P. v. Foletti

Filed 6/1/07 P. v. Foletti CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEALS from a judgment of the Superior Court of Tuolumne County. Eleanor Provost, Judge.

Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Stan Cross, Acting Senior Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, J. Robert Jibson and Judy Kaida, Deputy Attorneys General, for Plaintiff and Appellant.

INTRODUCTION

Kenneth Theodore Foletti was convicted after jury trial of possessing a deadly weapon (a billy club); he admitted two prior strikes and a prior prison term. (Pen. Code,  12021, subd. (a)(1); 667, subds. (b)-(i); 667.5.)^[1] The trial court exercised Romero^[2]discretion and dismissed both of the strikes pursuant to section 1385 and sentenced Foletti to an aggregate term of four years imprisonment.

The People appealed, challenging the trial courts decision to dismiss the strikes. Foletti cross-appealed, arguing that his trial counsel was ineffective and that a unanimity instruction should have been given sua sponte. We conclude that it is necessary to remand for resentencing because the trial court failed to state in the minute order the reasons supporting its decision to dismiss the prior strikes. Section 1385, subdivision (a) provides that [t]he reasons for the dismissal must be set forth in an order entered upon the minutes. The provision is mandatory. (People v. Humphrey (1997) 58 Cal.App.4th 809, 811 (Humphrey).) The rest of the issues raised by the parties fail.

FACTS

On March 12, 2006, law enforcement officers executed a probation search of a residence in Tuolumne County. Folettis Camero was parked in the driveway of the residence. Foletti was standing at the top of the driveway, restraining a dog. As two police officers walked past the vehicle, they saw two knives and two wooden objects in the front passenger area of the vehicle. The wooden items consisted of a short baseball bat (the bat) and a 26-inch-long, round piece of wood (the stick). The two wooden objects were placed on the Cameros hood. Foletti yelled, Hey, those are my bone crushers. Leave them alone. Angels Camp Police Officer Steve Poortinga testified that he did not believe that the knives had been removed from the Camero when Foletti made the comment about bone crushers.

DISCUSSION

I. Issue Presented in the Peoples Appeal: Failure to comply with procedural requirement of section 1385, subdivision (a), requires remand for resentencing.

A. Facts

Foletti was 47 years old when he was sentenced for the current offense. He has a lengthy criminal history, dating back to 1980. He admitted two prior strikes: a burglary conviction in 1980 and a terrorist threat conviction in 1997. He also suffered a felony drug conviction in 1997. According to the probation report, Since 1980, [Foletti] has been placed on nine grants of probation. Over the past twenty-six years, Mr. Foletti has been convicted of twelve assault related offenses, including two serious and violent felonies, for which he was committed to State Prison. Foletti told the probation officer that he suffers from Hepatitis C, pulmonary disease and has lesions on his liver. He is currently taking Lithium and a medication to treat depression.

The court granted appellants motion to dismiss the strike allegations in the interests of justice. It denied his motion to reduce the current conviction to a misdemeanor. The court stated that it was professionally familiar with appellant, having known him since probably 1980. The court explained that this is not a case for twenty-five to life. It would be Draconian. It would be certainly outside the spirit of the three strikes even though Mr. Foletti is a disaster on probation. She continued, [Y]ou have a record that is appalling. If this were a serious or violent felony that you had committed, I would probably be doing the twenty-five to life. But I think that it is not in keeping with that statute for me to send you to prison for that kind of time for having a billy club in your car. That doesnt mean Im not going to send you to prison. You are not a candidate for probation. There is no way. You have a dismal record. You have screwed up most of probations youve been on. Youve been to prison already. She concluded, What I intend to do is to strike both prior serious or violent felonies and sentence you to the aggravated term plus the year for the prison prior for a total of four [years]. [] You are getting one heck of a deal out of this court. Im a little leery of it, but at your age I just cant bring myself to give you more. I thought about a number of things. But this crime doesnt warrant more than that.

The minute order does not reflect dismissal of the two strikes. It only indicates that appellant was sentenced to the aggravated term of three years for the substantive offense plus one year for the prison prior.

B. Failure to state in the minutes the reasons supporting exercise of Romero discretion necessitates remand for resentencing.

The People correctly argue that the trial court erred in dismissing the prior strikes without setting forth its reasons in the minute order. When a court decides to exercise Romero discretion, section 1385, subdivision (a), requires the reasons for the dismissal of the strike or strikes to be set forth in an order entered upon the minutes. The provision is mandatory. (Humphrey, supra, 58 Cal.App.4th at p. 811.) In this instance, the minute order fails to reflect disposition of the two strikes and does not contain any reasons supporting the dismissal of the strikes. Thus, section 1385, subdivision (a), was not satisfied.

The proper remedy is to remand for resentencing. The People argue that remand is inappropriate because dismissal of the strikes is erroneous as a matter of law. We disagree. Foletti is in his late 40s and self-reports that he suffers from serious medical infirmities. While Folettis criminal history is lengthy and he repeatedly has failed on probation, his crimes do not appear to be substantially increasing in severity. The current offense is not a serious or violent felony. After examination of all the surrounding facts relating to the offense and the offender, we do not believe that dismissal of the strikes necessarily is erroneous as a matter of law. In this instance, the disposition of the strikes is a matter for exercise of reasoned judicial discretion.

Humphrey, supra, 58 Cal.App.4th 809 is closely analogous. Humphrey was a career criminal for over 30 years. (Id. at p. 812.) He suffered prior strikes for robbery and burglary and served four prior prison terms. The trial court dismissed one of the strikes, a 1976 robbery. The appellate court reversed because the minute order failed to reflect the reasons for the dismissal. The People argued that remand is inappropriate because, given defendants record, it would be unreasonable as a matter of law for any sentencing court to strike a serious prior felony conviction. (Id. at p. 813.) The appellate court rejected this contention, explaining: While an appellate court has the power to modify the sentence ( 1260) we exercise this power sparingly for, as indicated in People v. Bishop, supra, 56 Cal.App.4th 1245, 1251, the trial courts articulated discretion is, generally speaking, controlling. (Humphrey, supra, 58 Cal.App.4th at p. 813.)

Likewise, in this instance, the natures of the offense and the offender are not such that exercise of Romero discretion in Folettis favor necessarily constitutes judicial error as a matter of law. Thus, the proper remedy is remand for resentencing only. If the trial court again attempts to exercise Romero discretion, it must set forth its reason or reasons in the minute order. (Humphrey, supra, 58 Cal.App.4th at p. 814.)

II. The Issues Presented in Folettis Cross-Appeal Lack Merit.

A. Prejudicial ineffective assistance of counsel has not been established.

To prevail on an ineffective assistance claim, Foletti bears the burden of establishing both deficient performance and prejudice. He must show that defense counsels representation fell below an objective standard of reasonableness under prevailing professional standards and that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694; People v. Lewis (1990) 50 Cal.3d 262, 288.) When an ineffective assistance claim can be resolved solely on lack of prejudice, a reviewing court need not determine whether counsels performance was objectively deficient. (In re Jackson (1992) 3 Cal.4th 578, 604.)

Foletti argues that defense counsel was prejudicially ineffective because he failed to present the testimony of two defense witnesses who were referenced in his opening statement and he referred to Folettis service of a prison term in his closing argument. We are not convinced. As will be explained, Foletti failed to satisfy his burden of proving both deficient performance and prejudice.

i. Facts

During his opening statement, defense counsel stated that the evidence would establish that Foletti possessed the bat and the stick for legal means, including holding up the hood to his car. He also stated that he was going to present an attorney from San Francisco, who will testify that in prison slang, a bone crusher is a knife.

During the prosecutions case-in-chief, Poortinga testified that he would not use the round piece of wood to lift up the hood of the Camero because it was too long. He had not looked to see if the Camero had a hood prop and no one had asked him to look.

James Wayne Mele, who is a sergeant in the Tuolumne County Sheriffs Department, testified that he was told by police evidence technician Larry Monfort that the term bone crusher referred to a knife.

After the prosecution rested, defense counsel stated that he intended to call Officer Graziose to testify that he encountered Foletti shortly before the probation search and he observed a big club in the Camero. Defense counsel stated that Graziose asked Foletti about this object and Foletti told him the he used it to hold up the Cameros hood.

The prosecutor objected to Foletti calling a state public defender who has compiled a compendium of prison slang terms, including the term bone crusher, on the ground that defense counsel had not made an adequate offer of proof that the attorney would qualify as an expert. The court ruled that it would allow the attorney to testify to whatever expertise he has with proper foundation being laid.

Then defense counsel stated that he doubted Foletti would be testifying and he was tempted to just leave things as they are and rest without calling any defense witnesses. He characterized Meles testimony that Monfort said that the term bone crusher referred to a knife as a surprise expert witness from the property room.

The court asked defense counsel if he was going to call Graziose. Defense counsel replied, Let me have some -- if I can get him in this afternoon. The court directed defense counsel to speak with Foletti during the lunch break and well go from there.

After the noon recess, the prosecutor asked for permission to reopen the Peoples case-in-chief and call Monfort to testify that he had not heard the term bone crusher referred to as a knife. Defense counsel objected. He stated that he had released the attorney because the prosecutor had rested. Opening the case-in chief would undermine the state of evidence that a bone crusher was a slang term for knife. Defense counsel also stated that he intended to release Graziose and rest on the state of the evidence. The court overruled the prosecutors motion to reopen the Peoples case-in-chief because it would be unfair to the defense.

During his closing argument, defense counsel urged the jury to find reasonable doubt based on failure to prove that the bat and stick were possessed for the purpose of being used as weapons. He pointed out that Folettis focus was on controlling the dog and it was uncertain whether Foletti was referring to the knives or the wooden objects when he referred to his bone crushers. In relevant part, defense counsel stated: I also told you were going to bring in an expert to testify about bone crusher. Why didnt we? Officer Mele provided that information. I think his name is Larry at the evidence room told him, Yeah, Ive heard of knives called bone crushers. Once we had that, we didnt need to bring the expert down from San Francisco. He also stated, [P]lease, please, please do as [the prosecutor] suggests and forget that you ever heard that my clients ever been in prison. I would love you to forget that.

During the prosecutors rebuttal argument he stated that it was defense counsel who mentioned that Foletti had been to prison. Also, he urged the jury to disregard the statement attributed by Mele to Monfort concerning the meaning of the term bone crusher. Finally, the prosecutor speculated that the defense might not have called the attorney to testify because he might not have qualified as an expert.

ii. Failure to call the attorney was a conscious and reasonable tactical decision.

The record affirmatively demonstrates that defense counsel elected not to present testimony of the attorney expert because evidence was introduced by the prosecutor during the case-in-chief that negated the need for this witnesss testimony. There was uncontroverted testimony from a police officer that an evidence technician recognized the slang term bone crusher as referring to a knife. During his closing argument, defense counsel explained to the jury that he had not called expert testimony concerning the meaning of the term bone crusher because Mele testified that an evidence technician told him that it referred to a knife.

The decision whether to call a witness is a matter of trial tactics and strategy which a reviewing court generally does not second-guess. (People v. Mitcham (1992) 1 Cal.4th 1027, 1059.) Defense counsels decision to rely on the state of the evidence concerning the meaning of the term bone crusher was not unreasonable. The prosecution unexpectedly presented evidence supporting the defenses position that the term bone crusher referred to a knife. If defense counsel presented the attorneys testimony on this topic, the prosecutor would have been permitted to introduce rebuttal evidence on this topic. This evidence conceivably could have included testimony by Monfort that he did not tell Mele that the term bone crusher referred to a knife. Defense counsels decision not to call the attorney was a deliberate and reasonable tactical choice and does not constitute deficient performance.

iii. Failure to call Graziose is a claim that is properly resolved in a habeas corpus proceeding.

Foletti cites defense counsels release of Graziose as prejudicial ineffective assistance of counsel.^[3] The record affirmatively demonstrates that defense counsel decided not to call Graziose as a defense witness. However, there is no clear indication in the record why defense counsel decided not to present this witness. When the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged ... unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, these cases are affirmed on appeal. [Citation.] (People v. Avena (1996) 13 Cal.4th 394, 418.) A claim of ineffective assistance in such a case is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) There are numerous legitimate reasons that can be posited to justify defense counsels decision not to call Graziose and this may well have been a reasonable decision. Yet, since it is not our function to engage in the perilous process of second-guessing trial counsel, we will not hazard any conclusion on this point. As the record does not support a finding that there simply could not be a satisfactory explanation for this decision, this claim must be pursued in a petition for habeas corpus. (Id. at pp. 266-268.)^[4]

iv. Reference to Folettis service of a prior prison term is harmless.

Foletti also challenges defense counsels statement his closing argument that Foletti had served a prison term as another instance of deficient performance. We resolve this point on lack of prejudice. (In re Jackson, supra, 3 Cal.4th at p. 604.) The brief references to service of a prison term during the defenses closing argument and in the prosecutors rebuttal argument are not so inherently prejudicial that it is reasonably likely that they affected the verdict. No specifics were provided about the prior offense or the length of imprisonment. Indeed, the prosecutor was concerned that the jury would be sympathetic toward Foletti because it is commonly known that the consequences arising from a guilty verdict are more severe when the defendant has suffered one or more prior convictions. Thus, we find the alleged error to be harmless.

B. Absence of a unanimity instruction was not prejudicial.

Foletti also contends that the court erred by failing to give a unanimity instruction sua sponte because it could have convicted him of illegally possessing either the bat or the stick. Failure to give a unanimity instruction is governed by the harmless beyond a reasonable doubt standard articulated in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Thompson (1995) 36 Cal.App.4th 843, 853 (Thompson).) We agree with the People that, in this instance, failure to give a unanimity instruction is harmless beyond a reasonable doubt.

Thompson sets forth the applicable legal principle:

Where the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. [Citation.] Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless. [Citation.] (Thompson, supra, 36 Cal.App.4th at p. 853.)

Here, the evidence and argument is such that we conclude the jury resolved the basic credibility question adverse to Foletti. When the bat and the stick were placed on the hood of the Camero, Foletti yelled out, Hey, those are my bone crushers. Leave them alone. (Emphasis added.) Folettis use of the plural is important in this context. When Foletti made the comment about bone crushers, the knives had not yet been removed from the Camero. The prosecutor argued in his opening and closing statements that Foletti possessed two billy clubs -- the bat and the stick. At trial, defense counsel did not deny that both items were found inside Folettis Camero. Rather, he only argued that neither one was possessed for use as a weapon. We do not find it reasonably possible that the jury might have found that only one of the wooden objects constituted a billy club. Therefore, we conclude that the instructional omission is harmless beyond a reasonable doubt.

DISPOSITION

The judgment of conviction is affirmed. The sentence is reversed and the matter is remanded solely for resentencing. If the trial court again attempts to exercise Romero discretion, it must set forth its reason or reasons in the minute order.

_________________________

Levy, J.

WE CONCUR:

_______________________________

Vartabedian, Acting P.J.

_______________________________

Harris, J.

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^[1] Unless otherwise specified, all statutory references are to the Penal Code.

^[2]People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).

^[3] On its own motion, this court takes judicial notice of its file in F052240, which is a habeas proceeding filed by Foletti. (Evid. Code,  452, subd. (d).) The contents of this file establishes that in January 2007 the Superior Court of the County of Tuolumne denied a petition for writ of habeas corpus alleging ineffective assistance of counsel, because the same claim was pending on appeal. In February 2007, appellant petitioned this court for habeas relief and motioned to consolidate the habeas petition with the pending appeal. We denied the consolidation motion and, on March 19, 2007, denied the habeas petition without statement of reasons. Foletti did not support his habeas petition with a declaration authored by Graziose setting forth Grazioses proposed testimony. Also, Foletti did not submit a declaration authored by defense counsel, although appellate counsel averred in the writ petition that she spoke with defense counsel and he agreed to consider executing a declaration but he did not execute the declaration she subsequently sent to him. Since the superior court denied the habeas petition on the ground of a pending appeal and this court did not decide the habeas petition on the merits or issue an opinion with a statement of reasons, appellant is not foreclosed from presenting a new petition for habeas corpus, supported by appropriate declaratory evidence, in the superior court. (See Hagan v. Superior Court (1962) 57 Cal.2d 767, 770-771.)

^[4] In the writ petition, appellate counsel averred that defense counsel told her that he decided not to call Graziose because Graziose could not attest to whether or not the objects he observed in the Camero a week before Folettis arrest were the same objects that formed the basis of the weapon possession charge. Without deciding the point, we are of the opinion that if this is the reason that defense counsel decided not to call Graziose, it constitutes a reasonable tactical choice.