P. v. Eversole

Filed 9/28/06 P. v. Eversole CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Melinda M. Reed, Judge.

William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, Louis M. Vasquez and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.

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On June 21, 2005, a jury convicted appellant Robert Eversole of second degree robbery (Pen. Code, §§ 211; 212.5, subd. (b))^[1] and found true an enhancement allegation that in committing that offense appellant personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). On that same date, appellant admitted violating probation in two separate cases; he pled no contest to two counts of the offense commonly known as petty theft with a prior (§ 666) charged in two other cases; and he admitted an enhancement allegation that he had previously served a prison term for a prior felony conviction (§ 667.5, subd. (b)), as alleged in those two cases. The court imposed a prison term of seven years, a restitution fine of $7,000 pursuant to section 1202.4 and a “parole revocation restitution fine“ (parole revocation fine) pursuant to section 1202.45 in the same amount. The court stayed the latter fine pending successful completion of parole. (§ 1202.45.)

On appeal, appellant contends (1) the court erred prejudicially in instructing the jury with CALJIC No. 2.27; (2) portions of the restitution and parole revocation fines were unauthorized; and (3) the abstract of judgment contains a clerical error which should be corrected. We will reduce the fines and order the abstract of judgment corrected as discussed below, and in all other respect affirm.

FACTS

Prosecution Case

Rita Parker testified to the following. She is employed as a “loss prevention agent“ by a Sears store in Visalia. At approximately 4 p.m. on March 23, 2005,^[2] she was monitoring the store’s closed circuit television surveillance system when she saw the following. A man, whom she identified in court as appellant, placed two portable compact disc players and a compact disc case in a backpack. The man then immediately left the store without paying for the items. He left through the door of the store that opens onto Mooney Boulevard. As the foregoing events were occurring, Parker contacted another loss prevention agent, Mike Schiano, by radio, described appellant and told Schiano by what exit appellant had left the store. A video tape, which Parker testified was an “accurate copy of the video [she] watched that afternoon,” was admitted into evidence and played for the jury.

Mike Schiano testified that at approximately 4:05 p.m. on March 23, he received a radio call from Parker that a man had put some compact disc players in a backpack and left the store by the northeast exit. Parker also described the man, indicating, inter alia, that he was wearing a beanie. Schiano walked out that exit, and almost immediately saw a man wearing a beanie and walking a bicycle.

Schiano approached the man, whom he identified in court as appellant, identified himself as a loss prevention agent and said he “would like [the store merchandise] back.” Appellant became “a little upset” and stated he “didn’t take anything.” He then “pulled” a portable compact disc player “out of his shirt”; stated it was “all he had on him, but [Schiano] [could] have it if [he] wanted”; and handed it to Schiano. Schiano said “that’s not the CD player that [he] was talking about,” and asked appellant to empty out his backpack. At that point, appellant started to quickly walk away. Schaino followed and told appellant to stop. The two were approximately 10 feet apart at that point, and appellant “agreed to empty out his backpack as long as [Schiano] stayed where [he] was.”

Appellant removed approximately two “tools” from the backpack, at which point Schiano asked him to remove the rest of the items and started walking closer to appellant. At that point, appellant “turned around,” “pulled a knife out from his pocket” and threatened to “shank” Schiano if he (Schiano) came any closer. Schiano then backed away, and appellant rode off on his bicycle.

City of Visalia Police Officer Michael Stow testified that he arrested appellant on March 24, after seeing appellant riding his bicycle on Mooney Boulevard. Appellant had a backpack on his back. It contained three “tools” but no stolen merchandise.

Defense Case

Appellant testified that on March 23 he was in the Sears store in Visalia when he decided to steal two compact disc players. He took two compact disc players from a rack, and placed them in his backpack, but then changed his mind and removed them from his pack. He then changed his mind again, and put the CD players back in his pack. Shortly thereafter, he “started to leave,” but he heard someone say “ ‘He stuck something in his backpack.’ “ He then left the electronics department, walked into a clothing department and, fearing he would be caught, “ditched” the compact disc players under a clothing rack and left the store. He did not have the compact disc players with him when he left.

Outside the store, a “huge guy” approached appellant, “cornered” him and said,

“ ‘Hey buddy, give me the stuff you took. She got you on camera.’ “ Appellant responded that he “changed his mind” and “didn’t take it.” The man demanded the CD players. Appellant handed the man his CD player, saying, “ ‘I don’t have them. You need a CD player that bad? Here, take mine.’ “

At that point, the man, in a loud voice, demanded to see what was in appellant’s backpack. Appellant told the man to “[t]ake it easy,” and removed “the tools” from the pack. Appellant then “turned the backpack upside down,” in an attempt to demonstrate that the pack, which was open, did not contain any store merchandise. At that point, appellant’s knife “started to fall out of [his] pocket.” Appellant “grabbed” the knife.

The man responded, “[O]kay punk. . . . ‘Don’t make me run you down.’ “ Then, removing a pocket knife from his pocket, the man said, “ ‘I got one of those too.’ “ At that point, appellant “pulled [his] knife”; said, “ ‘stay back’ “; and “walked” away with his bicycle. The man said he was going to call 911. Appellant said, “ ‘Go ahead. I didn’t do a damn thing.’ “

Appellant did not threaten to “shank” the man.

DISCUSSION

CALJIC No. 2.27

CALJIC No. 2.27 states: “You should give the [uncorroborated] testimony of a single witness whatever weight you think it deserves. Testimony concerning any fact by one witness, which you believe, [whose testimony about that fact does not require corroboration] is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends.”

In the instant case, the court gave the version of CALJIC No. 2.27 that included the bracketed phrases, as follows: “You should give the uncorroborated testimony of a single witness whatever weight you think it deserves. Testimony concerning any fact by one witness, which you believe, whose testimony from that fact does not require corroboration is sufficient for the proof of that fact. You should carefully review all the evidence upon which the proof of that fact depends.” (Emphasis added.)

The use note to CALJIC No. 2.27 advises, “Use the first bracketed phrase if corroboration . . . is required . . . .” Relying on this use note, appellant suggests it is error to instruct the jury with the version of CALJIC No. 2.27 which includes references to uncorroborated testimony if no testimony requiring corroboration is presented. He argues, and the People do not dispute, that no such testimony was presented here. Therefore, appellant contends, the court erred in instructing the jury with the version of CALJIC No. 2.27 containing “references to corroboration.” We disagree.^[3]

Appellant’s reliance on the use note to CALJIC No. 2.27 is misplaced. The portion of the note upon which he relies states as follows: “Use the first bracketed phrase if corroboration of a witness’ testimony is required, such as in Penal Code § 1103a (Perjury), 1108 (abortion or enticement for prostitution), 1111 (testimony of accomplice), and 653f (solicitation to commit felony). People v. Stewart [(1983)] 145 Cal.App.3d 967, 975 . . . states it is “ ‘better practice’ to use that phrase. People v. Chavez [(1985)] 39 Cal.3d 823, 831 . . . states that they agree with [Stewart] in this suggested addition where appropriate.”

In People v. Stewart, supra, 145 Cal.App.3d 967, the defendant argued that the court prejudicially erred in instructing the jury pursuant to CALJIC No. 2.27 that the testimony of one witness was sufficient to prove any fact in the case, because the prosecution presented accomplice testimony inculpating the defendant, and therefore giving CALJIC No. 2.27 “created the possibility of . . . [conviction] based solely upon the testimony of the accomplice,” in violation of the principle that accomplice testimony requires corroboration (§ 1111). (Id. at p. 974.) The appellate court rejected this argument, based on the fact the trial court gave other instructions which made unlikely any misunderstanding on the part of the jury of the proper way in which to evaluate accomplice testimony. In dictum, the court added that “under these circumstances,” viz., where testimony requiring corroboration is presented, the “better practice,” which would “serve to alert jurors to the special problems relating to accomplice testimony,” would be to modify the language of the instruction by adding the language italicized in the following quotation: “ ‘Testimony which you believe given by one witness whose testimony does not require corroboration is sufficient for the proof of any fact . . . .’ “ (People v. Stewart, supra, 145 Cal.App.3d at p. 975.)

Thus, Stewart, in dictum endorsed by our Supreme Court in People v. Chavez (1985) 39 Cal.3d 823, indicates that certain language should be added to CALJIC No. 2.27 when testimony requiring corroboration is presented. But neither Stewart nor Chavez suggest that when no such testimony is presented it is error for the court to tell the jury that uncorroborated testimony of a single witness is entitled to whatever weight jurors think it deserves; that such testimony concerning any fact, if believed, is sufficient proof of that fact; and that if proof of a fact depends on the testimony of a single witness, the jury should carefully review all evidence upon which proof of that fact depends. Indeed, CALJIC No. 2.27 was developed specifically to guide triers of fact in the evaluation of uncorroborated testimony. (People v. Turner (1990) 50 Cal.3d 668, 696 [noting that in People v. Rincon-Pineda (1975) 14 Cal.3d 864, the Supreme Court “discussed the instruction as a necessary aid to defendants implicated only by the uncorroborated testimony of a single witness,” and stating that holding in Rincon-Pineda “not limit[ed] to prosecution witnesses”].)

Appellant also argues that the challenged instruction “devalued” his testimony and “put [it] at a lower level than [that of] the prosecution witnesses,” thereby violating appellant’s constitutional rights to “present a defense“ and to due process of law. As best we can determine, he bases this contention, in turn, on the claim that the theory of appellant’s defense, i.e., that he removed the store merchandise from his backpack before he left the store, was based entirely on his uncorroborated testimony, whereas the prosecution case was not based on uncorroborated testimony, and the challenged instruction, he asserts, made the jury’s evaluation of appellant’s testimony subject to a “legally invalid requirement of corroboration” in that it “permit[ed] [the] jury to operate under the misconception” that corroboration of his testimony was “required.” There is no merit to this contention. The challenged instruction did not tell the jury that corroboration was “required.” To the contrary, the instruction told the jury that credible uncorroborated testimony concerning any fact was sufficient for proof of that fact. Thus, the instruction was helpful to appellant. (People v. Stewart, supra, 145 Cal.App.3d at p. 974.) The court did not err instructing the jury with the modified version of CALJIC No. 2.27.

Restitution and Parole Revocation Fines

As indicated above, the sentence imposed in the instant case covered, in addition to the instant robbery conviction, four other cases, in each of which appellant suffered a single felony conviction. Those cases are Tulare County Superior Court case Nos. 118203 (case No. 1), 118790 (case No. 2), 141249 (case No. 3) and 144598 (case No. 4). In 2004, the court granted probation in case Nos. 1 and 2 and imposed, in each case, a $200 restitution fine and a parole revocation fine in the same amount.^[4] In sentencing appellant in 2005, the court, inter alia, revoked probation in case Nos. 1 and 2 and, as is indicated above, imposed a restitution fine and a parole revocation fine, each in the amount of $7,000, based on all five cases. The court computed the restitution fine pursuant to section 1202.4, subdivision (b)(2), which allows the court to “determine the amount of the fine as the product of two hundred dollars ($200) multiplied by the number of years of imprisonment the defendant is ordered to serve, multiplied by the number of felony counts of which the defendant is convicted.”

Appellant contends, and the People concede, that as to each of the $7,000 fines, the portion based on case Nos. 1 and 2 must be stricken. We agree. (People v. Chambers (1998) 65 Cal.App.4th 819, 823 [where court imposed § 1202.4 restitution fine and granted probation and later imposed second such fine following probation revocation, first fine remained in effect following probation revocation and second fine was unauthorized]; People v. Arata (2004) 118 Cal.App.4th 195, 203 [because parole revocation fine must be same amount of restitution fine, where restitution fine is stricken parole revocation fine must also be stricken].)

As appellant contends and the People do not dispute, we compute the correct amount of each fine as follows. We subtract from the 7-year sentence the portion attributable to case Nos. 1 and 2, viz., 16 months, leaving a remainder of 5.67 years; we multiply that figure by $200, for a product of $1,134; and we multiply that figure by three, the number of felonies in the instant case and case Nos. 3 and 4, for a total of $3,402.

Correction of Abstract of Judgment

Appellant was convicted in case No. 2 of grand theft, in violation of section 487, subdivision (a). The abstract of judgment incorrectly states appellant was convicted in that case of grand theft in violation of section “497(A).” The parties agree that this court should order that abstract be amended to reflect the correct code section. We will do so. (People v. Mitchell (2001) 26 Cal.4th 181, 185, 188 [appellate court has inherent power to direct trial court to correct clerical errors in abstract of judgment].)

DISPOSITION

The portion of the restitution fine based on case Nos. 1 and 2 is stricken. The portion of the parole revocation based on case Nos. 1 and 2 is also stricken. Accordingly, the restitution fine is reduced to $3,402 and the parole revocation fine is reduced to the same amount. The trial court is directed to prepare an amended abstract of judgment reflecting these changes and the correct code section of appellant’s conviction in case No. 2, viz., section 487, subdivision (a), and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

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^* Before Cornell, Acting P.J., Gomes, J., and Hill, J.

^[1] Except as otherwise indicated, all statutory references are to the Penal Code.

^[2] Further references to dates of events are to dates in 2005.

^[3] The People argue that appellant neither objected to the instruction as given nor asked that it be modified and that therefore appellant’s challenge to the instruction is waived. We assume without deciding that appellant’s challenge to the instruction is cognizable on this appeal.

^[4] The parole revocation fine “shall [be] . . . the same amount as [the Section 1202.4 fine].” (§ 1202.45.)