P. v. Landaverde
Filed 5/2/13 P.
v. Landaverde CA2/8
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 This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115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 EIGHT
THE PEOPLE,
Plaintiff and Respondent,
v.
JESSE SOLIS
LANDAVERDE,
Defendant and Appellant.
B241431
(Los Angeles County
Super. Ct. No.
YA082395)
APPEAL
from a judgment of the Superior Court of
County. Eric C. Taylor, Judge. Affirmed as modified, and remanded with
directions.
Waldemar D.
Halka, 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, Mary Sanchez and Rene
Judkiewicz, Deputy Attorneys General, for Plaintiff and Respondent.
__________________________
Defendant
Jesse Solis Landaverde appeals from his conviction of
robbery and kidnapping for carjacking.
He contends: (1) allowing a
uniformed officer to stand next to defendant while he testified was prejudicial
error; (2) the jury was not properly instructed on a kidnapping special
circumstance attached to the oral copulation charge (Pen. Code, § 667.61,
subd. (a)); and (3) the life sentence imposed on the kidnapping for carjacking
conviction was an unauthorized sentence.
stay the sentence on the kidnapping for carjacking conviction, but otherwise
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant’s
contentions make a detailed recitation of the facts unnecessary. It is sufficient to state that, viewed in
accordance with the usual rules on appeal (People
v. Zamudio (2008) 43 Cal.4th 327, 357-358), the evidence established
that at about 10:00 a.m. on December 28, 2007, defendant accosted the
victim at knife point in a parking lot as she was leaving her car to go into
her place of business. After the victim
complied with defendant’s demand that she give him her keys and purse, the
defendant snatched a necklace from her
in the driver’s seat of her car and forced her to orally copulate him while he
stood next to the open driver’s side car door.
At defendant’s instruction, the victim got into the back seat of her
car. Once she had done so, defendant
drove the car out of the parking lot.
The victim was eventually able to open the rear passenger door and
escape. Police arrived within minutes of
a call to 911. They brought the victim
to a hospital where she underwent a sexual assault examination during which DNA
from an unknown male was collected from her person. The victim’s car was recovered about two
weeks later; her purse was in it but her wallet, money and cell phone were
missing.
More than four
years later defendant’s DNA was matched with the DNA recovered from the
victim. He was charged with forcible
oral copulation (count 1), second degree robbery (count 2), carjacking (count
3) and kidnapping for carjacking (count 4).
Enhancements for personal use of a deadly weapon (§ 12022,
subd. (b)(1)) were alleged as to all counts; as to count 1, a
section 12022.3, subdivision (a) deadly weapon use enhancement and a
section 667.61, subdivision (e)(1) kidnapping special circumstance were also
alleged.
At trial, the
victim positively identified defendant as her assailant. She had been unable to positively identify
defendant from a photographic lineup and at the preliminary hearing she had
testified that he “resembled†her attacker.
An expert testified that defendant’s DNA was compared to the unknown
male’s DNA collected during the sexual assault examination. Defendant could not be excluded as the
contributor of that DNA. Defendant was Hispanic
and the probability of finding a random unrelated Southwestern Hispanic who
could not be excluded was one in 409,800; the probability of finding a random
unrelated Southeastern Hispanic was one in 460,200. The odds increased for unrelated
African-Americans and Caucasians, but decreased for unrelated Asians. Defendant testified that he was not the
person who assaulted the victim; he maintained he had never seen her before
these criminal proceedings.
The jury convicted
defendant on all counts and found true the gun use enhancements and the
kidnapping special circumstance.
Defendant was sentenced to a total of 27 years to life in prison
comprised of 25 years to life on count 1 (forcible oral copulation) based on
the deadly weapon use and kidnapping special circumstances (§ 667.61, subd.
(e)(1) & (3)), plus a consecutive two-year low term on count 2 (robbery),
plus a consecutive life with the possibility of parole term on count 4
(kidnapping for carjacking). The trial
court dismissed count 3 (carjacking) in the interest of justice pursuant to
section 1385. Defendant timely
appealed.
DISCUSSION
The Trial Court’s Failure to State Reasons For Placing
a Deputy Next to Defendant While He Testified Was an Abuse of Discretion, But
Harmless
Defendant
contends it was an abuse of discretion for the trial court to maintain a
general policy of having a deputy stand next to a testifying criminal
defendant, rather than deciding whether such a security measure is necessary on
a case-by-case basis. We agree that adhering to such a general policy without
articulating reasons for its application in a specific case is an abuse of
discretion, but find the error harmless under the circumstances.
We
review for abuse of discretion the trial court’s exercise of its broad powers
to maintain courtroom security. (
51 Cal.4th 733, 741 (Hernandez);
People v. Stevens (2009)
47 Cal.4th 625, 632 (Stevens).) Some extraordinary security practices – e.g.
visible physical restraints, prison clothing – have such an inordinate risk of
infringing on a criminal defendant’s right to a fair trial that they must be
justified by a showing of manifest need sufficient to overcome the risk of
prejudice. (Stevens, at p. 632.)
The presence of armed guards is not such a practice. “[A] deputy’s presence at the witness stand
during a defendant’s testimony is not inherently prejudicial.†(Id.
at p. 638.) “Unless they are
present in unreasonable numbers, [the presence of armed guards] need not be
justified by the court or the prosecutor.â€
(People v. Duran (1976)
16 Cal.3d 282, 291, fn. 8.)
This is consistent with Holbrook
v. Flynn (1986) 475 U.S. 560, 568-569, in which the United States
Supreme Court held that the “conspicuous, or at least noticeable, deployment of
security personnel in a courtroom during trial†is not “the sort of inherently
prejudicial practice that, like shackling, should be permitted only where
justified by an essential interest specific to each trial.â€
In
not inherently prejudicial, the stationing of an armed guard next to a
testifying criminal defendant is not immune from the trial court’s duty to
“exercise its own discretion to determine whether a given security measure is
appropriate on a case-by-case basis.
[Citations.] . . . The trial court should state its reasons for
stationing a guard at or near the witness stand and explain on the record why
the need for this security measure outweighs potential prejudice to the
testifying defendant. In addition,
although we impose no sua sponte duty for it to do so, the court should
consider, upon request, giving a cautionary instruction, either at the time of
the defendant’s testimony or with closing instructions, telling the jury to
disregard security measures related to the defendant’s custodial status. [Citation.]â€
(Stevens, supra, 47 Cal.4th at p. 642.)
In
page 736, our Supreme Court recently held that it is an abuse of
discretion to defer to a general policy of stationing a deputy at the witness
stand during a criminal defendant’s testimony without articulating a
case-specific reason why it is a necessary security measure. However, the Hernandez court found the error harmless under People v. Watson (1956) 46 Cal.2d 818, reasoning that the
defendant wore street clothes, did not enter the court room through a different
door and, other than the deputy’s presence, the jury had little indication that
defendant was in protective custody.
Additionally, nothing in the record in that case suggested that the
deputy’s demeanor was anything other than respectful and appropriate. (Hernandez,
at p. 746.)
Here,
the trial court and defense counsel engaged in the following colloquy after
defendant announced that he was going to testify:
“THE COURT: . . . When there is somebody
in custody, the bailiff stands with the defendant at the stand. Would you like a comment on that? Do you think it’s required? There’s a case . . . that discussed
what we are supposed to do. I can look
it up, but the bailiff will be standing there. [¶]
[DEFENSE COUNSEL]: I
understand. For purposes of the record
we would object because it’s his testimony and it makes him appear scary. I will submit. [¶]
THE COURT: Okay. I could tell them to ignore the bailiff but,
again, that highlights the fact that there’s a bailiff standing there. [¶]
[DEFENSE COUNSEL]: Whatever your
practice is is fine with me. [¶] THE COURT:
Any objection [to] my saying nothing?
[¶] [DEFENSE COUNSEL]: Am I objecting – [¶] THE COURT:
Is there any objection to my saying nothing with respect to the bailiff,
People? [¶] [THE PROSECUTOR]: Submitted.â€
Immediately following this discussion, the
defendant was brought to the stand outside the presence of the jury. After the jury was re-seated and the
prosecutor announced that the People were resting their case, the defendant
testified. There is no reason to doubt
that the trial court followed through with its stated intention to have the
bailiff “stand with the defendant†during his testimony.
From the
exchange between the court and counsel, it appears that the trial court had a
general policy of having the bailiff stand next to a testifying criminal
defendant. Although not inherently
prejudicial under Stevens,
court to rely solely on such a policy without articulating why such a security
measure was necessary in this case. The
trial court’s solicitation of comments from
counsel on the policy was not sufficient to satisfy the
case-specific reasons for following the general policy.
Nevertheless, we
find the error harmless under the Watson standard
because it is not reasonably probable that the defendant would have obtained a
more favorable result absent the error.
The defendant was escorted to and from the witness stand outside the
presence of the jury; nothing suggests that he was not in street clothes. Further, nothing in the record suggests the
bailiff was anything other than respectful and appropriate. Nor was the case close on the facts. Although unable to identify defendant from a
photographic lineup, at the preliminary
hearing the victim said defendant resembled her attacker, and she
positively identified defendant at trial.
DNA evidence corroborated the victim’s identification. Under these circumstances, defendant has
failed to establish prejudice from the error.
B.
The Trial Court Correctly Instructed on the Kidnapping
Special Circumstance
On
count 1 (forcible oral copulation), defendant was charged with a kidnapping
“special†circumstance under the “One Strike†law which establishes increased
punishment for certain sex offenders.
(See § 667.61, subd. (a), (c)(7) & (e)(1).) Defendant
challenges the following instruction given pursuant to CALCRIM No. 3179
regarding that special circumstance:
“If you find the
defendant guilty of the crime charged in Count 1 [forcible oral copulation],
you must then decide whether, for each crime, the People have proved the
additional allegation that the defendant kidnapped [the victim]. . . . [¶] To
decide whether the defendant kidnapped [the victim], please refer to the
separate instructions that I have given you on kidnapping for carjacking. You must apply those instructions when you
decide whether the People have proved this additional allegation. [¶]
The People have the burden of proving each allegation beyond a
reasonable doubt. If the People have not
met this burden, you must find that the allegation has not been proved.â€
He contends the instruction was incorrect
because it did not instruct that the kidnapping “had to be committed for the
purpose of committing the oral copulation and/or that there had to be a nexus
between the two crimes in that defendant committed the sex offense during or in
the commission of kidnapping.†That is
not the law. A virtually identical
contention was recently rejected by the court in People v. Luna (2012) 209 Cal.App.4th
460 (Luna).
that case persuasive and adopt it here.
Section 667.61
“was enacted to ensure that serious sexual offenders receive long prison
sentences regardless whether they have any prior criminal convictions. [Citation.]â€
(Luna, supra,
209 Cal.App.4th at p. 465.)
Subdivisions (a) and (c)(7) of the statute impose a 25-year-to-life
sentence on any person convicted of forcible oral copulation “under
. . . two or more of the circumstances specified in subdivision
(e) . . . .â€
Relevant here is subdivision (e)(1), which identifies the following
special circumstance:
“. . . the defendant kidnapped the victim of the present
offense in violation of†section 209.5 (kidnapping during commission of
carjacking).
title="">[5]
The defendant in
Luna argued that imposition of the
indeterminate term under section 667.61, subdivision (e)(1) required the
jury to find he kidnapped the victim with the intent to rape her and that
CALCRIM No. 3179 was inadequate because it did not require the jury to
make the specific intent finding. (
p. 464.) The Luna court held that neither the plain language nor legislative
history of section 667.61, subdivision (e)(1) required that the kidnapping have
been for the intent or purpose of carrying out the sex offense. (Id.
at p. 466.) First, the court
reasoned that other subparts of subdivision (e) expressly require that the
defendant commit the present offense “in the commission of†some other act or
commit some other act “during the commission of the present offense,†whereas
subdivision (e)(1) has no such requirement.
“This difference in language demonstrates the Legislature knew how to
require a relationship or nexus between the sex offense and the circumstance
identified in section 667.61, subdivision (e) when it wanted to create
one. If the Legislature had intended to
draft section 667.61(e)(1) to mean the defendant must have kidnapped the victim
with the intent to commit a sex offense against the victim, the Legislature
could and would have done so.†(
history of section 667.61, subdivision (e)(1) and found it supported its
interpretation of the statute. (
section 667.61, subdivision (e)(1) which required kidnapping with the intent
of committing a sex crime never made it into the enacted version of the
statute. (Id. at p. 471.) The
court in Luna concluded: “It is reasonable to conclude the Legislature
determined a defendant who kidnaps the victim, an act that consistently places
the victim in a position of elevated vulnerability, and commits a sexual
offense against the same victim, should meet the requirements of a serious and
dangerous sex offender under section 667.61.
The defendant is a serious and dangerous sex offender whose actions
place the victim in a position of elevated vulnerability. If the defendant targets the same victim for
multiple dangerous and serious felonies, heightened punishment at the time of
sentencing comports with legislative intent.â€
(Id. at p. 471.)
We
agree with the analysis of the Luna court. Nothing in the plain language of the
section 667.61, subdivision (e)(1) requires that the kidnapping had to be
for the purpose of committing the sex offense, in this case oral copulation;
the legislative history and purpose of the statue comports with that
conclusion. Accordingly, the trial
court’s instructions were correct.
The Sentence Imposed on the Kidnapping During a
Carjacking Conviction Was Unauthorized
Defendant contends and the
People concede that the life with the possibility of parole sentence imposed on
count 4 was an unauthorized sentence. We
agree.
When only the minimum number
of special circumstances required for the enhanced punishment under
section 667.61, subdivision (a) are pled and proved, section 667.61,
subdivision (f) requires sentence to be imposed only according to that statute
to the exclusion of any other provision of law, unless another provision
provides for a greater punishment. Here,
only the minimum two special circumstances for imposition of the
25-year-to-life punishment – use of a deadly weapon and kidnapping – were pled
and proved. Therefore, defendant was
required to be sentenced under section 667.61, subdivision (a) only and
could not also be sentenced for the kidnapping for carjacking (count 4). (See People
v. Rodriguez (2012) 207 Cal.App.4th 204, 215.)
Defendant and the People
disagree as to the proper remedy for this sentencing error. Defendant argues the judgment on count 4 must
be reversed and the matter remanded to the trial court for resentencing. The People request that we correct the
error. We exercise our authority to
modify the judgment by staying the sentence imposed on count 4. (Cf. People
v. Byrd (2011) 194 Cal.App.4th 88, 101-102.)
We
modify the judgment by staying the sentence imposed on count 4 under
section 667.61, subdivision (f). In
all other respects the judgment is affirmed.
The matter is remanded to the trial court with directions that the trial
court prepare and forward to the Department
of Corrections and Rehabilitation a certified copy of an amended abstract
of judgment.
RUBIN,
J.
WE CONCUR:
BIGELOW, P. J.
FLIER, J.
future undesignated statutory references are to the Penal Code.
record does not indicate exactly where the bailiff was positioned during
defendant’s testimony and defendant does not contend the bailiff did not
maintain a respectful distance or that he behaved in a manner that distracted
from, or cast doubt on defendant’s testimony.
