P. v. Ownes

Filed 3/28/07 P. v. Ownes CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

Defendant Tyrone Owens was convicted of second degree robbery after a court trial, based on the finding that he stole a beer from a liquor store and used force to effect his escape. This court reversed the judgment and remanded the case for the purpose of allowing the trial court to exercise its discretion on defendant's motion to represent himself in a motion for a new trial or sentencing. In this second appeal, defendant contends that the trial court again erred, this time by failing to inquire whether the parties desired a new probation report or whether defendant wished the court to view a videotape of the alleged crime. Defendant further challenges the earlier waiver of his right to a jury trial. Addressing the re-sentencing proceeding, defendant asserts ex post facto violations in the court's order that he undergo fingerprinting and DNA sampling for the state's DNA database under Penal Code section 296.[1] Defendant also calls attention to an inadvertent failure to order an amended abstract deleting reference to a stricken prison prior. We will modify the judgment and otherwise affirm.

Background

Defendant's court trial took place in July 2003 after two unsuccessful attempts to replace his trial attorney. After trial, he moved to represent himself for purposes of moving for a new trial. (Faretta v. California (1975) 422 U.S. 806, 819 [95 S.Ct. 2525].) Although the court had accepted defendant's waiver of a jury trial, it rejected his request, finding him "not capable of representing himself." We found error and remanded the matter to permit the court to exercise its discretion on defendant's Faretta motion.

At the sentencing hearing after remand, the trial court granted defendant's motion to represent himself. Defendant was then allowed to present his reasons for requesting a new trial: the court and prosecutor had failed to disclose exculpatory evidence, the court had excluded a surveillance videotape which would have demonstrated his innocence, and his trial counsel had induced him to waive a jury by falsely promising to introduce the videotape. Consequently, defendant argued, he was deprived of an effective defense at trial.

The prosecutor represented that neither he nor defense counsel had introduced the videotape because the photographs produced from the video recording had captured all of the events that day. The trial court denied the motion. It found that the photographs, together with the eyewitness testimony of the store owner, were sufficient to convict defendant. Noting that defendant was statutorily ineligible for probation, the court again sentenced defendant to the lower term of two years in prison, doubled under the three strikes law ( 1170.12;  667, subds. (b)-(i)), and imposed a consecutive five-year term under section 667, subdivision (a), for a total of nine years. As it had on the previous occasion, the court struck a one-year enhancement under section 667.5, subdivision (b), but it corrected the number of credits defendant had acquired for time served. The court also ordered defendant to provide a blood sample, a saliva sample, and fingerprints pursuant to section 296.

Discussion

1. Resentencing Hearing

Defendant first asserts error in the court's failure to ask him whether there was any legal cause why judgment should not be pronounced, consistently with section 1200. This statute provides: "When the defendant appears for judgment he must be informed by the Court, or by the Clerk, under its direction, of the nature of the charge against him and of his plea, and the verdict, if any thereon, and must be asked whether he has any legal cause to show why judgment should not be pronounced against him." However, defendant, acting as his own counsel, failed to call the court's attention to the omission and therefore waived his assertion of error. (People v. Williams (1958) 155 Cal.App.2d 328, 333.)

Furthermore, any error is not subject to reversal if it is "only an error of form and not prejudicial." (In re Grayson (1966) 242 Cal.App.2d 110, 115; see also People v. Lucero (2000) 23 Cal.4th 692, 718 [finding no authority for holding that trial court must, on its own initiative, offer the defendant allocution].) Here defendant offers no facts that would compel a finding of prejudice. (Cf. People v. Rocha (1955) 130 Cal.App.2d 656, 663.) In light of the history of the case, there is no basis for concluding that defendant would have made a Romero motion (People v. Superior Court (Romero) (1996) 13 Cal.4th 497) or that the court would have properly granted such a motion and dismissed the prior "strike." No other basis for reducing his sentence exists, as defendant concedes that he received the lower term and a mandatory five-year enhancement under section 667, subdivision (a)(1). We conclude, therefore, that no actual prejudice resulted from the presumed error.

We further find no ground for reversal in the court's failure to ask "whether the parties desired an updated probation report or whether they would stipulate to proceed without one." Defendant cites no authority mandating such an invitation. On the contrary, it was incumbent upon defendant to take the initiative in requesting a supplemental report or to object when none was solicited. (People v. Llamas (1998) 67 Cal.App.4th 35, 39.) "A defendant should not be allowed to stand silent when the court proceeds without a supplemental probation report, gamble that a trial court will impose a lesser term of imprisonment and then urge reversal for the failure to obtain the report without being required to make some showing that he was prejudiced thereby." (People v. Begnaud (1991) 235 Cal.App.3d 1548, 1556, fn 7.)

2. Motion for a New Trial

Defendant testified at his trial in July 2003. During cross-examination by the prosecutor, defendant said that he went to the store to buy a beer, but then he realized he did not have enough money, so he changed his mind. He did not steal a beer, he did not recall looking at sunglasses, and he did not recall looking over his shoulder to see who was in the store. He said that the videotape would show exactly what he did, which was consistent with his testimony. The videotape was never introduced into evidence, however.

Defendant now contends that his original waiver of a jury trial was not knowing, intelligent, and voluntary, and the judgment must therefore be reversed. This claim is not made in the context of an assertion of abuse of discretion in denying defendant's motion for a new trial, but is introduced as a self-contained issue separate from the failure to play the videotape. This issue should have been raised in H027124 and is not properly before us in this second appeal.

Defendant did raise a cognizable ground in support of his motion for a new trial, however. At the hearing he asserted that he was denied a fair trial because (a) the prosecutor failed to disclose (unspecified) exculpatory evidence; and (b) the trial court had excluded the surveillance videotape, thereby depriving him of his right to present a defense. When invited to comment further, defendant added that he had waived his right to a jury trial "in duress." Defendant then explained that "one of the main reasons"and later, "the reason"-- he had waived the jury was that the court had assured him that if there was a videotape, then he had "a leg up." He had the impression, reinforced by his attorney, that the videotape would be played at his court trial. If he had known that the videotape would not be played, he would not have waived the jury.[2]

Defendant did not specify what evidence the prosecutor had failed to disclose, nor does he complain of such conduct on appeal. The focus of the assertion of error below was counsel's failure to introduce the videotape into evidence at the court trial. On appeal, he complains of the trial court's failure at the hearing on the new-trial motion "to ask one simple question, to wit, 'Mr. Owens, would you like me to watch the videotape now?' " Anticipating the People's forfeiture argument, defendant acknowledges that he did not ask the court to watch the videotape, but he insists that the lack of the inquiry constituted an abuse of discretion. He also asserts a due process violation in the trial court's evaluation of the trial evidence: According to defendant, the court "erroneously viewed the evidence presented at trial from the perspective of an appellate court, not the perspective of a judge sitting as a '13th juror.' "

As the People point out, however, the court was under no obligation to make an affirmative offer to watch the video in the absence of a request. Even if it should have interpreted defendant's complaint as a request to rectify the omission of this assertedly exculpatory evidence, defendant did not object when the court failed to suggest that it watch the videotape. The court impliedly rejected the factual assertions, which are indeed unsupported by the record, that the evidence had been withheld by the prosecutor or excluded by the court at trial. The prosecutor explained that neither he nor trial counsel had introduced the videotape because the still photographs, which had been created from the video itself, had "captured all of it on the video." In addition, trial counsel had previously advised the court that he had resisted playing the videotape at trial because it "was not exonerating for Mr. Owens."

"A trial court's ruling on a motion for new trial is so completely within that court's discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion." (People v. Hayes (1999) 21 Cal.4th 1211, 1260-1261; People v. Williams (1988) 45 Cal.3d 1268, 1318; People v. Lewis (2006) 39 Cal.4th 970, 1063.) In this case, no manifest or unmistakable abuse of discretion appears. Having found the videotape unnecessary to an effective defense, and having heard the evidence as factfinder at trial, the court did not err in finding sufficient evidence to support its previous finding of guilt.

We further disagree with defendant that the trial court inappropriately assumed the role of an appellate court merely because it agreed with our holding in H027124 that the evidence presented at trial was sufficient to sustain the conviction without the videotape. The record does not indicate that the court went beyond its function of determining whether sufficient credible evidence supported the verdict. (People v. Davis (1995) 10 Cal.4th 463, 523-524.) The trial court's function is to consider the probative force of the evidence and satisfy itself that the evidence as a whole is sufficient to sustain the verdict, while guided by the presumption that the verdict was correct. (People v. Robarge (1953) 41 Cal.2d 628, 633; People v. Taylor (1993) 19 Cal.App.4th 836, 843.) "This duty must be contrasted with that of an appellate court which must resolve all conflicts in favor of the judgment; the trial court must give the defendant the benefit of its independent conclusion as to the sufficiency of the credible evidence." (People v. Redmond (1969) 71 Cal.2d 745, 759-760.) The record does not permit the inference that the trial court abandoned this duty. Nor does it reveal error comparable to People v. Redmond, supra, where the trial judge gave the pro per defendant misleading advice which prevented the defendant from arguing insufficiency of the evidence in his motion for a new trial. (Ibid.) Reversal is not required on this ground.

3. Ex Post Facto Order

At the sentencing hearing upon remand, the trial court ordered defendant to provide a blood sample, a saliva sample, and fingerprints pursuant to section 296. Defendant contends that this was an ex post facto order in violation of article 1, section 10 of the United States Constitution and article I, section 9 of the California Constitution. He points out that when he committed his crime in 2003, section 296 did not list second degree robbery as one of the predicate offenses requiring specimens, samples, and print impressions. It was only with the 2004 enactment of Proposition 69 that the statute was amended to encompass "any felony offense," and the amendment was not expressly made retroactive. Defendant contends that the amendment "makes more burdensome the punishment for [the] crime, after its commission," contrary to Collins v. Youngblood (1990) 497 U.S. 37, 42 [110 S.Ct. 2715].)

People v. Espana (2006) 137 Cal.App.4th 549 is instructive on this issue. There the appellate court held that the defendant had been improperly ordered to provide blood and saliva samples because section 296 did not apply to convictions of second degree robbery. Before the case returned to the trial court, however, Proposition 69 was passed. The trial court rejected the defendant's request to return his DNA samples and expunge his test results, finding no ex post facto violation. The Fourth District, Division Three, agreed, observing that removal of the defendant's DNA from the databank would be an idle act, since section 296.1 would require a new sample in any event. Neither section 296 nor section 296.1 was unconstitutional; the latter was merely a "timing provision that specifies the time when a prisoner must submit a DNA sample . . . . " (Id. at p. 554.)

In People v. Travis (2006) 139 Cal.App.4th 1271, the First District more directly addressed the ex post facto argument raised in the case before us. The defendant there contended that collecting DNA samples from him increased his punishment because his offense had taken place in 2001, before Proposition 69 amended the statute. The appellate court disagreed, noting that the ex post facto proscription " 'does not prohibit all increased burdens; it only prohibits more burdensome punishment.' " (Id. at p. 1294, quoting People v. Acuna (2000) 77 Cal.App.4th 1056, 1059.) The court further noted that a statute is considered nonpenal if it imposes a disability to accomplish a governmental purpose other than punishment. Here, the DNA sample collection law was enacted not to punish convicted felons, "but instead to establish a DNA database to assist in the identification, arrest and prosecution of criminals." (Id. at p. 1295.) Thus, the DNA testing requirement "may constitute a disadvantage or burden, but the statute [neither was] intended to nor does inflict punishment for commission of the crime." (Ibid.)

We agree with the reasoning and conclusion of the Travis court and reach the same result here. The requirement that defendant submit to fingerprinting and DNA testing is not punishment and therefore does not offend the ex post facto clauses of the United States and California Constitutions.

4. Abstract of Judgment

At the original sentencing hearing in H027124 the court struck a one-year sentence enhancement for a section 667.5, subdivision (b), prior prison term. In the disposition of the appeal in H027124 we directed the trial court to file an amended abstract of judgment deleting a reference to that enhancement. At the hearing on remand, the trial court again struck the enhancement under section 1385, but the subsequent abstract of judgment again mentioned the stricken prior. We agree with the parties that the judgment must be modified to permit the court to order the amendment of the abstract.

Disposition

The judgment is modified only to add an order requiring the abstract of judgment to be formally amended to delete any reference to the stricken section 667.5 enhancement. An amended abstract of judgment shall be forwarded to the Department of Corrections. As so modified, the judgment is affirmed.

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ELIA, J.

WE CONCUR:

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RUSHING, P. J.

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PREMO, J.

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

[2] This assertion was consistent with his statement at the initial hearing in October 2003 on his motion to discharge counsel and represent himself. At that time he told the judge that he "was lied to," that his attorney had told him that if he waived the jury, then the videotape would be brought into evidence.