P. v. Jones

Filed 12/10/07 P. v. Jones CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, John J. Cheroske, Judge. Affirmed in part; reversed in part with directions.

William D. Farber, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney, Susan Sullivan Pithey and Lance E. Winters, Deputy Attorneys General, for Plaintiff and Respondent.

I. INTRODUCTION

Defendant, Oswald Pitts Jones, was convicted after a court trial of one count of robbery and one count of petty theft with a prior conviction. (Pen. Code, 211, 666.) Also, defendant was found to have been previously convicted of a serious felony and served a prison term. ( 667, 667.5, subd. (b).) We substantially modify the sentence.

II. THE FACTS CONCERNING THE ROBBERY AND THE ATTACK ON THE SECURITY GUARD

On December 12, 2005, Lakeshia Grundy, a loss prevention agent employed by Superior Super Warehouse, saw defendant smoking marijuana. Ms. Grundy approached defendant and asked him to put out the marijuana cigarette. Ms. Grundy described what defendant did upon thereafter entering the store, He grabbed a bag of bologna, a pack of cheese and he walked over to the general merchandise aisle where he grabbed a box of Neosporin and concealed all the items. Defendant then walked through what Ms. Grundy described as aisle seven and that was where he concealed the aforementioned items he was stealing in his right and left front pants pockets. After concealing the items, defendant picked up a bag of bread and a bottle of water. Defendant paid for the bread and water.

Ms. Grundy, two of her partners, and a security guard followed defendant out of the store. Ms. Grundy said she was a loss prevention agent and asked defendant to come back inside the store. Defendant responded, Im from the Nation of Islam. Ms. Grundy described what happened next: [M]y partner asked him to put his hands behind his back and he said, get your fn hands off me. And he started getting forceful. When asked to describe how defendant became forceful, Ms. Grundy explained: [M]y partner asked him to put his hands behind his back. And he tried to walk away and my partner grabbed the back of his arm. And he said, get your fn hands off of me. Defendant then tried to yank the arm of Ms. Grundys partner. She described what happened next: He took a swing at one of my partners like in the throat area. And he was like being really resistant and they grabbed him, and I put the handcuffs on him. When Ms. Grundy used the term swing, she meant that defendant kicked at one of her partners. Defendant missed one of Ms. Grundys partners but hit another in the leg.

Another security guard, Jerrell Herod, testified, He said hes from the Nation of Islam and you dont know who you are fuckin with and he took a swing at me. Mr. Herod described defendants attack, He swung toward my face, but I ducked so it caught me in the neck/chest area. Mr. Herod was actually struck by defendant. According to Mr. Herod, defendant pushed another security guard, Jose Escobedo. Mr. Herrod described the manner in which he was struck as a glancing blow. It was only after defendant began attacking the security guards that he was slammed to the ground.

Mr. Escobedo described the incident, He swung at my partner, hit him . . . close to his neck. Mr. Escobedo testified it became necessary to push defendant against a wall. Once he was forced against the wall, defendant was handcuffed by Ms. Grundy. Ms. Grundy searched defendant and found bologna, cheese, and Neosporin. The security guards also recovered approximately $1.60 in change from defendant.

III. THE PROBATION REPORT

According to the probation report, defendant was arrested on October 11, 1987, for grand theft of an automobile. On November 9, 1988, defendant was convicted of attempted grand theft and placed on 12 months probation on the condition he serve 60 days in the county jail. Before his conviction, defendant was arrested on grand theft and trespassing charges. Convicted of trespassing on October 5, 1988, he was placed on two years summary probation. On September 23, 1988, defendant was arrested for robbery and burglary. Convicted of robbery on November 1, 1988, the imposition of sentence was suspended and defendant was placed on 36 months probation upon the condition he serve 150 days in jail. On April 27, 1990, defendant was required to serve an additional 38 days in jail for unspecified reasons.

On September 10, 1990, defendant was arrested for and charged with felony burglary. On October 26, 1990, defendant was convicted of attempted petty theft as a misdemeanor and placed on probation for 6 months on the condition he serve 90 days in jail. On October 27, 1990, defendant was arrested for battery, assault with a deadly weapon, vandalism, and disturbing the peace. He was convicted of disturbing the peace and placed on probation for six months on the condition he serve two days in jail.

On February 4, 1992, defendant was arrested for trespassing. The next day, he was convicted of that offense and sentenced to 10 days in county jail. On an uncertain date, defendant was arrested for possession of drug paraphernalia. In September 1, 1992, he was sentenced to 10 days in county jail. On April 28, 1993, defendant was arrested for trespassing. On April 5, 1993, defendant was convicted of interfering with a public transit employee. Defendant was placed on probation for 12 months on the condition he serve 4 days in county jail. On April 26, 1993, defendant was arrested for battery, interfering with a peace officer, violating a municipal code requirement that a business license be posted, and disturbing the peace. He was convicted of disturbing the peace. Defendant was placed on probation for 18 months and required to serve 4 days in county jail. On October 30, 1993, defendant was arrested for interfering with a public transit employee. On November 2, 1993, he was convicted as charged. He was required to serve two days in the county jail as a condition of one year summary probation. On an uncertain date, defendant was arrested for drinking in public. On November 1, 1993, he received a three-day county jail sentence. On April 21, 1994, defendant was arrested for trespassing. On November 9, 1994, defendant pled nolo contendre and was fined. On October 24, 1994, defendant was arrested for disturbing the peace and making criminal threats. On November 9, 1994, he was convicted and sentenced to 45 days in county jail.

On June 8, 1997, defendant was arrested for making criminal threats, making a false bomb report, interfering with a health care provider, and disturbing the peace. Defendant was convicted of obstructing a health care provider and disturbing the peace. He was placed on 24 months summary probation upon the condition that he serve 15 days in the county jail. On April 19, 2000, defendant was arrested for robbery. He was convicted of robbery and sentenced to two years in state prison. He was also arrested for petty theft with a prior conviction and interfering with an executive officer. These latter two charges were dismissed. On October 31, 2003, defendant was arrested for driving under the influence of alcohol and reckless driving. Defendant was convicted of reckless driving and placed on 36 months summary probation upon the condition that he serve 20 days in the county jail. (When defendant committed the robbery and assaults which led to the present charges, he was in violation of the grant of probation in the reckless driving case.)

The probation officer stated: The defendant appears to be in violation of probation. The defendants overall arrest history appears serious and escalating. The defendant was previously committed to state prison for robbery as recent as the year 2000. He has committed a host of thefts, trespassing, and disturbing the peace offenses where he received local custody and probation without supervision. It does not appear that the defendant sustained adjudications as a juvenile. . . . [] The defendant appears ineligible for probation in the instant matter. It also appears that he is unsuitable for probation. . . . Should the defendant be convicted of the criminal charges, a state prison sentence appears warranted. The maximum time in state prison appears appropriate. It appears that the defendant has demonstrated an unwillingness to make a change and become a productive member of the community. He has continued to violate the laws as indicated by his actions in the instant matter. In spite of numerous periods of incarcerations and supervision, the defendant has continued to display anti-social behavior which is a danger to the welfare and safety of the community. The probation officer identified three aggravating circumstances and was unable to identify any mitigating factors. The probation officer noted: When considering state prison, the circumstances in aggravation appear[] to support the high-base term. There appears to be an absence of circumstances in mitigation.

IV. DISCUSSION

A. Jury Trial Waiver

Defendant challenges his waiver of his right to a jury trial. On April 24, 2006, defendant waived his right to a jury trial as follows: THE COURT: Okay. [] Mr. Jones, do you want to take the jury waiver, please. [] [PROSECUTOR]: Sure. [] Is Oswald Pitts Jones, is that your true and correct name? [] [DEFENDANT]: Yes. [] [PROSECUTOR]: Mr. Jones, you have your right to have your case decided by a jury of 12 people. [] Do you understand that right? [] [DEFENDANT]: Yes. [] [PROSECUTOR]: Do you waive and give up that right? [] [DEFENDANT]: Give up my right? Yes. [] [PROSECUTOR]: Its something that you need to personally decide. You need you have the right to [] [DEFENDANT]: I understand everything you just said. [] [PROSECUTOR]: Do you understand that? [] [DEFENDANT]: Yes. [] [PROSECUTOR]: Do you waive that right to allow, I believe, Judge Cheroske is going to hear this case? [] [DEFENDANT]: Yes. [] [PROSECUTOR]: Counsel join in the waivers? [] THE COURT: Im going to try it? [] [PROSECUTOR]: I thought we decided you were going to do it. [] THE COURT: Well, you might have, but you didnt include me. [] [DEFENDANT]: They didnt include me either. [] [DEFENSE COUNSEL]: Hes agreeable to accept it. Contrary to defendants contention, there was no coercion of his jury waiver. Defendants waiver meets all applicable constitutional and statutory requirements. (Duncan v. Louisiana (1968) 391 U.S. 145, 157-158; People v. Collins (2001) 26 Cal.4th 297, 305; People v. Spates (1959) 53 Cal.2d 33, 35; People v. Langdon (1959) 52 Cal.2d 425, 431-432.)

B. Failure To State Reasons For Imposing The Upper Term

Defendant argues the trial court failed to state reasons for imposing the upper term. This contention has been forfeited. (People v. Scott (1994) 9 Cal.4th 331, 356; People v. Neal (1993) 19 Cal.App.4th 1114, 1117.) In any event, any error was harmless in light of defendants prior record and the violence displayed during the robbery. (People v. Avalos (1984) 37 Cal.3d 216, 233; People v. Watson (1956) 46 Cal.2d 818, 836.)

C. Constitutionality Of The Imposition of The Upper Term

Defendant argues the imposition of the upper term violates the holding of Cunningham v. California (2007) 549 U.S. __, __ [127 S.Ct. 856, 871]. However, there is no evidence the trial court committed Cunningham error. The trial court never stated it was relying on a prohibited factor in setting the upper term. This is different from Cunningham where the trial judge expressly relied on six factors not found by the jury to impose the upper term on the accused who had no prior record. (Cunningham v. California, supra, 549 U.S. at pp. __, __ [127 S.Ct. at pp. 860-861].) Moreover, if there was Cunningham error, it is harmless in light of defendants 17 prior convictions and his probationary status when he was sentenced in this case. (Washington v. Recuenco (2006) 548 U.S. __, __ [126 S.Ct. 2546, 2553]; Chapman v. California (1968) 386 U.S. 18, 22.) It bears emphasis this is a crime of violence. Without provocation, defendant tried to kick an unarmed security guard in the throat.

D. Concurrent Count 3 Sentence

In count 2, defendant was convicted of the robbery of the Superior Super Warehouse on December 12, 2005. In count 3, defendant was convicted of petty theft with a prior conviction on the same date. The property taken in the December 12, 2005 incident consisted of a bag of bologna, a pack of cheese, and a box of Neosporin. This property, which was taken on a single occasion, served as the basis for both the robbery and felony theft convictions. Under these circumstances, concurrent sentences for robbery and petty theft violate Penal Code section 654, subdivision (a). (People v. Ortega (1998) 19 Cal.4th 686, 696; People v. Irvin (1991) 230 Cal.App.3d 180, 184.)

The trial court imposed a concurrent eight month sentence as to count 3. A sentence consisting of one-third of the midterm can only occur when a consecutive determinate sentence is imposed. (Pen. Code, 1170.1, subd. (a); People v. Quintero (2006) 135 Cal.App.4th 1152, 1156.) The count 3 sentence is reversed. Upon issuance of the remittitur, the trial court shall select one of the three terms and then stay it pursuant to Penal Code section 654, subdivision (a).

E. The Five Year Enhancement

The parties agree that the trial court erred when it imposed but stayed defendants Penal Code section 667, subdivision (a) prior serious felony enhancement. The additional five-year term for a prior serious felony enhancement under section 667, subdivision (a) must be imposed. The trial court cannot stay nor strike it pursuant section 1385, subdivision (a). ( 1385, subd. (b); see People v. Aubrey (1998) 65 Cal.App.4th 279; People v. Dominguez (1995) 38 Cal.App.4th 410, 426.)

F. The Stayed Prior Prison Term Enhancement

The trial court stayed the Penal Code section 667.5, subdivision (b) prior prison term enhancement. A prior prison term enhancement may not be stayed. (People v. Harvey (1991) 233 Cal.App.3d 1206, 1231; People v. Cattaneo (1990) 217 Cal.App.3d 1577, 1588-1589.) The prior prison term arose from the same conviction where defendant was convicted of a serious or violent felonyrobbery. Thus, the prior prison term enhancement must be stricken. (People v. Jones (1993) 5 Cal.4th 1142, 1152-1153 see People v. Lopez (2004) 119 Cal.App.4th 355, 364.) Upon issuance of the remittitur, the prior prison term is to be stricken.

G. Fines

The Attorney General argues that Government Code section 70372, subdivision (a) state court construction penalties should have been imposed on the Penal Code sections 1202.4, subdivision (b)(1) and 1202.45 restitution fines. This contention has no merit. (People v McCoy (Nov. 14, 2007, B198031) __ Cal.App.4th __, __-__.) The abstract of judgment erroneously states that the trial court imposed Penal Code sections 1202.4, subdivision (b)(1) and 1202.45 restitution fines in the sums of $1,100 respectively. In fact, the trial court only imposed $1,000 Penal Code sections 1202.4, subdivision (b)(1) and 1202.45 restitution fines. Upon issuance of the remittitur, the trial court shall personally insure the abstract of judgment correctly reflects all of the fines imposed. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)

V. DISPOSITION

The judgment is modified to reverse the stay of the Penal Code section 667, subdivision (a) five-year enhancement and to strike the Penal Code section 667.5, subdivision (b) prior prison term enhancement. The count 3 eight month sentence for petty theft with a prior conviction is reversed. The five year Penal Code section 667, subdivision (a) five-year enhancement is to be imposed. Upon issuance of the remittitur, the trial court is to proceed as to count 3 as discussed in the body of this opinion and to

personally insure a corrected abstract of judgment is prepared and served on the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P.J.

I concur:

KRIEGLER, J.

MOSK, J., Concurring and Dissenting

I agree that defendants jury waiver was valid and that the trial court erred in sentencing defendant. I dissent, however, from that part of the disposition directing the trial court to impose the five-year prior serious felony enhancement pursuant to Penal Code, section 667, subdivision (a)[1]on top of the upper-term sentence of five years on defendants conviction for robbery. The effect of that direction will be to double the term of imprisonment intended by the trial court in crafting defendants sentence. This court should not usurp the trial courts sentencing discretion. Rather, defendants sentence should be vacated and the matter remanded to permit the trial court to exercise its discretion to fashion a sentence appropriate to the defendant and his crime, knowing that the section 667, subdivision (a) enhancement must be imposed. It is highly unlikely that the trial court contemplated a ten year sentence for the theft of $11.28 worth of food and medicine.[2]

Shortly before 11:00 p.m. on December 12, 2005, defendant Oswald Pitts Jones stole $11.28 cents worth of bologna, cheese and Neosporin antibiotic ointment from a Superior Super Warehouse in south Los Angeles. When the stores loss prevention personnel attempted to detain him, defendant kicked one loss prevention agent and struck another. Neither was injured. Defendant was detained by store security personnel and subsequently arrested by the Los Angeles Police Department.

Defendant was charged with two counts of robbery and one count of petty theft with a prior. The People specially alleged that defendant had one prior strike conviction, one prior serious felony conviction, and one prior prison term. After a one-day bench trial, the trial court acquitted defendant one robbery charge (count 1), but convicted defendant of the second robbery charge (count 2) and petty theft with a prior (count 3). The trial court found true the allegations that defendant had one prior strike conviction, one prior serious felony conviction, and one prior prison term. Defendant agreed to proceed immediately to sentencing. Defendant asked the trial court, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, to strike defendants prior strike conviction. ( 1385, subd. (a)).

The trial court sentenced defendant as follows: As to Count II, probation is denied. [] The defendant is sentenced to the high base term of five years. The court is going to strike the strike for purposes of sentencing based on the arguments presented . . . . [] Now, as to Count III, the defendant is sentenced to one third the mid-term of eight months. That sentence is to run concurrent with the five. As to the 667.5(B) prior of one year, that one year is imposed and stayed. The stay will become permanent upon completion of the base five-year sentence. [] And as to the prior conviction within the meaning of section of [sic]667 subsection (A) subsection (1) the defendant is sentenced to five years on that conviction. That is stayed. The stay is to become permanent upon completion of five-years.

By imposing the high term of five years on count 2, imposing a concurrent sentence on count 3, striking defendants prior strike, and purporting to stay the sentence enhancements under sections 667, subdivision (a)(1) and section 667.5, subdivision (b), the trial court crafted a sentence that resulted in a five-year prison term. Having presided over both the pretrial and trial proceedings in this case, and having acted as the trier of fact at defendants trial, the trial court was in a unique position to craft a sentence it believed to be appropriate to both the defendants crime of robberyin which he stole $11.28 worth of food and medicine and inflicted no injury to the stores personneland defendants criminal record.

The trial court unquestionably erred in the means it employed to arrive at a five-year prison term. But the trial courts intent to impose a five-year prison term is manifest. A felony sentence is inherently integrated . . . under the current statutory scheme. . . . When a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited to merely striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. (People v. Burbine (2003) 106 Cal.App.4th 1250, 1258, italics added; see also People v. Navarro (2007) 40 Cal.4th 668, 681.)

Defendant is entitled to have the trial court exercise its discretion to fashion a sentence appropriate to his crime and his circumstances. In particular, the trial court should have the opportunity to determine whether to impose upon this particular defendant the five-year upper term on count 2 (robbery of $11.28 worth of food and medicine) with the knowledge that it must impose a consecutive five-year prison term for defendants prior serious felony enhancement. To direct the trial court to impose the prior serious felony enhancement without permitting the trial court to consider the other components of defendants sentence will necessarily double defendants prison sentence from five years to ten years. To do so is patently inconsistent with the trial court s intent to devise defendants sentence, and is an unwarranted usurpation of the trial courts sentencing function.

I would reverse defendants sentence in its entirety and remand the matter to permit the trial court properly to exercise its sentencing discretion.

MOSK, J.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Property line attorney.

[1] All statutory references are to the Penal Code.

[2] I wonder if the prosecution would have argued for such a sentence.