P. v. Lopez

Filed 8/2/07 P. v. Lopez CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

APPEAL from a judgment of the Superior Court of Los Angeles County, Daniel J. Buckley, Judge. Affirmed as modified.

Kenneth J. Hutz, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Gary A. Lieberman, Deputy Attorney General, for Plaintiff and Respondent.

Defendant, Edher Lopez, appeals from: his conviction for first degree burglary (Pen, Code,^[1] 459); the jurors finding that another person other than an accomplice was present in the residence at the time of the burglary ( 667.5, subd. (c)); and the trial courts finding that he was previously convicted of a serious felony. ( 667, subds. (b)-(i), 1170.12.) Defendant argues the trial court improperly found his prior juvenile adjudication to be a serious felony and failed to properly exercise its discretion to strike the prior serious felony conviction. The Attorney General argues additional fees and penalties should have been imposed on the fines. We affirm with modifications.

We view the evidence in a light most favorable to the judgment. (Jackson v.Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; Taylor v.Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) At approximately 1:20 p.m. on August 26, 2005, Carrie B.^[2]and her 12-year-old son Cody were driving in the area of Randall Way in West Covina. Carrie saw two Latino men in the driveway of the corner house beneath the garage door. The two men had shaved heads and wore gang attire. One of the men had a speaker box over his shoulder. The two men suddenly ran across the street toward a rust colored car with a cream colored top. One of the men threw the speaker into the open trunk of the car. Both men got into the car and drove away. No one else was inside the car. Cody noticed that the man with the speaker had tattoos on the back of his head and neck. The tattoos included writing which Cody could not decipher. Carrie was directly behind the car in which the two men were traveling. Carrie noted the license plate number of the car, 664 UBM. Thereafter, Carrie made a U-turn and wrote down the license plate of the car on a piece of paper which she later turned over to the police. Carrie then knocked on the door of the house from where the men had run. However, no one responded. Carrie then called the police and waited for them to arrive.

Janell Martinez lived at 1334 West Randall Way with her husband and four children. On the morning of August 26, 2005, Ms. Martinez had been working in her garage with the door open. The garage was attached to the house. When Ms. Martinez later went into the house to take a shower, she left the garage door open. When Ms. Martinez got out of the shower and dressed, she closed the garage door. Thereafter, the police came to Ms. Martinezs door. Ms. Martinez was asked if she had closed the garage door within the past 15 to 20 minutes. Ms. Martinez said she had. Ms. Martinez noticed that her husbands disc jockey speaker was missing when she went into her garage. The speaker had a value of approximately $400. Ms. Martinez did not know defendant. Ms. Martinez did not give anyone permission to come into her garage to take the speaker. Someone would have to walk inside Ms. Martinezs garage to take the speaker.

On September 28, 2005, El Monte High School Resource Officer Joe Garcia stopped a brown Oldsmobile automobile. Defendant was a passenger in the car. The automobile had the license plate No. 664 UBM. Officer Garcia entered the license plate number into the computer in his police car. Officer Garcia learned that the car was wanted in connection with a felony in West Covina. Defendant was taken into custody by the West Covina Police Department.

West Covina Police Detective Dennis Patton interviewed defendant regarding the August 26, 2005 burglary. Defendant was advised of his constitutional rights. Defendant agreed to speak with Detective Patton. Defendant said that he was driving in the neighborhood on August 26, 2005. Defendant saw a friend named Tony. The man identified only as Tony was accompanied by another individual named Carlos whom defendant had not previously met. Tony was carrying a plastic bag. Tony said he was waiting for a taxi. The taxi was to take Tony and Carlos to El Monte. Defendant agreed to drive them to El Monte for five dollars. Shortly thereafter, defendant waited in the car while Tony and Carlos went into a garage at 1334 West Randall Way. Tony walked out with a speaker box, which he put in the trunk of the car. Carlos had a black compact disk case. Defendant then drove the two men to El Monte as agreed.

Detective Patton later went to the apartment complex where defendant claimed Tony and Carlos had gone. Detective Patton spoke to Catina H., who knew Tony. Catina said that Tony was frequently at the apartment complex. Catina said that Tony had short hair and no tattoos.

First, defendant argues the trial court improperly used his juvenile adjudication for witness intimidation as a prior serious felony. Defendant argues that he was not afforded a jury trial when the juvenile matter was adjudicated. As a result, defendant argues the use of that adjudication violated his constitutional rights to due process, notice and, jury trial, and to be free of cruel and unusual punishment.

Defendant relies upon the holding in Apprendi v. New Jersey (2000) 530 U.S. 466, 490, to support his claim, Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Defendant argues that his juvenile adjudication is not a prior conviction within the meaning of Apprendi. Defendant further relies on United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1194 which held that prior juvenile adjudications do not fall within the fact of a prior conviction exception to thegeneral rule that all elements used to increase a defendants maximum penalty must be submitted to a jury and proven beyond a reasonable doubt. However, as defendant readily acknowledges, our colleagues in the Court of Appeal for various appellate districts have held otherwise. (See People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1311-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1075; People v. Bowden (2002) 102 Cal.App.4th 387, 390-394.) Defendant argues that these cases were incorrectly decided. We further note that the California Supreme Court has denied review in all of these cases and the United States Supreme Court has denied certiorari petitions in those cases where the accused so petitioned. In People v. Smith, supra, 110 Cal.App.4th at page 1079, our colleagues in Division Seven of this appellate district agreed with the findings of our colleagues in Division Four and held: By enacting the three strikes law, the Legislature has . . . simply . . . said that, under specified circumstances, a prior juvenile adjudication may be used as evidence of past criminal conduct for the purpose of increasing an adult defendants sentence. . . . Since a juvenile constitutionallyand reliably [citation]can be adjudicated a delinquent without being afforded a jury trial, there is no constitutional impediment to using that juvenile adjudication to increase a defendants sentence following a later adult conviction. [Citation.] (People v. Smith, supra, 110 Cal.App.4th at p. 1079, quoting People v. Bowden, supra, 102 Cal.App.4th at p. 392 , and People v. Fowler (1999) 72 Cal.App.4th 581, 586; see also People v. Superior Court (Andrades), supra, 113 Cal.App.4th at p. 834.) We agree with that reasoning.

Moreover, defendant pled no contest to the juvenile witness intimidation charge and the special allegation that the offense was gang related. ( 136.1, subd. (c)(11), 186.22, subd. (b)(1).) Defendant therefore waived his right to an adjudication hearing. Even if juveniles were entitled to jury trials, defendants admission would have also amounted to a waiver of that right. Defendant also acknowledged at trial that he admitted to committing the felony of dissuading a witness in a prior proceeding. Defendant was also afforded the opportunity for a jury trial regarding the prior adjudication allegation in this case. Defendant waived that right and allowed the trial court to make the determination.

Second, defendant argues the trial court abused its discretion in refusing to exercise its section 1385, subdivision (a) discretion to strike his prior serious felony conviction. While the trial judges order is subject to review for abuse of discretion, the California Supreme Court has made clear: . . . A courts discretion to strike [or vacate] prior felony conviction allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in strict compliance with section 1385[, subdivision] (a), and is subject to review for abuse. . . . [] The trial courts power to dismiss an action under [section 1385, subdivision (a)], while broad, is by no means absolute. Rather, it is limited by the amorphous concept which requires that the dismissal be in furtherance of justice. (People v. Williams (1998) 17 Cal.4th 148, 158-159, quoting People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531; see also People v. Garcia (1999) 20 Cal.4th 490, 499-500.)

The Romero court noted that a trial court abuses its discretion if it strikes a sentencing allegation merely on the basis of the effect on defendant: . . . Nor would a court act properly if guided solely by a personal antipathy for the effect that the three strikes law would have on [a] defendant, while ignoring defendants background, the nature of his present offenses, and other individualized considerations. [Citation.] (Peoplev. Superior Court (Romero), supra, 13 Cal.4th at p. 531; see People v. Garcia, supra, 20 Cal.4th at p. 498.) The Supreme Court further clarified the standard for reviewing a ruling on whether to strike a prior serious felony conviction: [T]he court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. . . . (People v. Williams, supra, 17 Cal.4th at p. 161; see People v. Carmony (2004) 33 Cal.4th 367, 377; People v. Garcia, supra, 20 Cal.4th at pp. 498-499.) The Supreme Court has explained: [Section 667] not only establishes a sentencing norm, it carefully circumscribes the trial courts power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. (People v. Carmony, supra, 33 Cal.4th at p. 378.)

Defendants first arrest was for the witness intimidation on May 10, 2004. Defendant was placed home on probation. On June 3, 2004, defendant was found to be in violation of probation and was ordered to serve six months in a camp community placement. On August 11, 2005, defendant pled guilty to misdemeanor controlled substance possession and was granted deferred entry of judgment. However, on August 26, 2005, defendant was arrested in the present case for first degree burglary. In opposition to the section 1385, subdivision (a) motion, the prosecutor argued that defendant was an active member of a violent criminal street gang at the time of the May 10, 2004 witness intimidation arrest. A search of defendants room related to that case revealed: gang paraphernalia; methamphetamine pipes; pay/owe sheets for narcotics sales; .25 caliber bullets; a weight scale; blank car keys commonly used for car thefts; and, a loaded .45 caliber gun magazine. Defendant admitted the gang allegation in the witness intimidation case was true. At the time of the section 1385, subdivision (a) hearing, the prosecutor noted: [Defendant] has the violent offense of the [section] 136.1 from 2004. I believe that offense date was May 10, 2004, with a conviction of June 3[rd]. And combined with that threat against the witnesses is the gang allegation obviously. He was sentenced to camp and then placed on probation, and then he picks up the [Health and Safety Code section] 11377 in August of last year, August 10, I believe; and two weeks later or thereabouts, now he gets his second violent offense with the first degree residential burglary, and there was somebody present at the house at the time of this incident. Thereafter, defense counsel set forth the mitigating factors regarding: defendants youth; the value of the stolen speaker; the fact that no one was injured and no weapons were used; defendants high school graduation and college plans; and, supportive letters from family and friends.

In denying the motion to strike, the trial court noted: The Court believes that attempts to stop our legal system can be as harmful as any assault or battery. And by the very nature of the crime at such a young age that someone actually, whether or not it was gang related, whether or not it actually had the touching of a body, but the court finds that a violation of [section] 136.1[, subd.] (c)(1) is extremely serious. [] We all the attorneys, the staff, myself, walk into this building every day with a goal that we are fair to everyone, justice is to prevail. [] And, Sir, when you try to actively stop that system I spend the beginning of every jury trial embracing with the jurors what a great system we have. And when someone actively tries to stop that system and let a victim or a witness be threatened with force with the intent of that person not participating in our legal system in no way am I going to make the comment that I rather you hit someone. But most definitely I want to emphasize that that is an extremely serious crime. And I dont think anyone in this room would ever want to belittle the seriousness of that. I would hope everyone in this room would understand that we would never want that to happen. [] Even in your own trial, if someone had taken the effort to make someone not testify or lie under a threat of violence, you rightfully would be indignant. So the starting point of this day is that I call the seriousness of what happened on May 10, 2004, to be extremely serious and something that most definitely should fall under the three strikes law, and there should be very unique circumstances that I would consider to strike it. [] The issue of the age goes both ways. The age of this young man can be viewed as potential, but also can be used that in a limited period of time hes making sure hes check-marking every possible crime he can do. In a matter of weeks, not years, hes put on home probation. So his first opportunity to be on probation, he has no pun intended, been striking out left and right. Hes shown no ability whatsoever of taking on the responsibilities and duties of probation. Literally within two or three months, he has this drug possession charge. The law is very fair and proper as to how that was handled, but clearly the information as to whats found in his house is extremely troubling. But again within weeks or months, hes doing that, and then literally two weeks later, he does this crime. I find no reason whatsoever to grant the motion. [] There is in the limited number of times that the system tried to shake [defendant] and make him realize that there are, one, consequences to his actions, but more importantly, he shouldnt do certain things, he defied the law and directly violated every possible term of probation one can think of, with whom hes associating, what hes doing, moving on to more crimes, different crimes. Given defendants prior record and the facts related both to him and his offenses, no constitutional violation has occurred by reason of his eight-year sentence. (Rummel v. Estelle (1980) 445 U.S. 263, 268; Spencer v. Texas (1967) 385 U.S. 554, 560; People v. Martinez (1999) 71 Cal.App.4th 1502, 1510-1517; People v. Cooper (1996) 43 Cal.App.4th 815, 820-828; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1134-1137.)

Third, the Attorney General argues additional state court construction penalties should have been imposed. The trial court imposed a $200 section 1202.4, subdivision (b)(1) restitution fine and stayed the $200 section 1202.45 parole revocation restitution fine. These two restitution fines are not subject to section 1464, subdivision (a) and Government Code section 76000, subdivision (a) penalty assessments. ( 1202.4, subd. (e); People v. Sorenson (2005) 125 Cal.App.4th 612, 617; People v. McHenry (2000) 77 Cal.App.4th 730, 733-734.) However, as we explained recently in People v. Chavez (2007) 150 Cal.App.4th 1288, 1298-1300, there are additional penalties that apply to the sections 1202.4, subdivision (b)(1) and 1202.45 restitution fines. Government Code section 70372, subdivision (a), the state court construction penalty, states in part, [T]here shall be levied a state court construction penalty, in addition to any other state or local penalty including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000 of the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . . The state court construction penalty applies to every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . which includes restitution fines. (People v. Chavez, supra, 150 Cal.App.4th at p. 1300.) Therefore, a state court construction penalty of $100 is to be added to both the section 1202.4, subdivision (b)(1) and 1202.45 restitution fines. (Needless to note, the addition to the section 1202.45 parole revocation restitution fine is stayed.)

In addition, the trial court imposed a $10 crime prevention fine pursuant to section 1202.5, subd. (a). That fine is also subject to additional fees and penalties as follows: a $10 penalty pursuant to section 1464, subdivision (a); a $5 state court construction penalty pursuant to Government Code section 70372, subdivision (a); and, a $7 penalty pursuant to Government Code section 76000, subdivision (a). (People v. Chavez, supra, 150 Cal.App.4th at pp. 1291-1293.) We asked the parties to address all penalties and assessments set forth in the Chavez case, which included section 1465.7, subdivision (a). However, that state surcharge became inoperative on July 1, 2007. The trial court is to personally insure the abstract of judgment is corrected to comport with the modifications to the fines we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)

The judgment is affirmed as modified to impose the state court fees and penalties as noted. The trial court is to personally insure a corrected abstract of judgment is prepared and forwarded to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

I concur:

KRIEGLER, J.

MOSK, J., CONCURRING.

I concur.

I concur in the sentence based on defendants plea in the adjudication hearing. There is merit in the recent opinion of People v. Nguyen (2007) 152 Cal.App.4th 1205 and dissenting opinions in People v. Lee (2003) 111 Cal.App.4th 1310, 1319 (Rushing, J., dissenting) and People v. Smith (2003) 110 Cal.App.4th 1072, 1082 (Johnson, J., dissenting), which conclude that a prior juvenile adjudication cannot constitutionally be used pursuant to the Three Strikes law to impose, based on a juvenile adjudication, on an adult a sentence in excess of the maximum sentence that otherwise could have been imposed. Although I take no position on the issue, I believe the majority incorrectly attributes significances to California Supreme Court denials of petitions for hearing and to United States Supreme Court denials of petitions for writs of certiorari.

In my view, the denial of a hearing by the California Supreme Court is not an expression of the merits of the cause. (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, 939, p. 979; see 2007 Supp. to Vol. 9, 938, p. 290). There is no doubt that a denial of certiorari does not constitute a ruling on the merits. (Foster v. Florida (2002) 537 U.S. 990 (Statement by Justice Stevens requesting denial of the petition for writ of certiorari); see Maryland v. Baltimore Radio Show (1950) 338 U.S. 912, Frankfurter, J., opinion requesting the denial of the petition for writ of certiorari).

__________________________

MOSK, J.

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

^[2] Using Carries full name would disclose Codys name. Hence, we shall refer to his mother without reference to her surname in order to protect the identity of the minor.