you agree to
waive the jury for purposes of prior convictions?
“[APPELLANT]: Yes, I waive that.â€
Following
the jury’s verdict, the jury was excused and appellant admitted her prior
robbery conviction in case No. LA052781 as follows:
“MR.
RICO: All right. Your honor, there is going to be a
stipulation.
“THE
COURT: To the prior.
“MR.
RICO: To the prior.
“THE
COURT: All right. Mr. Bartos [prosecutor], can you please take
the stipulation.
“MR.
BARTOS: Certainly. [Appellant], in case [No.] PA070305, it is
alleged pursuant to Penal Code 1170.12 (a) through (d) and Penal Code section
two—I’m sorry, 667(b) through (i), as to count 1, that you suffered the prior
conviction in case PA—I’m sorry, [case No.] LA052781 for violation of Penal
Code section 211, robbery with a conviction date of August 21, 2006, in the
County of Los Angeles. Do you admit that
prior conviction?
“[APPELLANT]: Yes.
“MR.
BARTOS: Does the court wish to inquire
further?
“THE
COURT: No. Do you have any questions, Ma’am, regarding
the prior convictions stipulation?
“[APPELLANT]: No.
“THE
COURT: Okay. Thank you.
Nothing else. Okay. Very well.
Counsel join in the stipulation?
“MR.
RICO: Yes.
“THE
COURT: Okay. The court accepts the stipulation as to the
prior conviction of the 211 on [case No.] LA052781.â€
“[B]efore
accepting a criminal defendant’s admission of a prior conviction, the trial
court must advise the defendant and obtain waivers of (1) the right to a trial
to determine the fact of the prior conviction, (2) the right to remain silent,
and (3) the right to confront adverse witnesses. (In re
Yurko (1974) 10 Cal.3d 857, 863.)
Proper advisement and waivers of these rights in the record establish a
defendant’s voluntary and intelligent admission of the prior conviction. [Citations.]â€
(People v. Mosby (2004) 33
Cal.4th 353, 356.)
Not
all defective advisements require reversal.
In People v. Mosby, supra, 33
Cal.4th 353, the California Supreme Court drew a distinction between silent
record cases—those cases that show no express advisement and waiver of
constitutional rights, and incomplete advisement cases—those cases in which a
defendant waives his constitutional rights after being advised of his right to
trial on the prior conviction allegation, but not of the associated
witnesses. (Id. at pp. 361–364.) In
silent record cases, a reviewing court cannot infer that the defendant
knowingly and intelligently waived his rights to trial, to remain silent, and
to confront witnesses. (
not required “[w]hen, immediately after a jury verdict of guilty, a defendant
admits a prior conviction after being advised of and waiving only the right to
trial†but “the totality of circumstances surrounding the admission†supports
the conclusion that the admission was voluntary and intelligent. (Id.
at p. 356.)
Appellant
contends that because no advisement was given when she made her admission this
case should be treated as a classic “silent-record†case. But Mosby
made it clear that “[t]ruly silent-record cases are those that show no
express advisement or waiver of the Boykin-Tahl
rights before a defendant’s admission of a prior conviction.†(People
v. Mosby, supra, 33 Cal.4th at p.
361.)
The
circumstances of the Mosby case are materially indistinguishable from
those present here, and appellant’s advisement cannot be meaningfully
distinguished from the incomplete advisement found in Mosby. In Mosby, the
defendant was advised of his right to a jury trial on the prior conviction
allegation immediately after the jury found him guilty of his substantive
offense of selling cocaine. (
The defendant waived that right and then admitted the recidivist
allegation. “On appeal, defendant
contended that the trial court committed reversible error by not telling him of
his rights to remain silent and confront witnesses.†(Ibid.) But the Mosby court rejected that
contention: “Here, defendant, who was
represented by counsel, had just undergone a jury trial at which he did
not testify, although his codefendant did.
Thus, he not only would have known of, but had just exercised, his right
to remain silent at trial, forcing the prosecution to prove he had sold
cocaine. And, because he had, through
counsel, confronted witnesses at that immediately concluded trial, he would
have understood that at a trial he had the right of confrontation.†(Ibid.)
Appellant
also expressly waived her right to a jury trial on the prior conviction
allegations. As in Mosby,
appellant was not expressly advised of her privilege against self-incrimination
or her right to confront and cross-examine witnesses as to the
allegations. However, appellant had just
participated in a trial in which she exercised each of those rights. Appellant’s defense counsel cross-examined
Ms. Meyer, Ms. Delgadillo, and the two police officers who testified. Moreover, defense counsel argued in closing,
in appellant’s presence, that “Miss Campanella exercised her constitutional
right to not testify.†(See
examine the record of ‘the entire proceeding’ to assess whether the defendant’s
admission of the prior conviction was intelligent and voluntary in light of the
totality of circumstancesâ€].) The court
provided the same admonition as part of the jury instructions before the jury
went into deliberations on August 25, 2011, the day appellant admitted her
prior conviction. Those statements,
coupled with appellant’s decision not to testify during the trial on the
attempted robbery, amount to compelling evidence that she was aware of this
right.
The
cases upon which appellant relies are inapposite. In People
v. Campbell (1999) 76 Cal.App.4th 305, there were no admonitions
with respect to any of the applicable constitutional rights. The appellate court rejected the contention
that it could infer from defendant’s past experience and familiarity with the
criminal justice system that he intelligently and voluntarily waived his
rights. (Id. at p. 310.)
Similarly,
in People v. Johnson (1993) 15
Cal.App.4th 169, the record was silent as to any waiver by defendant of any
right. The trial court did not give the
defendant an opportunity to answer the question whether he waived jury before
it asked him another question, whether he was convicted. The court asked: ‘“All I want to know is whether you were
convicted or whether or not you want a jury trial; were you convicted?’†(Id.
at p. 177.) Accordingly, the court could
not find that he voluntarily and intelligently waived his Boykin-Tahl
rights with respect to the prior conviction.
(People v. Johnson, supra, at
p. 178.) Here, appellant unequivocally
waived her right to jury trial on the record before admitting the prior
conviction.
Furthermore,
the period of time that elapsed between the advisement and admission was less
than one hour while the jury deliberated.
There is no basis from which to infer that appellant did not understand
or was unaware of her right to remain silent, or to confront her accusers. Taking the totality of the circumstances into
consideration, and noting the factual similarities to Mosby, we are satisfied that appellant’s admissions were voluntarily
and intelligently made.
III. Award
of Presentence Custody Credits
Appellant
contends that the trial court erred in impliedly finding that she was convicted
of a violent felony and limiting her presentence conduct credits to a maximum
of 15 percent.
The
People do not dispute the point but argue that the issue must be returned to
the trial court for determination. (§
1237.1.) Section 1237.1, however, “does
not require a motion be filed in the trial court as a precondition to
litigating the amount of presentence credits when there are other issues raised
on direct appeal.†(People v. Acosta (1996) 48 Cal.App.4th 411, 420; see
1101.)
Appellant
has demonstrated that she was not convicted of a violent felony and is entitled
to full conduct credits. While section
667.5, subdivision (c) lists robbery as a violent felony (see subd. (c)(9)),
the subject crime of attempted robbery is excluded from the list. (People
v. Acosta, supra, 48 Cal.App.4th at p. 420.) Justice and judicial economy require that we
correct the sentencing error. (
Here,
appellant served a total of 229 days in custody from the date of her arrest to
the date of her sentencing. She thus
earned 114 days of conduct credit under section 4019, rather than the 34
days awarded by the trial court pursuant to section 2933.1.
The judgment is modified to reflect
that appellant is awarded 343 days presentence credit consisting of 229 days
actual custody credit and 114 days of conduct credit. The clerk of the superior court is ordered to
prepare an amended abstract of judgment and to forward a certified copy to the
affirmed.
NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS.
_____________________,
J.
DOI TODD
We concur:
____________________________, P. J.
BOREN
____________________________,
J.
CHAVEZ
unless otherwise stated.
part: “If the
defendant obtained property under a claim of right, (he/she) did not have the
intent required for the crime of (theft/ [or] robbery). [¶]
The defendant obtained property under a claim of right if (he/she)
believed in good faith that (he/she) had a right to the specific property or a
specific amount of money, and (he/she) openly took it. [¶] In
deciding whether the defendant believed that (he/she) had a right to the
property and whether (he/she) held that belief in good faith, consider all the
facts known to (him/her) at the time (he/she) obtained the property, along with
all the other evidence in the case. The
defendant may hold a belief in good faith even if the belief is mistaken or
unreasonable. But if the defendant was
aware of facts that made that belief completely unreasonable, you may conclude
that the belief was not held in good faith.
[¶] [The claim-of-right defense
does not apply if the defendant attempted to conceal the taking at the time it
occurred or after the taking was discovered.]
[¶] . . . [¶] If
you have a reasonable doubt about whether the defendant had the intent required
for (theft/ [or] robbery), you must find (him/her) not guilty of
_________________
