P. v. Hutt

 

 

 

 

 

 

 

Filed 9/4/13  P. v. Hutt CA3

Received for posting 9/6/13

 

 

 

 

NOT TO BE PUBLISHED

 

 

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opinion has not been certified for publication or ordered published for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.

 

 

COPY

IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE
DISTRICT

(Butte)

----

 

 

 
>

THE PEOPLE,                           Plaintiff and Respondent,               v.   DAVID DALE  HUTT,                           Defendant and Appellant.

C069685   (Super. Ct. Nos. CM032095, CM034094)

 

 

            This case
comes to us pursuant to People v.
Wende (1979) 25 Cal.3d 436 (Wende)
and People v. Kelly (2006) 40 Cal.4th 106, 110, 124 (Kelly). 

            Having
reviewed the record as required by Wende,
we have found a significant error.  The
trial court wrongly found defendant in violation of probation on case
No. CM032095 based on a crime he committed before he was on
probation.  We also note that the trial
court erred by “staying” the Penal Code section 667.5,
subdivision (b) prior prison commitment enhancement in case No. CM034094.

            Accordingly,
we vacate the probation violation and strike the corresponding prison
sentence.  As modified, we affirm the
judgment.  However, we remand the case
with directions to the trial court to exercise its discretion to reinstate
probation in case No. CM032095 or terminate probation in lieu of
defendant’s prison sentence in case No. CM034094.  The trial court is also directed to exercise
its discretion by resentencing defendant on the prior prison commitment
enhancement the court ordered “stayed” in case No. CM034094 or striking it
pursuant to Penal Code section 1385, subdivision (a). 

            We provide
the following description of the facts and procedural history of the case.  (Kelly, supra, 40 Cal.4th
at p. 124.)

>FACTUAL AND PROCEDURAL BACKGROUND

            Geraldine
Clark left her trailer and most of her belongings on June 17, 2010 to care for her ailing
son.  She returned on September 25
or 26, 2010, to find that most of her possessions had been stolen.  What had not been stolen had been damaged. 

            Floyd Wilkins lived directly across
from Clark.  In
July 2010, defendant was staying with Wilkins. 
During that time, defendant gave Wilkins some costume jewelry.  Wilkins told defendant he did not want the
jewelry if it was stolen, and defendant said, “it’s all good, you don’t have to
worry about it.”  Defendant moved out of
Wilkins’s home at the end of July and moved into a trailer on Howard Covert’s
property.  After defendant moved out of
Wilkins’s home, Lisa Guertner moved in. 
Wilkins gave the jewelry, which was in three plastic bags, to
Guertner. 

            About one month before Clark’s
return, Guertner noticed the door to Clark’s trailer was
ajar and informed Wilkins.  Wilkins
contacted the manager of the trailer park, who called law enforcement to
investigate.  Deputy Sheriff Dave Ennes
responded to the call.  The door of the
trailer was open, and inside the trailer there was “stuff everywhere.  Piles of personal belongings on the floor,
all over the . . . inside of the trailer.” 

            Shortly after Clark’s
return, Guertner visited her.  Guertner
was wearing earrings that belonged to Clark.  Upon learning they were Clark’s
earrings, Guertner returned them.  The
earrings had been in one of the plastic bags of jewelry that defendant had
given to Wilkins.  Guertner returned two
bags of jewelry to Clark; she had given the third bag to
a friend.  Clark
identified the jewelry as hers.  Some of Clark’s
jewelry remained missing, as well as a plasma television, several commemorative
coin collections and 250-300 cans of food. 
One of the stolen rings was her mother’s wedding ring, which was broken.  Clark was also missing
two Raiders jackets, and a number of autographed sports photographs, some of
which included personalized signatures to her son.  Clark estimated her
losses to be between $15,000 and $17,000. 


            As noted, defendant moved from
Wilkins’s home to a trailer on Covert’s property.  Covert had known defendant for
20 years.  Defendant stayed at the
trailer for three weeks to a month, until August 25, 2010, when defendant was remanded to
custody. 

            Defendant gave Covert’s wife, Sarah Osa,
sports photographs.  Covert did not see
defendant with the photographs, but Osa did. 
Defendant also showed Covert and Osa boxes of coins.  Both Covert and Osa had seen defendant
wearing a Raiders jacket. 

            Defendant gave Osa jewelry and
coins, which she then sold at a coin and jewelry store.  Osa gave defendant the money from the sale of
the coins.  Osa was required to show her
identification to make the sales. 
Defendant told her he could not make the transaction because he did not
have any identification.  Osa later found
out this was not true.  One of the rings
Osa sold was a broken wedding ring. 
Defendant also brought Osa 20-25 cans of food.

            Covert found Clark’s
new Raiders jacket and additional autographed pictures in the shed on his
property.  The shed was right outside the
trailer defendant stayed in, and defendant had access to it.  Covert returned the items he had found to Clark.  Covert also gave Clark
and Detective Ryan Gsell permission to search the trailer where defendant
stayed.  Clark found
one of her suitcases in the trailer’s closet. 
The suitcase was empty.  It
previously had contained two Raiders jackets and autographed sports pictures. 

            Detective Gsell interviewed
defendant.  He showed defendant the
stolen sports photographs and asked defendant if he had ever seen them.  Defendant responded that he had seen them in
his trailer.  Gsell asked if defendant
thought the pictures were stolen and defendant answered, “I couldn’t say no; I
couldn’t say yes.”  Defendant denied
wearing a Raiders jacket and claimed he had purchased the canned food he
brought to Osa with food stamps. 

            A number of the witnesses had
challenges made to their credibility. 
Guertner had two prior convictions and admitted having been a heroin
addict.  Wilkins previously had been
convicted of residential burglary, robbery, felony drunk driving and escape
from jail or prison.  Covert had a prior
joyriding felony conviction and his wife, Osa, had been having an affair with
defendant. 

Case No. CM032095 

            In January 2010, approximately six
months before the Clark burglary, defendant pleaded no contest to forgery (Pen.
Code, § 470, subd. (d))href="#_ftn1"
name="_ftnref1" title="">[1]
and admitted a prior prison term allegation (§ 667.5, subd. (b)),
which was based on a conviction for a violation of section 1320,
subdivision (b), on September 13, 2005.  Pending sentencing, defendant was released on
his own recognizance (OR), with a condition that he attend a drug treatment
program.  The href="http://www.mcmillanlaw.com/">sentencing hearing was repeatedly
continued until August 25, 2010.  On
August 25, 2010, defendant tested positive for methamphetamine.  The court revoked his OR release and
defendant was remanded to custody. 

            On December 15, 2010, defendant
was sentenced to the upper term of three years, plus one year for the prior
prison term enhancement.  Execution of
sentence was “stayed” and defendant was granted three years’ probation.  One of the conditions of probation was that
defendant complete a residential substance abuse treatment program.  Two months after sentencing, in February 2011,
a petition for violation of probation was filed alleging defendant had
terminated his participation in the drug
treatment program.  

Case No. CM034094

            In March 2011, defendant was charged
in count 1 with residential burglary (§ 459) and in count 2 with
receiving stolen property (§ 496, subd. (a)), both counts stemming
from the burglary of Clark’s home.  It
was also alleged that defendant had served a prior prison term based on the
same September 13, 2005 violation of section 1320, subdivision (b)
(§ 667.5, subd. (b)) alleged in case No. CM032095 and that
defendant had committed the offense while on bail or released on OR in case
No. CM032095 (§ 12022.1).  The
information alleged that count 1 occurred on or about and between
June 17, 2010 and August 23, 2010, and that count 2 occurred on
or about and between August 23, 2010 and August 25, 2010. 

            Defendant was acquitted of the href="http://www.mcmillanlaw.com/">burglary charge, but convicted of
receiving stolen property.  He admitted
the truth of both enhancement allegations. 
The court also found, by virtue of his conviction for receiving stolen
property in this case, defendant had violated probation in case
No. CM032095.  The court made no
findings related to the allegation that defendant had violated his probation by
leaving the drug treatment program.

Sentencing

            In case No. CM034094, defendant
was sentenced to three years for receiving stolen property and two years for
the on-bail/OR enhancement.  In case
No. CM032095, the court sentenced defendant to eight months, to be served
consecutively to the term imposed on case No. CM034094. 

            The trial court “stayed” the
one-year sentence for the prior prison commitment enhancement in case
No. CM034094.  However, in case
No. CM032095, where the same prison commitment had been charged and
admitted, the court imposed a one-year sentence for the prison prior commitment
consecutive to the eight-month sentence it imposed as a result of a purported
violation of probation.

            Various fines and fees were imposed
and defendant was awarded 755 days of presentence custody credits. 

DISCUSSION

            We appointed David D. Martin of
Alameda, California, to represent defendant on appeal.  Counsel filed an opening brief that sets
forth the facts of the case and requests this court to review the record and
determine whether there are any arguable issues on appeal.  (Wende, supra, 25 Cal.3d
436.)  Defendant was advised by counsel
of the right to file a supplemental brief within 30 days of the date of
filing of the opening brief. 

            Defendant filed a supplemental brief
claiming:  (1) there is insufficient
evidence to support his conviction, (2) juror misconduct, and (3) he
was wrongly convicted of both a violation of probation and committing the
offense while on bail/OR.  We find no
merit in defendant’s first two claims. 
However, we must conclude that the trial court erred when it found that
defendant had violated his probation.

I.  Substantial Evidence

            “On appeal, the test of legal
sufficiency is whether there is substantial evidence,
i.e., evidence from which a reasonable trier of fact could conclude that the
prosecution sustained its burden of proof beyond a reasonable doubt.  [Citations.] 
Evidence meeting this standard satisfies constitutional due process and
reliability concerns.  [Citations.]  [¶] 
While the appellate court must determine that the supporting evidence is
reasonable, inherently credible, and of solid value, the court must review the
evidence in the light most favorable to the prosecution, and must presume every
fact the jury could reasonably have deduced from the evidence.  [Citations.] 
Issues of witness credibility are for the jury.  [Citations.]” 
(People v. Boyer (2006) 38 Cal.4th 412, 479-480.) 

            “The same standard [of review]
applies when the conviction rests primarily on circumstantial evidence.  [Citation.] 
Although it is the jury’s duty to acquit a defendant if it finds the
circumstantial evidence susceptible of two reasonable interpretations, one
of which suggests guilt and the other innocence, it is the jury, not the
appellate court that must be convinced of the defendant’s guilt beyond a
reasonable doubt.  [Citation.]  ‘ â€œIf the circumstances reasonably
justify the trier of fact’s findings, the opinion of the reviewing court that
the circumstances might also reasonably be reconciled with a contrary finding
does not warrant a reversal of the judgment. 
[Citation.]” â€™ 
[Citation.]”  (People v.
Kraft (2000) 23 Cal.4th 978, 1053-1054; see also People v.
Johnson (1980) 26 Cal.3d 557, 578.) 
As this court has noted, before we can set aside a verdict for
insufficiency of the evidence, “ â€˜it must clearly appear that on no
hypothesis whatever is there sufficient substantial
evidence to support the verdict of the [finder of fact].’  [Citation.]” 
(People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.)

            A defendant is guilty of receiving
stolen property if: (1) the property was stolen, (2) defendant knew
the property was stolen, and (3) defendant had possession of the stolen
property.  “The knowledge element of
receiving stolen property is normally proved not by direct evidence but by an
inference from circumstantial evidence. 
[Citation.]  [¶]  . . . [¶] . . . In
routine circumstances, the knowledge element is inferred from the defendant’s
failure to explain how he came to possess a stolen item or his offer of an
unsatisfactory explanation or from suspicious circumstances attendant upon his
possession of the item.”  (>People v. Alvarado (1982)
133 Cal.App.3d 1003, 1019-1020.) 
Evidence need not be strong to be sufficient.  (Id.
at p. 1020.) 
“ â€˜ â€œPossession of recently stolen property is so
incriminating that to warrant conviction there need only be, in addition to
possession, slight corroboration in the form of statements or conduct of the
defendant tending to show his guilt.” â€™ 
[Citation.]”  (>People v. Young (1981)
120 Cal.App.3d 683, 694.)

            Bags of jewelry, commemorative
coins, canned food, Raiders jackets and autographed sports photographs were
stolen from Clark’s trailer.  Defendant
gave Wilkins three bags that contained jewelry stolen from Clark.  Defendant had Osa pawn coins and jewelry,
pretending he could not complete the transactions himself.  In so doing, he avoided using his own
identification in making these sales. 
Among the items pawned was a ring matching the description of one stolen
from Clark.  Defendant was seen in
possession of commemorative coins, Raiders jackets, and sports photographs
stolen from Clark.  Clark’s suitcase,
which had held the Raiders jackets and some of the autographed photographs, was
found in the trailer where defendant was staying.  When asked about his knowledge of whether
certain property was stolen, rather than simply deny the matter, defendant gave
oblique responses such as, “I couldn’t say no; I couldn’t say yes.”  This is substantial evidence to support the
receipt of stolen property conviction.

II.  Purported Jury Misconduct

            Defendant contends jurors were
biased by overhearing a conversation between witnesses, the victim and the
prosecutor.  We find no prejudicial
error. 

            During jury selection, there were
some discussions in the courtroom hallway between the prosecutor, the victim
and a witness.  Two prospective jurors
were aware of the conversation and one overheard parts of it.  After discussions with the court, and
interviews of the jurors, the parties continued their voir dire.  Ultimately, three prospective jurors were
excused for cause and no peremptory challenges were used.  

            Defendant accepted the jury as
constituted and made no claim that any seated juror should be excused.  There is no claim counsel was prevented from
making reasonable inquiry into the fitness of any venire person to serve on the
jury.  (People v. Wright (1990) 52 Cal.3d 367, 419, disapproved
on other grounds by People v.
Williams (2010) 49 Cal.4th 405, 460.) 
Moreover, it is not clear whether any of the prospective jurors who may
have overheard the conversation actually sat on the jury, the defense had all
of its peremptory challenges remaining when it accepted the jury, and it did
not express dissatisfaction with the jury as sworn.  Therefore, to the extent there was any error,
it could not have been prejudicial.  (>People v. Burgener (2003)
29 Cal.4th 833, 866; People v.
Carpenter (1997) 15 Cal.4th 312, 354.)

III.  Probation Violation and On-Bail/OR
Enhancement

            Defendant contends he could not be
convicted of both a probation violation and the on-bail/OR enhancement.  Defendant is correct, as he was not on
probation at the time he committed the receiving stolen property offense in
case No. CM034094. 

            In case No. CM032095, after
defendant pleaded no contest to forgery, he was released on OR.  He remained released on OR between the time
of his plea in January 2010 and August 25, 2010, when he was remanded to
custody after testing positive for methamphetamine.  At that time, he had not been sentenced and
was not on probation.  Defendant was not
placed on probation in case No. CM032095 until December 15, 2010.  The receipt of stolen property offense in
case No. CM034094 was committed sometime between August 23 and
August 25, 2010, prior to defendant’s remand for testing positive. 

            On February 14, 2011, a
petition for violation of probation was filed, alleging defendant had violated
his probation in case No. CM032095 by terminating his participation in a
substance abuse rehabilitation program without permission of the probation
officer.  This was not, however, the basis
of the finding that defendant had violated his probation.  Rather, the court found “[b]y virtue of the
defendant’s having been found guilty of [section] 496(a), the Court is finding
he’s in violation of probation in [case No.] CM032095.” 

            Because defendant was not on
probation at the time he committed the receiving stolen property offense, he
could not have violated that probation by committing that offense.  Thus, the trial court erred when it found
defendant had violated probation as a result of his receiving stolen property
conviction.  Accordingly, we vacate the
probation violationhref="#_ftn2"
name="_ftnref2" title="">[2] and
strike the sentence imposed as a result of finding defendant in violation of
his probation.

IV.  Prior Prison Sentence Enhancement

            We have found
another error.  This one relates to the
prior prison commitment enhancement based on the September 13, 2005
conviction of section 1320, subdivision (b), charged in both cases.  In the newer case, case No. CM034094,
the court ordered that the enhancement be “stayed.”  However, the trial court imposed the one-year
sentence for the enhancement in case No. CM032095, the case for which we
have concluded the court erroneously found defendant had violated
probation. 

            Aside from the
fact defendant was not on probation in case No. CM032095 and thus
could not have been sentenced to prison with a consecutive term for the
enhancement based on a finding that he violated his probation on that case, the
court also erred in ordering the enhancement “stayed” in case
No. CM034094.  “Prior prison term
enhancements may be imposed or stricken but not stayed.”  (People v. Jordan (2003)
108 Cal.App.4th 349, 368; People v.
Jones (1992) 8 Cal.App.4th 756, 758.) 
Thus, not only was the prison sentence on case No. CM032095 a
legally unauthorized sentence, the sentence “staying” the prison enhancement
in case No. CM034094 was also legally unauthorized.  (People v. Bradley (1998)
64 Cal.App.4th 386, 391 (Bradley)
[the failure to impose or strike a prior prison commitment enhancement is a
legally unauthorized sentence].)  Thus,
on remand, the trial court must decide what to do with the prior prison
commitment enhancement it previously stayed on case No. CM034094.  The court has the discretion to impose
it.  A legally unauthorized sentence “is
subject to being set aside judicially and is no bar to the imposition of a
proper judgment thereafter.”  (>People v. Serrato (1973)
9 Cal.3d 753, 764; see also People v.
Torres (2008) 163 Cal.App.4th 1420, 1432; People v. Craig (1998) 66 Cal.App.4th 1444, 1449.)  Or, in the alternative, the court has the
discretion to strike the prior prison commitment in case No. CM034094 pursuant
to Penal Code section 1385, subdivision (a).  However, “if a trial judge exercises the
power to strike pursuant to section 1385, subdivision (a), the reasons for
the exercise of discretion must be set forth in writing in the
minutes.”  (Bradley, supra, 64 Cal.App.4th at
p. 391.)

V.  Conclusion

            Having undertaken an examination of
the entire record, we find no other arguable errors that would result in a
disposition more favorable to defendant.

DISPOSITION

            The finding that defendant violated
his probation in case No. CM032095 is vacated and the sentence imposed as
a result of that finding is stricken. 
The trial court is directed, in the exercise of its discretion, to
reinstate probation on case No. CM032095 or terminate probation in that case in lieu of
the prison sentence on case No. CM034094. 
In case No. CM034094, the court is directed to impose a consecutive
term of one year for the prior prison commitment enhancement it previously
stayed or to strike the enhancement pursuant to section 1385 if the court
finds it is in the interests of justice to do so.  The trial court is further directed to
prepare an amended abstract of judgment reflecting the modifications to the
judgment and forward a certified copy of the amended abstract to the href="http://www.mcmillanlaw.com/">Department of Corrections and Rehabilitation.  As modified, the judgment is affirmed.

 

 

                                                                                                                MURRAY                   , J.

We concur:

 

 

 

                        BUTZ                          , Acting P. J.

 

 

 

                      DUARTE                     , J.