P. v. Smith

Filed 10/9/07 P. v. Smith CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Stephen H. Ashworth, Judge. Affirmed in part and reversed in part with directions.

Warren P. Robinson, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Jeffrey J. Koch, Supervising Deputy Attorney General, and Kelley Johnson, Deputy Attorney General, for Plaintiff and Respondent.

I. INTRODUCTION

A jury convicted defendant of one count of the sale of cocaine base (Health & Saf. Code,  11352, subd. (a)) and one count of the sale of methamphetamine (Health & Saf. Code,  11379, subd. (a)). In a bifurcated court trial, the court found true allegations that defendant had four prior convictions under Penal Code section 667.5, subdivision (b). Defendant was sentenced to state prison for an aggravated term of five years on count 1 and the middle term of three years on count 2. The sentence on count 2 was to be served concurrently with the sentence on count 1. The court imposed a consecutive one-year term for each of the four prior convictions, resulting in an aggregate sentence of nine years.

Defendant makes the following contentions on appeal: (1) he was denied his right to a fair trial when a police officer testified before the jury that defendant was on parole; (2) the court erred by using defendants prior record to both aggravate the principle term and impose the four enhancement terms; (3) if defendant waived his claim of error as to the dual use of his prior convictions, then trial counsel rendered ineffective assistance; and (4) by relying upon defendants parole violations in imposing the aggravated term on count 1, the aggravated sentence violates the Sixth Amendment under Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham).

II. SUMMARY OF FACTS

On August 25, 2005, at approximately 6:00 p.m., San Bernardino County Deputy Sheriffs Arthur Lechuga and Robert Pleasant were working undercover near Forest Park, on D Street and 7th Street in Victorville. Pleasant drove an unmarked car to the park and waved the defendant over to the car.

Defendant approached the car and Pleasant asked him for some smoke or weed, both street terms for marijuana. Defendant said he would have to go to another location to get some. Pleasant than asked him for a dub, which is a street term for $20 worth of cocaine. Defendant replied that he could get some and Pleasant handed him a $20 bill. Defendant then went to the park restroom and met with several other men. Defendant was in the restroom for approximately five minutes, then came back to the deputies car and handed them a usable quantity of cocaine base, also known as rock cocaine.

Lechuga then asked defendant if he could get him some speed, also known as methamphetamine. Defendant said they would have to go around the corner to get it. Defendant got into the front passenger seat of the car and directed the deputies to the 5th Street and B Street area in Victorville. Lechuga handed defendant a $20 bill and then defendant went into a nearby residence. About five minutes later he returned, got back in the car, and handed Lechuga a paper bindle containing a usable quantity of methamphetamine. As the deputies began to drive away, uniformed officers pulled the deputies car over and arrested defendant. Upon searching the car, an arresting deputy found a metal pipe on the floorboard where defendant was sitting. The deputies did not recover any currency from the defendant.

III. ANALYSIS

A. The Trial Court Did Not Abuse Its Discretion in Refusing to Grant Defendants Motion for a Mistrial

1. Background

Detective Patrick OBrien of the San Bernardino County Sheriffs Department, was one of the deputies who pulled over the undercover vehicle and arrested defendant. OBrien testified that after he made contact with defendant, he asked him to get out of the vehicle, started talking to him, [and] found out he was on parole. Outside of the jurys presence, defense counsel immediately moved for a mistrial. The court said that it would try and cure the statement that defendant was on parole with an admonition to the jury, and if the jury could not disregard OBriens statement, it would grant the mistrial. The trial court read the following admonition to the jury:

[T]he witness testified that he found out the defendant was on parole. What Im going to ask you to do is completely disregard it. Im going to strike it. It was improper. Its prejudicial. So what I need to know from all of you is, can you completely disregard that testimony? Is there anybody that feels that they cannot disregard it and feels that that would play any part in your decision-making in this case? Because as you know, it has nothing to do with the facts in the case. Any problem with that? [] Well, everybody seems to be indicating no problem. If you find as you go along that you cant put it out of your mind and it would affect you in your decision-making, will you let me know? And no one will be too shy to let me know; right? The jurors collectively said, Right.

2. Analysis

The standard of review for a trial courts ruling for a mistrial motion is whether there was an abuse of discretion, and such a motion should be granted only when a partys chances of receiving a fair trial have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 283.) [A]ll exercises of legal discretion must be grounded in reasoned judgment and guided by legal principles and policies appropriate to the particular matter at issue. (People v. Russel (1968) 69 Cal.2d 187, 195.) A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions. [Citation.] (People v. Haskett (1982)30 Cal.3d 841, 854.) Thus, the trial courts denial of the mistrial motion constitutes an abuse of discretion only if the evidence is incurably prejudicial.

Defendant contends that the inadmissible testimony that he was on parole devastated his defense of entrapment. We disagree. In California, entrapment is determined by an objective test. (People v. Barraza (1979) 23 Cal.3d 675, 689.) In Barraza, the California Supreme Court expressly rejected the subjective origin-of-intent test. (Id. at pp. 688-690.) In the subjective origin-of-intent approach, the availability of the defense depends upon whether the intent to commit the crime originated in the mind of the defendant . . . and that where a defendant has a preexisting criminal intent, the fact that when solicited by a decoy he commits a crime does not show entrapment. (People v. Benford (1959) 53 Cal.2d 1, 10.) If California used this approach, defendants argument might have some merit because the jurors knowledge that the defendant had committed similar crimes in the past could impermissibly influence the jurors perception of defendants preexisting criminal intent. However, the objective test for the entrapment defense focuses on police conduct. Under this test, the issue is whether the conduct of the law enforcement agent [was] likely to induce a normally law-abiding person to commit the offense[.] (People v. Barraza, supra, at pp. 689-690.) [M]atters [such] as the character of the suspect, his predisposition to commit the offense, and his subjective intent are irrelevant. (Id. at pp. 690-691, fn. omitted.) Accordingly, the jury was instructed that [m]atters such as the character of the defendant, his predisposition to commit the crime, and his subjective intent are not relevant to the determination of the question of whether entrapment occurred. Whether defendant was on parole does not have any bearing upon the conduct of the deputies. The reference to his parole status, therefore, could have no substantial impact on his entrapment defense.

Nevertheless, it is true that exposing a jury to a defendants prior criminality presents the possibility of prejudicing a defendants case and rendering suspect the outcome of the trial. (People v. Harris (1994) 22 Cal.App.4th 1575, 1580.) The possibility of such prejudice here was effectively cured by the courts admonition. The trial court gave a forceful and specific admonition to the jurors that they could not consider OBriens testimony that defendant was on parole, and told them it was irrelevant to the case. In addition, the trial court made it clear that if any juror felt that he or she could not put it out of [their] mind, the juror needed to make the judge aware of that. All of the jurors agreed they would be able to put the statement out of their minds and none of the jurors told the judge later that they were not able to disregard the testimony.

A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith. (People v. Allen (1978) 77 Cal.App.3d 924, 934.) As in Allen, we presume that the jury was able to follow the admonition and strike the statement from their decision making. This is not one of those exceptional cases in which the improper subject matter is of such a character that its effect on the minds of the jurors cannot be removed by the courts admonitions. (People v. Seiterle (1963) 59 Cal.2d 703, 710.) Therefore, the trial court did not abuse its discretion in denying defendants motion for mistrial because defendants right to a fair trial was not irreparably prejudiced by a witnesss erroneous reference to defendants parole status.

B. On Remand, the Trial Court Must Specify the Reasons for Imposing an Upper Term Sentence

Defendant raises several issues on appeal in regard to his sentencing. First, defendant contends that the court erred in imposing the upper term of five years for selling cocaine in violation of Health and Safety Code section 11352, because the court made a dual use of defendants prior convictions for both the aggravated term and the imposition of the enhancements. Defendant believes that trial counsel raised a sufficient objection to the dual use when he asked the court to impose the middle term or mitigated sentence, and, if the objection is inadequate, that trial counsel rendered ineffective assistance requiring reversal. Finally, defendant maintains that even if the sentencing judge used defendants parole violation and unsatisfactory behavior on parole instead of his prior convictions in imposing the aggravated term, under Cunningham, the parole behavior must be tried before a jury before the upper term is imposed.

1. Background

Defendant argues that the court used four of his prior convictions both to impose enhancements of four consecutive prison terms of one year pursuant to Penal Code section 667.5, subdivision (b), and to give the aggravated term of five years on count 1. The court sentenced defendant to the upper term of five years on count 1 and the midterm of three years on count 2, to be served concurrently with count 1. The court also imposed four consecutive one-year terms for each prison prior. In explaining defendants sentence to the aggravated term, the trial judge said:

Seems to the Court that, in view of the defendants record, the aggravated term is the appropriate term. Seems to me that the longer he stays in custody, the less problems we have in the community because he never slows down, and hes constantly back before the Court or before the parole board. As you can see, I dont know how many parole violations hes had over the years, but its over ten. So it does seem to be appropriate. The probation officer recommended the aggravated term for count 1 and listed one aggravating factor related to the crime and four aggravating factors related to the defendant. The aggravating factor related to the crime was [t]he manner in which the crime was carried out indicates planning, sophistication, or professionalism. (Cal. Rules of Court, rule 4.421(a)(8).)^[1] The four aggravating factors related to defendant were: prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous (rule 4.421(b)(2)); defendant has served prior prison terms (rule 4.421(b)(3)); defendant was on parole when the crime was committed (rule 4.421(b)(4)); and defendants prior performance on parole was unsatisfactory (rule 4.421(b)(5)). The probation officer noted no circumstances in mitigation and stated that defendant has had multiple violations of parole on every case he has served time, thus demonstrating his inability to comply.

The probation report sets forth the four prior convictions used to support the enhancements: a 1996 second degree residential burglary conviction (Pen. Code,  459), a 1997 conviction for receiving stolen property (Pen. Code,  496, subd. (a)), a 1999 petty theft conviction with a prior (Pen. Code,  666), and a two-count conviction in 2000 for second degree commercial burglary and petty theft with a prior (Pen. Code,  459, 666). The probation report lists three other possible prior convictions that were not alleged as sentence enhancements. They are: a 1991 Health and Safety Code section 11550, subdivision (a) violation for being under the influence of a controlled substance and trespassing (Pen. Code,  602.5), a 1997 petty theft conviction with a prior (Pen. Code,  666), and a 2003 conviction for being under the influence of a controlled substance (Health & Saf. Code,  11550, subd. (a)).

2. Analysis

Under People v. Scott (1994) 9 Cal.4th 331, if a defendant does not object to an erroneous ruling at the time of sentencing, he waives that claim on appeal. (Id. at pp. 351-353.) As the Scott court stated: [T]he waiver doctrine should apply to claims involving the trial courts failure to properly make or articulate its discretionary sentencing choices. Included in this category are cases in which the stated reasons allegedly do not apply to the particular case, and cases in which the court purportedly erred because it double-counted a particular sentencing factor, misweighed the various factors, or failed to state any reasons or give a sufficient number of valid reasons. (Id. at p. 353.)

Defendant argues that a sufficient objection to dual use of the prior convictions was raised when trial counsel urged the court to impose the middle or lower term in light of the anticipated use of enhancements based on the prior convictions. The People argue that the trial defense counsel did not raise a sufficient objection to preserve this issue for appeal. We agree with the People.

To make a valid objection, trial counsel should bring the potential dual use of the prior convictions to the judges attention. There is no mention of the dual use of facts in the record, and trial counsel asking to impose the middle or mitigated term was not enough to alert the trial judge of a potential dual use.

However, even though defendant may have waived his right to raise this issue, this court is not restricted in reviewing whether there was a dual use of fact.The waiver doctrineonly limits the defendants ability to challenge the trial courts failure to do so when he or she has not raised the issue in the trial court. (People v. Lizarraga (2003) 110 Cal.App.4th 689, 692.) In People v. Williams (1998) 17 Cal.4th 148, the California Supreme Court, in interpreting People v. Scott, supra, 9 Cal.4th 331, said: [T]he fact that a party may forfeit a right to present a claim of error to the appellate court if he did not do enough to prevent[] or correct[] the claimed error in the trial court [citation] does not compel the conclusion that . . . the appellate court is deprived of authority in the premises. An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party. [Citations.] (People v. Williams, supra, at pp. 161-162, fn. 6.) Even though defendants trial counsel did not preserve this issue for appeal, we will address the issue for the reason of ensuring defendant was sentenced fairly.^[2]

The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. (Pen. Code,  1170, subd. (b).)^[3] Thus, a fact used to impose an enhancement under Penal Code section 667.5 may not be used as an aggravating factor in imposing an upper term. (People v. Jardine (1981) 116 Cal.App.3d 907, 924, disapproved on another ground in Donaldson v. Superior Court (1983) 35 Cal.3d 24, 32.)

The People argue that there was not a dual use of fact because the court imposed the aggravated term based on defendants entire criminal history and parole violations. While this may have contributed to the sentencing judges decision, it is not clear that the court based the aggravated sentence solely on defendants other three nonenhancement convictions and parole history. The [r]easons for imposing consecutive terms, as well as aggravating base terms, must be expressly stated. (People v. Whitehouse (1980) 112 Cal.App.3d 479, 486.) In People v. Ibarra (1982) 134 Cal.App.3d 413, 426, the sentencing factors the trial court used to impose both the upper term and consecutive sentences were combined into a single statement, thus making it impossible to determine which factors were applied to each part of the sentence. The reviewing court determined that this made [e]ffective appellate review . . . not possible and could potentially disguise a forbidden dual use of facts. (Ibid.)

In this case, there are several aggravating factors mentioned in the probation report, any one of which could be used to justify the upper term sentence. But because we cannot determine whether the trial court made dual use of defendants four prior felony convictions, a new sentencing hearing is required.^[4]

IV. DISPOSITION

With respect to the conviction, the judgment is affirmed; with respect to the sentence, the judgment is reversed. On remand, the court is directed to hold a new sentencing hearing in accordance with the law. In sentencing defendant, the court shall set forth on the record its reasons for imposing the sentence selected.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ King

J.

We concur:

/s/ Gaut

Acting P.J.

/s/ Miller

J.

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^[1] All further references to rules are to the California Rules of Court.

^[2] Consequently, we need not address whether trial counsels failure to object to a dual use of fact at sentencing was so defective as to require reversal.

^[3] In response to Cunningham, the California Legislature amended section 1170 by urgency legislation effective March 30, 2007. (Stats. 2007, ch. 3,  2 (Sen. Bill No. 40).) Our reference to section 1170 is to the statute as it read prior to these amendments.

^[4] Defendant further contends that the imposition of the upper term sentence on count 1 violated the Sixth Amendment under Cunningham. Because we are reversing the sentence for the reasons set forth above, we need not consider defendants Cunningham argument. On remand, the trial court shall resentence defendant in light of the California Supreme Courts recent decisions in People v. Black (2007) 41 Cal.4th 799 and People v. Sandoval (2007) 41 Cal.4th 825.