P. v. Rodriguez

Filed 10/19/06 P. v. Rodriguez CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed and remanded, with directions.

John L. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., and Lilia E. Garcia, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Oscar Rodriguez of one count of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1); all unlabeled statutory citations are to this code.) Defendant contends the trial court’s pretrial comments to potential jurors infected the venire and the court violated his right to an impartial jury by denying his motion to dismiss the panel. Defendant also claims the trial court’s failure to give a unanimity instruction created a risk the jury convicted him without agreeing which of his acts constituted assault. Finally, the Attorney General agrees with defendant’s claim that the abstract of judgment is erroneous and the trial court erred by not awarding him credit for good conduct. As we discuss below, we find defendant’s substantive contentions unpersuasive, but remand for correction of the abstract of judgment and consideration of good conduct credits.

I

FACTUAL AND PROCEDURAL BACKGROUND

Sandra Jimenez (Sandra) paid her landlord Gustavo Jimenez (Jimenez, no relation) half of the monthly rent on September 1, 2003, and agreed to either move out or pay the balance by the middle of the month. Hearing nothing from his tenant by September 19, Jimenez went to Sandra’s apartment to collect the remainder of the rent. Defendant answered the door holding an 11-inch-long kitchen knife. He became angry when Jimenez asked for the rent, informed Jimenez he would not give him any money, and ordered him to “[g]et out of here.” Defendant then lunged at Jimenez with the knife, swinging his left arm once from left to right, stabbing at Jimenez’s stomach. Jimenez, who stood about three feet away from defendant, jumped backwards to avoid being stabbed. He admitted at trial the knife did not come close to him.

Jimenez called the police and an officer came to investigate. The officer received defendant’s permission to enter the apartment, where she found the 11-inch steak knife on the kitchen counter. Officers arrested defendant after Jimenez identified the knife as the one defendant used during their altercation.

The district attorney charged defendant with one count of assault with a deadly weapon. The information alleged defendant suffered two prior serious felony convictions that qualified as strikes under the Three Strikes law, and that defendant served separate prison terms and had not been free for a five-year period preceding his alleged commission of the current offense.

Trial commenced on the assault charge. During voir dire, the trial court explained to the jury panel the importance of interpreters in trial proceedings, referencing Midnight Express, a movie in which an American is arrested in Turkey for smuggling heroin and then convicted in a Turkish court without realizing he was on trial due to the language barrier. The trial court described the American in the movie as being “caught literally red handed” with the heroin. The court opined that even though “you had no doubt that he was guilty of the offense, the whole process was unfair.” Fairness in trial proceedings, the court explained, requires a certified court interpreter for defendants who do not speak English. The court instructed the jury not to read anything into defendant’s use of a court certified interpreter in the present case.

Defendant objected to the court’s remarks and moved to dismiss the entire venire panel, arguing the court suggested to the jurors that, like the defendant in the movie, he had been caught “red handed” and was guilty. The court denied the motion to dismiss the entire panel, but admonished the jury as follows: “Ladies and gentlemen, at

no time when I used the example of that movie was I trying to suggest in any way that a trial is simply a formality for guilty people. The defendant is presumed innocent until the contrary is shown and the court has heard no evidence and you have heard no evidence in regard to any events. So the defendant is presumed innocent and is innocent until the prosecutor proves beyond a reasonable doubt those facts to you. I was using that movie only as an example of that situation.”

The jury found defendant guilty of assault with a deadly weapon. Defendant waived jury trial for his prior conviction allegations, and the court found true the allegations that defendant previously had been convicted of two serious felonies for which he served separate prison terms. The court sentenced defendant to 25 years for his assault conviction under the Three Strikes law, plus two consecutive five-year terms for each prior serious felony. During sentencing, the court awarded defendant 637 days for time served, but failed to award defendant good conduct credits. Defendant now appeals.

II

DISCUSSION

A. No Error in Denying Defendant’s Motion to Excuse the Jury Panel

1. The Trial Court’s Curative Instruction Eliminated Any Prejudice

Rodriguez attacks the trial court’s comments concerning the movie, Midnight Express, as constitutional error. We conclude the trial court did not violate defendant’s right to an impartial jury trial when it denied his motion to excuse the entire jury panel. Even assuming the court’s comments to the jury amounted to error, the court’s subsequent admonition eliminated any prejudice and rendered any potential error harmless.

The constitution empowers trial judges to “make any comment on the evidence . . . as . . . is necessary for the proper determination of the cause.” (Cal. Const., art. VI, §10.) As a corollary to this provision, the court may make observations it deems helpful during jury selection. (People v. Slaughter (2002) 27 Cal.4th 1187, 1217-1218.) But the right to a fair trial remains paramount. Thus, any commentary must not irreparably prejudice either party; a judge’s comments must be “accurate, temperate, nonargumentative, and scrupulously fair.” (People v. Rodriguez (1986) 42 Cal.3d 730, 766 (Rodriguez).) The reviewing court does not draw lines between proper and improper judicial comment in the abstract; rather, each case turns on the “‘context and extent of the comments and the peculiar circumstances under which comment is made.’” (People v. Cook (1983) 33 Cal.3d 400, 408, disapproved on another ground in Rodriguez, supra, 42 Cal.3d at p. 766.) A judge’s comments justify a new trial “only if the record shows actual bias or leaves an abiding impression that the jury perceived an appearance of advocacy or partiality” for one party. (United States v. Laurins (9th Cir. 1988) 857 F.2d 529, 537.) In other words, the defendant must suffer prejudice from the misconduct. For example, judicial misconduct warrants a mistrial where an “extremely high level of interference” creates a “pervasive climate of partiality or unfairness.” (United States v. DeLuca (9th Cir. 1982) 692 F.2d 1277, 1282.)

Relying on People v. Mello (2002) 97 Cal.App.4th 511 (Mello) and People v. Abbaszadeh (2003) 106 Cal.App.4th 642 (Abbaszadeh), defendant argues the court’s Midnight Express allusion rendered his trial fundamentally unfair. Mello and Abbaszadeh are inapposite. In each, the trial judge instructed prospective jurors that, if they harbored any racial biases, they should lie under oath during voir dire to secure their dismissal from the jury panel for a less offensive reason. The reviewing courts condemned this deceitful stratagem as judicial misconduct that “set the wrong tone for the jurors’ compliance with all of their important obligations.” (Mello, at p. 519; see Abbaszadeh, at p. 649.) These cases are egregious examples of judicial misconduct, and are not analogous to the court’s comments in the instant case.

Here, the court simply stressed to the jury the importance of court certified interpreters to the fairness of the proceedings, and any implication regarding the defendant’s guilt was too attenuated and remote to require reversal. The court recounted a fictional story entirely unrelated to the case at hand to demonstrate the unfairness of trial without an interpreter. Even if a juror somehow inferred the court’s comments spoke impliedly and covertly to defendant’s guilt, we must presume the court’s immediate admonishment cured such a misinterpretation. (See United States v. Milner (9th Cir. 1992) 962 F.2d 908 [court’s comments about defendant being a security risk did not prejudice defendant because court gave a curative instruction]; United States v. Valencia (9th Cir. 1992) 977 F.2d 594 [absence of curative instruction required reversal where comments could be construed as advocacy for the prosecution].) The trial court admonished the jury its comments had no bearing on the defendant’s guilt or innocence, and reminded the jurors no evidence had yet been presented. Additionally, the court instructed the jurors at length on the burden of proof during both voir dire and final jury instructions. The court also gave the pattern instruction entitled “Jury not to take cue from the judge.”[1] (Initial capitalization omitted.) In light of the court’s speedy admonishment and thorough instructions, we agree with the Attorney General the jury did not stray down the path defendant imagines.

Defendant asserts that limiting instructions are not always effective to remedy judicial error. We agree. In this instance, however, the trial court’s instruction cured any potential prejudice to the defendant. Here, whether defendant suffered prejudice from the court’s comments depended on the inferences the jury drew from these comments. The most reasonable interpretation of the court’s remarks is that the jury should not convict merely because a defendant required an interpreter. Drawing the most negative inference, defendant suggests the court conveyed the message he was as guilty as the fictional heroin smuggler, though he was not caught “red handed.” In this scenario, the court intended the trial as a mere formality to uphold, in the court’s words, the “appearance and fairness of the proceedings,” while telegraphing defendant’s guilt to the jury. But this conclusion does not square with the court’s clarification of its comments or its instructions on the presentation of evidence, the jury’s duty to weigh the evidence without any cue from the court, and the burden of proof. Predictably, when the court denied her motion to dismiss, defense counsel then asked for the admonition. This suggests defense counsel understood that such an instruction could eliminate any potential prejudice to her client.

2. The Court’s Comments Do Not Require Automatic Reversal

Defendant contends the implication of his guilt in the movie reference was so strong that no clarification could remove the taint, requiring automatic reversal. We disagree. We conclude the court’s admonition and instructions rendered any potential error harmless.

In Chapman v. California (1967) 386 U.S. 18, the Supreme Court rejected the view that constitutional errors in a criminal trial always necessitate reversal. Instead, the court permitted the state to show “beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” (Id. at p. 24.) Most constitutional errors are subject to this harmless error analysis. (Arizona v. Fulminante (1991) 499 U.S. 279, 306-307.) Conversely, some errors mandate automatic reversal of the conviction, such as deprivation of right to counsel (Gideon v. Wainwright (1963) 372 U.S. 335), trial by a biased judge (Tumey v. State of Ohio (1927) 273 U.S. 510 (Tumey)), or denial of the right to self-representation (McKaskle v. Wiggins (1984) 465 U.S. 168). Errors of this nature are not harmless because they “affect[] the framework within which the trial proceeds . . . .” (Arizona v. Fulminante, supra, 499 U.S. at p. 310.) “Mello error,” for example, “denies a defendant federal and state due process and amounts to structural error, reversible per se, because it results in ‘voir dire so inadequate as to render the trial fundamentally unfair.’” (Abbaszadeh, supra, 106 Cal.App.4th at p. 649.)

Here, in contrast, the court’s comments did not render voir dire inadequate or infect the trial with unfairness. Nothing the court said prompted the jurors to give dishonest answers to voir dire questions. Defendant does not suggest the court’s comments betrayed actual bias (see Tumey, supra, 273 U.S. 510), or that the court’s clarification was a sham intended to reinforce rather then dispel any adverse inference. We are left then with the comments themselves, and we are confident the brief movie allusion, made in the context of extolling the virtues of court certified interpreters, did not have the “electric effect” required to conclude the jury disobeyed the court’s admonition and instructions. (People v. Brophy (1954) 122 Cal.App.2d 638, 652.) The jury could easily thrust away any negative inference and abide by the court’s admonition and instructions precisely because the movie facts -- a suspect is caught “red handed” on the tarmac with heroin strapped to his body -- were so different from the facts here. As the court instructed the jury, the prosecution had the burden of proving beyond a reasonable doubt every element of the crime. In sum, no structural error occurred because of the court’s curative admonition and instructions, and therefore defendant’s argument is without merit.

B. The Trial Court Had No Sua Sponte Duty to Give a Unanimity Instruction

Defendant argues the trial court overlooked a sua sponte duty to instruct the jury they had to agree unanimously on which of his acts, if any, constituted assault with a deadly weapon. The general rule is the jury must unanimously “agree upon the commission of the same act in order to convict a defendant of a charged offense.” (People v. Masten (1982) 137 Cal.App.3d 579, 588 disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 600, fn. 8.) The unanimity requirement safeguards constitutional principles: a criminal defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged. (People v. Jones (1990) 51 Cal.3d 294, 305, 321; see also Cal. Const., art. I, § 16.) Defendant argues the trial court should have instructed the jury with CALJIC No. 17.01, as set out in the margin.[2]

The Attorney General contends a unanimity instruction was not required because “the prosecution evidence focused on appellant’s singular act of lunging at Jimenez with the kitchen knife.” But the record plainly shows the prosecutor also argued an earlier act could form the basis of the assault, i.e., defendant’s warning to Jimenez to “get out of here” while holding a knife in his hand. The prosecutor correctly informed the jury: “Now [a] conditional threat, ladies and gentlemen, is an assault.” (See People v. Lipscomb (1993) 17 Cal.App.4th 564, 570, citing the “oft-quoted” People v. McMakin (1857) 8 Cal. 547, 548-549 [where defendant’s “intent is immediately to enforce performance by violence,” a conditional threat “is as much an assault as if he had actually struck, or shot, at the other party, and missed him”].)

Nevertheless, although the threat and the lunge here constituted two separate acts, the latter followed so closely on the heels of the former that the trial court could properly conclude the continuous course of conduct doctrine applied. This exception dictates that no unanimity instruction is required when the defendant’s acts “virtually occurred simultaneously with each other and were ‘so closely connected in time that they in effect formed part of one transaction’”; consequently, there is no need for a unanimity instruction because the “jurors would have no rational reason to pick out one act to believe, while disbelieving the other.” (People v. Leffel (1988) 203 Cal.App.3d 575, 587 (Leffel).) Put another way, the continuous course of conduct exception applies “where the acts testified to are so closely related in time and place that the jurors reasonably must either accept or reject the victim’s testimony in toto . . . .” (People v. Gonzalez (1983) 141 Cal.App.3d 786, 791, fn. 5, disagreed with on other grounds in People v. Kurtzman (1988) 46 Cal.3d 322, 330.)

Defendant asserts he raised “multiple defenses to the multiple incidents for which he had been charged.” According to defendant, a unanimity instruction was therefore required to prevent the possibility some jurors believed he issued the conditional threat but made no lunge, while others might have believed he lunged without making a prior threat, resulting in an unconstitutional conviction by cobbling the two separate acts together to form one criminal offense. (See People v. Deletto (1983) 147 Cal.App.3d 458, 471 [“without the instruction some jurors could believe defendant committed one act and some jurors could conclude he committed another”]; see People v. Laport (1987) 189 Cal.App.3d 281, 283-284 [noting unanimity problem is acute where defendant tenders separate defenses to each act].)

Notably, defendant fails to specify in his brief what his separate defenses to the lunge and the threat were. Counsel’s record citations do not support the claim of separate defenses. Rather, while defendant did not testify, defense counsel proffered an innocent narrative that accounted for both acts: defendant did not know it was the manager knocking at the door; he was cooking in the kitchen and it was only coincidental he answered the knock with a knife in his hand rather than, say, a spatula; the manager misinterpreted his motion with the knife as threatening when it was not (presumably the same could be said for any words exchanged); and in these circumstances, the prosecution failed to meet its burden because it was not wholly unreasonable to doubt defendant harbored an assaultive intent.

Even defense counsel’s account reveals this was a classic continuous course of conduct situation where, given alleged acts of a conditional threat and a lunge “so closely related in time and place[,] . . . the jurors reasonably must either accept or reject the victim’s testimony in toto . . . .” (People v. Gonzalez, supra, 141 Cal.App.3d at p. 791, fn. 5.) In rejecting defense counsel’s version, the jury manifestly credited the victim’s testimony in toto. In sum, there were no grounds for a unanimity instruction because -- as to the conditional threat and the immediate lunge -- the jury simply had “no rational reason to pick out one act to believe, while disbelieving the other.” (Leffel, supra, 203 Cal.App.3d at p. 587.) Accordingly, the trial court did not err in failing to give the instruction. (People v. Davis (2005) 36 Cal.4th 510, 562 [unanimity instruction not required where “‘there was no evidence . . . from which the jury could have found defendant was guilty of’ the crime based on one act but not the other”].)

C. Remand Is Required for the Trial Court to Clarify the Sentence and to

Award Defendant Presentence Conduct Credit

Defendant contends sentencing error occurred because the abstract of judgment is erroneous and because the court failed to determine his eligibility for presentence conduct credit. The Attorney General agrees we must remand this case to the trial court to determine these issues.

At the sentencing hearing, the trial court noted it could impose either five-year prison term enhancements under section 667, subdivision (a), or one-year enhancements under section 667.5, subdivision (b), but not both. The court sentenced the defendant to 25 years to life as to count one (the assault charge), and imposed two five-year prison term enhancements for each of the defendant’s prior convictions. The court failed to refer to the one-year enhancements. Nonetheless, the court minutes state the court imposed the one-year enhancements but then ordered them stricken, while the abstract of judgment shows the court “stayed” the one-year enhancements. While we surmise the trial court imposed the five-year prison term enhancements instead of the one-year enhancements, the ambiguity in the record necessitates remand. Where the record is unclear on the court’s treatment of the one-year prison term enhancements, it is appropriate to “remand the matter to permit the trial court to clarify” the sentence. (People v. Garcia (1997) 59 Cal.App.4th 834, 839; Hoffman v. Superior Court (1981) 122 Cal.App.3d 715, 724.)

The court awarded the defendant 637 days for time already served, but did not award any presentence conduct credits. We conclude defendant was entitled to presentence conduct credits under section 4019. “Good conduct” credit, as it is commonly known, is available to a defendant serving an indeterminate term. (People v. Philpot (2004) 122 Cal.App.4th 893, 907-909.) Generally, a defendant with good behavior and willingness to work will receive good conduct credit in the amount of 50 percent the actual presentence custody credit. (§ 4019, subds. (b) & (c).) The Attorney General agrees defendant’s eligibility for presentence conduct credit is not subject to a percentage reduction under the Three Strikes law pursuant to section 2933.1 or preclusion altogether under 2933.5. And the Attorney General agrees the case should be remanded “to allow the trial court to determine the appropriate presentence conduct credits under section 401[9].” Yet, on the same page, in direct contradiction to this conclusion, “[r]espondent submits that because appellant is a three strike defendant serving an indeterminate life term, he is ineligible for any presentence credits.” Whatever the Attorney General’s actual position, in People v. Thomas (1999) 21 Cal.4th 1122, 1124, our Supreme Court held that a defendant sentenced under the Three Strikes law is entitled to have presentence conduct credits calculated under section 4019, as long as the third strike is not a violent felony listed in section 667.5, subdivision (c). Because defendant’s assault is not so listed, we remand for the trial court to calculate and award presentence conduct credits.

III

DISPOSITION

We remand the matter for resentencing. In all other respects, the judgment is affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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[1] CALJIC No. 17.30, as given to the jury, 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.”

[2] CALJIC No. 17.01 provides: “The defendant is accused of having committed the crime of _______ [in Count _______]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count _______] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count _______], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict.”