P. v. Lightfoot

Filed 5/4/06 P. v. Lightfoot CA4/1

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, David Gill, Judge. Affirmed on rehearing.

A jury convicted Landria Lightfoot of two counts of burglary (Pen. Code, § 459),^[1] petty theft (§ 484), attempted petty theft (§§ 664/484), and three counts of writing a check with insufficient funds (§ 476a, subd. (a)). Lightfoot waived jury and in a bifurcated hearing the court found she had a prior strike (§§ 667, subds. (b)-(i), 1170.12, 668), and had served a prior prison term (§§ 667.5, subd. (b), 668). The court denied a motion to dismiss the prior strike and sentenced her to prison for seven years eight months.

FACTS

On May 21, 2003, Lightfoot purchased goods at three stores using checks on a companion's (Stephanie Bray) closed checking account. The three stores included Claire's Boutique in Mission Valley, Smart and Final and Rite-Aide in North Park. After waiving her Miranda rights (Miranda v. Arizona (1966) 384 U.S. 436), Lightfoot admitted she and Bray were out shopping and Lightfoot knew Bray did not have any money. Lightfoot admitted going to several stores and writing checks for Bray. When one store would not cash a check after it was checked on Telecheck, Lightfoot and Bray went to other stores that did not use Telecheck.

At Claire's Boutique, Lightfoot and Bray entered the store. Lightfoot signed a check on Bray's closed account using Bray's identification. The check bounced. The same day, Lightfoot purchased merchandise at Smart and Final on El Cajon Boulevard, again using checks from Bray's closed account. Later in the day, Lightfoot attempted to purchase merchandise at Rite-Aide on El Cajon Boulevard. She identified herself as Bray, wrote a check from the closed account, and handed it to the cashier. Lightfoot left the store without Bray's identification. She was arrested outside the store.

Bray testified that she and Lightfoot were friends. In 1999, Bray deposited $100 and opened a checking account. She never wrote checks on the account. On May 21, 2003, she had $50 cash that she used to pay a gas and electric bill. She then went shopping with Lightfoot. Bray testified that she asked Lightfoot to write checks on Bray's account because Bray did not know how to do it. She also testified that she asked Lightfoot to use her identification. She had not been notified that her checking account had been closed.

On rebuttal, Officer Sze Map testified that after he arrested Bray, she waived her Miranda rights and told him that she needed items from the store but did not have money. Bray provided Lightfoot with the checks and Bray's identification, and Bray told Lightfoot that her checking account had been closed.

DISCUSSION

Appointed appellate counsel has filed a brief setting forth the evidence in the superior court. Counsel presents no argument for reversal but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel refers to as possible but not arguable issues: (1) whether the trial court erred in elaborating on the reasonable doubt standard during preinstructions; (2) whether the trial court erred in deviating from CALJIC No. 2.90 during closing instructions; (3) whether the trial court erred in making comments during closing instructions; (4) whether the trial court erred in giving the flight instruction CALJIC No. 2.52; and (5) whether the trial court prejudged sentencing.

We granted Lightfoot permission to file a brief on her own behalf. She did not respond. On November 17, 2005, we issued the foregoing opinion. On December 13, we granted Lightfoot's motion for rehearing, granting her 30 days to file a supplemental brief. She has responded. Lightfoot contends the evidence is insufficient to establish her guilt beyond a reasonable doubt; she was denied a fair trial through admission of hearsay at trial and at the preliminary hearing; she was denied effective assistance of trial and appellate counsel; the trial court erred in imposing sentence; and she adopts the issues referred to by appellate counsel as possible but not arguable issues.

I. Proof Beyond a Reasonable Doubt

We affirm a judgment supported by substantial evidence. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Substantial evidence is evidence of legal significance, reasonable in nature, credible and of solid value. (People v. Samuel (1981) 29 Cal.3d 489, 505.) If the evidence permits a reasonable trier of fact to conclude the charged crime was committed, the opinion of a reviewing court that the circumstances may also be reconciled with a contrary finding does not warrant reversal. (See Jackson v. Virginia (1979) 443 U.S. 307, 318-319; In re Roderick P. (1972) 7 Cal.3d 801, 808-809.)

Lightfoot argues the People failed to prove her knowledge of the status of Bray's checking account. To convict Lightfoot of theft by false pretenses, or of writing a check with insufficient funds, the People had to prove Lightfoot had knowledge that Bray's checking account had insufficient funds or the account was closed when she wrote the checks. (CALJIC Nos. 14.10, 15.20.) Here, the record includes evidence that Lightfoot went with Bray to a series of stores and wrote checks identifying herself as Bray to make purchases on Bray's account knowing that Bray had no money and that what she was doing was wrong. We must review the entire record most favorably to the judgment below and presume in support of the judgment the existence of every fact the fact finder could reasonably deduce from the evidence. In determining whether the conviction is supported by substantial evidence, we must not usurp the trier of fact's assessment of credibility.

Lightfoot argues the officers' testimony was inconsistent and included hearsay. " 'Although an appellate court will not uphold a judgment or verdict based upon evidence inherently improbable, testimony which merely discloses unusual circumstances does not come within that category. [Citation.] To warrant the rejection of the statements given by a witness who has been believed by a trial court, there must exist either a physical impossibility that they are true, or their falsity must be apparent without resorting to inferences or deductions. [Citations.] Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.]' [Citations.]" (People v. Thornton (1974) 11 Cal.3d 738, 754, disapproved on other grounds in People v. Flannel (1979) 25 Cal.3d 668, 684, fn. 12.) Here, the evidence supports the jury's apparent conclusion that Lightfoot knew the checking account was closed when she cashed the checks using Bray's identification. No hearsay was relied upon at trial to prove Lightfoot's knowledge other than Lightfoot's own admission, which was admissible (Evid. Code, § 1220), and Bray's statement to Officer Map, which was also admissible (Evid. Code, §§ 1230, 1236).

II. Effective Assistance of Trial and Appellate Counsel

Lightfoot claims she was denied effective assistance of trial counsel because her trial attorney failed to adequately investigate, failed to assist at trial, was ineffective at sentencing, and her appellate counsel was ineffective. The record sheds no light on what Lightfoot's trial counsel did to investigate, or how he failed to assist in trial. "If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately raised in a petition for writ of habeas corpus. [Citation.]" (People v. Carter (2003) 30 Cal.4th 1166, 1211, citing People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Regarding Lightfoot's claim that her trial counsel was ineffective at sentencing, an appellate court is "entitled to and [does] require of a convicted defendant, that he allege with particularity the facts upon which he would have a final judgment overturned . . . ." (In re Swain (1949) 34 Cal.2d 300, 304.) "This procedural requirement does not place upon an indigent prisoner who seeks to raise questions of the denial of fundamental rights in propria persona any burden of complying with technicalities; it simply demands of him a measure of frankness in disclosing his factual situation." (In re Razutis (l950) 35 Cal.2d 532, 537.) Lightfoot provides no specifics while claiming her trial counsel was ineffective at sentencing.

Regarding Lightfoot's claim her appellate counsel was ineffective, having reviewed the file we find no issue Lightfoot's appellate counsel overlooked. Effective appellate counsel is required to "to raise crucial assignments of error, which arguably might have resulted in a reversal . . . ." (In re Smith (1970) 3 Cal.3d 192, 202-203.) We find none here.

III. The Sentence

Lightfoot argues the trial court exceeded the maximum sentence for her convictions and that the sentencing guideline scheme violated the Sixth Amendment. She is mistaken. The court chose one of the two burglary convictions as the principal term and selected the middle term as the sentence; it imposed consecutive sentences on the other burglary charge and one of the insufficient funds counts; and it imposed the prison prior as an enhancement. It stayed sentences on the remaining convictions. (§ 654.) The middle term for burglary and writing a check with insufficient funds is two years. (§§ 18, 460, subd. (b), 461, 476a, subd. (a).) A consecutive term is one-third the middle term. (§ 1170.1, subd. (a).) Because Lightfoot had a prior strike, the court was required to double these terms. (§ 667, subd. (e)(1).) The term for a prior prison term is one year. (§ 667.5, subd. (b).) The court's imposition of four years for one burglary, 16 months consecutive for the other burglary, 16 months consecutive for one of the insufficient funds counts and one year for the prison prior (a total of seven years, eight months) was proper.

Relying primarily on Apprendi v. New Jersey (2000) 530 U.S. 466 and Blakely v. Washington (2004) 542 U.S. 296, Lightfoot argues she was denied a constitutional right to have a jury determine beyond a reasonable doubt whether aggravating factors exist that justify imposition of the consecutive terms. In People v. Black (2005) 35 Cal.4th 1238, the California Supreme Court rejected this contention and stated, "the judicial factfinding that occurs when a judge exercises discretion to impose . . . consecutive terms under California law does not implicate a defendant's Sixth Amendment right to a jury trial." (Id. at p. 1244.)

IV. Issues Referred to by Appellate Counsel as

Possible but not Arguable Issues

In addition to the issue discussed above, Lightfoot adopts as a basis for appeal the following matters identified by her appellate counsel as possible by not arguable issues:

A. Elaborating on CALJIC No. 2.90

Appellate counsel asked whether the trial court erred in elaborating on the reasonable doubt standard while preinstructing the jury and deviating from CALJIC No. 2.90 during closing instructions. While preinstructing the jury the court said:

"As the accused in this case, Ms. Lightfoot is presumed to be innocent until the contrary is proved, and in the case of any reasonable doubt whether her guilt has been proved to you by the evidence and under the applicable law, she is of course entitled to and must receive your verdict of not guilty.

"The presumption has the effect of placing solely on the People the burden of proving her guilty beyond a reasonable doubt. The standard is beyond a reasonable doubt, not beyond all possible or imaginary doubt because, after all, human affairs and human events are always open to some possible or imaginary doubt.

"Reasonable doubt is that state of the case where after all the evidence has been presented and you have thoroughly, thoughtfully, objectively, weighed, compared, evaluated, assessed that evidence, your mind is left in that condition you cannot say you feel an abiding conviction of the truth of any particular charge. So it's the absence of or the lack of an abiding conviction that we define as a reasonable doubt."

During closing instructions, the court said:

"As the accused in this case [is] presumed to be innocent, in the case of any reasonable doubt whether the prosecution has carried its burden of proving beyond a reasonable doubt the truth of each of the charges against Ms. Lightfoot, she is entitled to and must receive your verdict of not guilty. So the presumption of innocence does have the effect of placing solely on the prosecution the burden of proving the truth of the charges which they are prosecuting against her.

"The burden is proof beyond a reasonable doubt. The law recognizes that human affairs, human events are always open to some possible or imaginary doubt. So again, the standard is proof beyond a reasonable doubt.

"As we defined earlier we define reasonable doubt as the absence of or the lack of an abiding conviction of the truth of a particular charge. So if after all you have carefully critically evaluated all of the evidence which relates to a particular charge, and if after doing so you are left in that state of mind that you cannot say you have an abiding conviction of the truth of that particular charge, then by definition you have a reasonable doubt, the People have not carried their burden, the burden has not been overcome and you must find Ms. Lightfoot not guilty of that particular charge."

CALJIC No. 2.90 provides:

"A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.

"Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."

The difference between what the court said and CALJIC No. 2.90 is minimal. The modification did not deny Lightfoot a substantial right.

B. Comments During Closing Instructions

Defense counsel asks whether the trial court erred in failing to give CALJIC No. 17.32 after the court commented on the evidence during instructions. The court said:

"I expect [the prosecutor] will further address that in his summation, because he may suggest to you that the evidence proves two acts completed upon which you might find her guilty of count three . . . .

"But you may be urged to find that there was some conduct here that you should consider to be flight."

CALJIC No. 17.32 provides:

"I have not intended by anything I have said or done, or by any questions that I may have asked, to suggest what you should find to be the facts, or that I believe or disbelieve any witness.

"If anything I have done or said has seemed to so indicate, disregard it and form your own conclusion.

"At this time, however, and for the purpose of assisting you in properly deciding this case, I will comment on the evidence and the testimony and believability of any witness.

"My comments are intended to be advisory only and are not binding on you as you must be the exclusive judges of the facts and of the believability of the witnesses.

"You may disregard any or all of my comments if they do not coincide with your views of the evidence and the believability of the witnesses."

Here, the trial court included in instructions CALJIC No. 17.30 that provides:

"I have not intended by anything I have said or done, or by any questions that I may have asked, or by any ruling I may have made, to intimate or suggest what you should find to be the facts, or that I believe or disbelieve any witness.

"If anything I have done or said has seemed to so indicate, you will disregard it and form your own conclusion."

The trial court's comments took place in the course of 23 pages of instructions. Through the comment, the court apparently sought to explain anticipated argument. It did not comment on the credibility of witnesses. Lightfoot did not object. Moreover, even if the trial court should have given CALJIC No. 17.32, it is not reasonably probable a different result would have occurred had the CALJIC section been given. If error occurred in failing to give CALJIC No. 17.32, it was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836.) The court's comment on the evidence did not deprive Lightfoot of a substantial right.

C. The Flight Instruction

Lightfoot's appellate counsel asks whether inclusion of CALJIC No. 2.52 was error. CALJIC No. 2.52 provides:

"The flight of a person immediately after the commission of a crime is not sufficient in itself to establish her guilt, but is a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide."

Appellate counsel notes that the flight instruction requires more than a mere leaving the scene of a crime. However, since the record does not reflect that Lightfoot objected to the instruction in the trial court, she cannot do so for the first time on appeal. And, in any event, inclusion of the flight instruction did not deny Lightfoot a substantial right.

D. Prejudged Sentencing

After Lightfoot was convicted of the crimes, the court permitted her to remain free from custody on her own recognizance. It advised her to make arrangements for placement of her children because it believed it was going to sentence her to prison. Appellate counsel asks whether the trial court erred in prejudging sentence when it made this comment. During the past 16 years, Lightfoot has been repeatedly convicted of crimes. She has been placed on probation nine times and sentenced to prison once.

Appellate counsel cites no authority accompanying its question. In People v. Stevens (1988) 205 Cal.App.3d 1452, the trial court initially imposed the two-year middle term on the base crime with consecutive eight-month terms on six other crimes for a total term of six years. After reversal for erroneously imposing a prison term that exceeded double the base term (former § 1170.1, subd. (g)), the trial court imposed a six-year term but sentenced the defendant to the three-year upper term for the base crime and a total of three years consecutive on other crimes. The reviewing court affirmed saying:

"A judge's subjective determination of the value of a case and the appropriate aggregate sentence, based on the judge's experiences with prior cases and the record in the defendant's case, cannot be ignored. A judge's subjective belief regarding the length of the sentence to be imposed is not improper as long as it is channeled by the guided discretion outlined in the myriad of statutory sentencing criteria." (People v. Stevens, supra, 205 Cal.App.3d at p. 1457.)

This principle applies here. The trial court may have had a subjective belief that it was going to sentence Lightfoot to prison but it imposed sentence within the applicable guidelines. It did not err in doing so.

A review of the entire record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues referred to pursuant to Anders v. California, supra, 386 U.S. 738, and the issues raised by Lightfoot, has disclosed no reasonably arguable appellate issue. Competent counsel has represented Lightfoot on this appeal.

DISPOSITION

The judgment is affirmed.

HALLER, J.

WE CONCUR:

HUFFMAN, Acting P.J.

O'ROURKE, J.

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^[1] All statutory references are to the Penal Code unless otherwise specified.