P. v. Tisby
Filed 7/29/13 P. v. Tisby CA4/3
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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 THREE
THE
PEOPLE,
Plaintiff and Respondent,
v.
FRANK
GEORGE TISBY,
Defendant and Appellant.
G046862
(Super. Ct. No. 09WF2281)
O P I N I O N
Appeal from a judgment of the Superior Court of
County, Frank
F. Fasel, Judge.
(Retired
judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.)
Affirmed in part, reversed in part and modified.
Joanna Rehm, under appointment by the Court
of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, A. Natasha Cortina and Kimberly A. Donohue, Deputy Attorneys
General, for Plaintiff and Respondent.
After a
jury convicted appellant Frank George Tisby of
sentenced him to the upper term of six years for that offense, plus a 10-year
enhancement for committing a violent felony for the benefit of a criminal
street gang. Appellant contends the
enhancement must be reduced to five years because the prosecution did not
allege that a person other than an accomplice was present during the
burglary. We agree. Although we reject appellant’s secondary
contention that his attorney was ineffective for failing to prevent imposition
of the upper term, we will modify the judgment to reflect a sentence of five
years for the gang enhancement and to adjust appellant’s presentence credits
accordingly. In all other respects, we
affirm.
FACTS
Sidelined
by a cold, Steven Truax stayed home from work on August
11, 2009. At about noon, he awoke to find an
intruder, appellant, inside his home.
Appellant was holding a bag or stocking, and when Truax told him to get
out of his house, he darted out the front door.
Truax chased him to the driveway, at which time a second man, Roger
Shackleford, ran past him. Shackleford
and appellant then hopped into an awaiting car and fled the scene. When Truax went back inside his house, he
found a pillowcase on the floor which contained his roommate’s computer, watch
and other valuables.
A
week later, the police stopped a car in which appellant, Shackleford and
Shackleford’s brother Rodney were riding.
Investigators determined the car had been rented from Midway Car Rental
by Erica Jones, who has two children by Rodney.
They also learned the car used in the Truax burglary had been rented
from Midway by Jones.
At
the time of the burglary, appellant and the Shackleford brothers were members
of the Rollin’ 30’s gang. A gang expert
testified the facts of this case were consistent with other burglaries the gang
had committed. He also opined the burglary
was committed for the benefit of the Rollin’ 30’s.
The
jury agreed. It not only convicted
appellant of first degree burglary and active participation in a criminal
street gang (Pen. Code, §§ 459, 460 & 186.22, subd. (a))
it also found true the enhancement allegation the burglary was committed for
the benefit of, in association with, and in furtherance of, the Rollin’ 30’s
gang. (§ 186.22, subd. (b).)
At sentencing, the court
gave appellant the upper term of six years for the burglary and stayed his
sentence for gang participation. It then
turned to section 186.22, subdivision (b) to ascertain appellant’s sentence on
the gang enhancement. That section calls
for an enhanced sentence of five years when the underlying crime is a serious
felony, such as first degree burglary. (§ 186.22, subd. (b)(1)(B).) But if the underlying
“is a violent felony, as defined in subdivision (c) of Section 667.5, the
person shall be punished by an additional term of 10 years.†(§
186.22, subd. (b)(1)(C).)
The list of
violent felonies in section 667.5, subdivision (c) includes “[a]ny burglary of
the first degree, as defined in subdivision (a) of Section 460, wherein it is
other than an accomplice, was present in the residence during the commission of
the burglary.†(§ 667.5, subd. (c)(21), italics added.) Defense counsel argued that, although
appellant was convicted of first degree burglary, the crime was not a violent
felony because the information did not allege another person other than an
accomplice was present during its commission.
Defense counsel argued it would violate due process to impose the
10-year enhancement under those circumstances.
However, the court disagreed and gave appellant the full 10 years on the
enhancement, bringing his total term of imprisonment to 16 years.
I
The
first issue is the propriety of the 10-year enhancement. As noted, section 667.5, subdivision (c)(21)
provides that first degree burglary is violent felony for sentencing purposes
when it is “charged and proved†that another person other than an accomplice
was present in the residence during the burglary. Since it was clearly proven a nonaccomplice,
Truax, was present during the burglary, we must focus on whether the prosecution
alleged as much in charging appellant with that offense.
The
information alleged, “On or about August 11, 2009, in violation of Sections
459-460(a) of the Penal Code (FIRST DEGREE RESIDENTIAL BURGLARY), a FELONY,
FRANK GEORGE TISBY AND ROGER NEAL SHACKLEFORD did unlawfully enter an inhabited
dwelling house, trailer coach, and inhabited portion of a building, inhabited
by Truax, with the intent to commit larceny.â€
The
Attorney General claims that, reasonably understood, this language —
particularly the phrase “inhabited by Truaxâ€â€”
provided notice the prosecution was alleging Truax was present during the
burglary, so as to elevate the burglary from a serious to a violent offense for
purposes of the gang enhancement.
However, regarding the crime of burglary, “‘inhabited’ means currently
being used for dwelling purposes, whether
occupied or not.†(§ 459,
italics added.) Thus, alleging Truax
“inhabited†the building appellant burglarized did not necessarily import Truax
was “present†in the building during the burglary, which is what section 667.5,
subdivision (c)(21) requires to be charged.
That
may sound hypertechnical, but the California Supreme Court has been very strict
in terms of interpreting the “pled and proved†requirement of criminal statutes. For example, in People v. Mancebo (2002) 27 Cal.4th 735 (Mancebo), the court determined it was improper to use the multiple
victim circumstance in the One Strike law where that circumstance was not
specifically alleged in the prosecution’s charging documents. The substantive counts of the information
clearly indicated the defendant was being charged with victimizing multiple
children, the evidence at trial showed as much, and there was really no way to
defend against the multiple victim circumstance had it been pled. However, none of that mattered to the
explicitly requires all relevant circumstances to be “pled and proved†and
“alleged in the accusatory pleading†before they can be used to increase the defendant’s
sentence. (Id. at pp. 741-742, fn. 4, quoting § 667.61, subds. (f) &
(i).) Despite the presence of a factual
basis for the multiple victim circumstance, Mancebo
forbade its use against the defendant in that case because “no factual
allegation in the information or pleading in the statutory language informed
[him] that if he was convicted of the underlying charged offenses, the court
would consider his multiple convictions as a basis for One Strike sentencing .
. . .†(Mancebo, supra, 27 Cal.4th at p. 745.)
Likewise
here, appellant was never apprised in the charging documents that if convicted
of the burglary charge, the court would consider the fact Truax was present
during the burglary as justification for increasing his sentence on the gang
enhancement from five years to ten years.
Indeed, the prosecution did not even bring up the issue until after
appellant was convicted and he was being sentenced by the court. That undermined appellant’s right to notice
of the severity of the charges he was facing.
In
fairness to the prosecutor, it does not appear he was trying to sandbag the
defense by failing to bring up the issue sooner. Rather, he simply believed the wording of the
information was good enough to satisfy due process. However, the information actually provided
appellant with less notice than the information that was found lacking in
Whereas the information in Mancebo
at least provided a factual basis for the sentence enhancement at issue in that
case, here, as explained above, the information did not even supply that
minimal information. More importantly,
the information failed to apprise appellant the prosecution intended to use the
nonpleaded fact of Truax’s presence in the residence to double the enhancement
on the gang allegation from five to ten years.
Surely,
this would have been useful for appellant to know before trial. The record indicates he was offered a
four-year plea bargain before trial, and that offer naturally would have had
even greater attraction had appellant known he was facing a decade behind bars
just on the gang enhancement. Other
factors were surely at play in the negotiation
process, and we have no way of knowing if the failure to plead the burglary
as a violent felony would have affected plea negotiations in this particular
case. However, as our Supreme Court
recognized in Mancebo, “in many
instances a defendant’s decision whether to plea bargain or go to trial will
turn on the extent of his exposure to a lengthy prison term.†(Mancebo,
supra, 27 Cal.4th at p. 752.) For
that reason alone, it is important for prosecutors to strictly adhere to the
pleading requirement set forth in section 667.5, subdivision (c)(21).
The
Attorney General correctly notes that in reaching its decision in
limited its holding to the One Strike law.
(Mancebo, supra, 27 Cal.4th at
p. 745, fn. 5.) However, the court’s
analysis was informed by cases that involved analogous statutes that contain
“pled and proved†requirements, including the statute at issue here, section
667.5. (Mancebo, supra, 27 Cal.4th at pp. 745-746, discussing
1434.)
Moreover,
Mancebo makes clear that “in addition
to the statutory requirements that enhancement provisions be pleaded and
proven, a defendant has a cognizable due process right to fair notice of the
specific enhancement allegations that will be invoked to increase punishment
for his crimes.†(Mancebo, supra, 27 Cal.4th at p. 747.) If, as here, such notice is not afforded, the
resulting sentence is legally unauthorized and harmless error analysis does not
apply. (People v. Hernandez (1988) 46 Cal.3d 194, 208-209, discussed with
approval in Mancebo at pp. 746-747,
749.) Therefore, we reverse appellant’s
10-year sentence on the gang enhancement and order the imposition of a 5-year
sentence in its stead.
In
addition, because appellant was not charged and convicted of a violent offense,
he is not subject to the 15 percent conduct credit limitation set forth in
section 2933.1. Rather he is entitled to
receive “two days of conduct credit for each four-day block of time
served.†(People v. Kimbell (2008) 168 Cal.App.4th 904, 908.) Therefore, based on the fact appellant spent
761 days in custody before sentencing, we will modify his conduct credit from
114 days to 380 days, for a total credit award of 1,141 days.
II
Appellant
also contends his attorney did not do enough in terms of challenging imposition
of the upper term on the burglary count.
He argues it is reasonably probable he would have received a more
favorable term had his attorney been more diligent. We do not agree.
As
reflected in the probation report, defense counsel sent a letter to the
probation officer before sentencing in which she emphasized appellant’s lack of
prior criminal record and extolled his desire to accept responsibility at an
early stage of the proceedings. She also
claimed appellant had learned his lesson from the case and would act more
responsibly in the future if he were given another chance.
But
the record shows appellant was given another chance following his arrest in
this case. While out on bail, he was
arrested for being involved in a residential burglary that occurred in Torrance
in April 2010. According to the records
in that case, appellant was apprehended for driving the getaway car, and when
the police pulled him over, he had a pillowcase full of loot and a police
scanner in his vehicle.
name="_ftnref2" title="">[2]
Moreover, appellant
sustained eight rule violations, two “major†and six “minor,†while he was in
custody awaiting trial in the present case.
And he tried to downplay his gang ties and his role in the case when
speaking with the probation officer.
Appellant argues there was no evidence he was involved in planning the
Truax robbery, but he is the one Truax encountered inside his home. Mastermind or not, he is the one who breached
the sanctity of the Truax residence and arguably posed the greatest danger to
him.
Appellant
complains the probation report did not include any information that was
favorable to him. However, the report
includes numerous letters of recommendation that were submitted on appellant’s
behalf from his friends and family. And
the report states, “The 24-year-old defendant has no prior record of criminal
conduct†and he “has expressed a willingness to comply with the terms of
probation.†These factors were not
formally described as “mitigating factors†in the probation report. But since the trial judge stated he had read
the report, it is logical to presume he took them into consideration when
sentencing appellant.
Appellant
asserts Truax’s presence at the time of the burglary was an element of the
offense and thus should not be viewed as an aggravating factor for purposes of
sentencing. However, as we explained
above in section I, habitation, as opposed to victim presence, is the key
requirement for residential burglary.
The fact Truax happened to be home at the time of the burglary makes
this case more serious than other first degree burglaries where the victim
inhabits – but is away from – his property, at the time of the offense.
Admittedly,
the trial court did not articulate any reasons for imposing the upper term on
the burglary, nor did defense counsel request any reasons or otherwise object
to the court’s decision in this regard.
Yet, in light of all the relevant considerations, we do not believe it
is reasonably probable appellant would have received a more favorable sentence
on the burglary count had his attorney handled the matter any differently. Therefore, counsel was not ineffective for
failing to achieve a better result. (
1175 [to prove ineffective assistance of counsel defendant must show deficient
performance and prejudice, meaning it
is reasonably probable he would have received a more favorable result but for
counsel’s alleged failings].)
DISPOSITION
The
judgment is reversed with respect to appellant’s 10-year sentence on the gang
enhancement, which is modified to a term of 5 years in prison. In addition, appellant’s presentence conduct
credits are modified from 114 to 380 days, resulting in a total credit award of
1,141 days. The clerk of the trial court
is directed to prepare an amended abstract of judgment reflecting these
modifications and forward a certified copy to the
affirmed.
BEDSWORTH,
ACTING P. J.
WE CONCUR:
FYBEL, J.
IKOLA, J.
name="_ftn1" title=""> [1] All further statutory references are to the Penal
Code.
name="_ftn2" title=""> [2] Appellant also was arrested for
possessing burglary tools in 2009, although that charge was ultimately
dismissed.
