P. v. McCarvey

Filed 8/29/07 P. v. McCarvey CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County, George Gonzalez Lomeli, Judge. Affirmed in part, reversed in part and remanded.

Dennis L. Cava, 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, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant James Earl McCarvey challenges his conviction for attempted robbery. He argues the trial court committed judicial misconduct, and violated his due process rights in doing so. He also contends the court abused its discretion in allowing the prosecution to reopen its case. We reject both arguments.

We find that the trial court imposed an unauthorized sentence by failing to impose three mandatory five-year enhancements. Appellant agrees the court erred in this respect, but argues the court must re-consider his Romero[1]motion in light of his new sentence. We agree. We reverse appellants sentence and remand the case to the trial court for reconsideration of the Romero motion and for re-sentencing.

FACTUAL AND PROCEDURAL SUMMARY

On September 19, 2005, appellant crossed paths with Wendell Rich in a park. Rich tried to avoid appellant, but appellant stepped in front of him. Appellant smiled and punched Rich in the ribs. When Rich fell to the ground in pain, appellant jumped on his back.

While holding Rich down, appellant hit him on the head six to eight times. Appellant pulled out a badge, put it to Richs face and proclaimed, this is my beat. Appellant threw Richs hat in the park and either went through Richs pockets himself or demanded that Rich empty his pockets. Appellant emptied Richs backpack and rifled through the contents, although he did not actually take anything from Rich. Appellant then approached another person and went through the contents of that persons pockets.

Appellant was charged with the attempted robbery of Rich, in violation of Penal Code sections 664 and 211.[2] It was alleged that appellant had six prior serious or violent felony convictions within the meaning of sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i) (the Three Strikes law); six prior serious felony convictions within the meaning of section 667, subdivision (a)(1); and that he served six prior prison terms within the meaning of section 667.5, subdivision (b).

A jury found appellant guilty of attempted robbery. After appellant waived jury trial on the prior convictions, the court found three of them to be true. The court declined to exercise its discretion under section 1385 to strike any of the convictions for purposes of the Three Strikes law, but struck all prior convictions for purposes of sections 667, subdivision (a), and 667.5, subdivision (b). Appellant filed a timely notice of appeal.

DISCUSSION

I

Appellant argues the trial court violated his due process rights when it alert[ed] the prosecutor that [he] had failed to elicit evidence from Rich to prove the elements of attempted robbery . . . . He also claims the court abused its discretion in allowing the prosecution to reopen its case.

After the prosecution had called all of its witnesses, the court held a sidebar conference. During that conference, the court asked the prosecutor if he was going to rest his case. The prosecutor said that he was. At this point, Rich had not yet testified that appellant either went through his pockets or demanded that he empty his pockets. Rich also had not testified that appellant went through the contents of his backpack. The court then excused the jury for lunch, and the following colloquy took place:

THE COURT: I have asked my reporter to take a look at the transcript, again with respect to [the testimony of the victim, Rich]. Were statements ever made that he demanded of the victim an item of property or that he tried to grab something from him?

[THE PROSECUTOR]: Yes. I believe he indicated that --

THE COURT: A backpack?

[THE PROSECUTOR]: -- He tried to take his -- take items in his pocket, he demanded items, but he didnt move quickly enough, and so he actually went though it himself and took it.

THE COURT: And that came out in his testimony?

[THE PROSECUTOR]: I believe it did, Your Honor.

THE COURT: Lets check on that, if you would. I have some notes, but I just want her to check on that. I dont think -- it wasnt as clear as you stated, and it probably -- it may be that I just didnt -- okay, well check on that. Well break. Youre going to rest this afternoon?

[THE PROSECUTOR]: Yes, Your Honor.

After lunch, the prosecutor stated, I spoke with the reporter with regard to that portion that was discussed earlier. I, first of all, would like to actually review the transcript, if its possible, but I do have the victim still here. I am going to be making a request to re-call him to basically clarify that portion. The court responded, Youve yet to rest. Appellants attorney objected, arguing that the court was acting as a second prosecutor and coaching the prosecution. The court stated that I never asked him whether he covered certain sections. I asked my reporter to go back and look for my purpose. I took some notes down for my purpose. I didnt coach him or advise him what elements he should hit. . . .  [The prosecutor] was privy to it, [but] you were sitting there, as well. The prosecutor then re-called Rich and elicited testimony that appellant searched the contents of Richs pockets and backpack.

Respondent first argues that because appellants counsel later apologized to the court for suggesting that it was assisting the prosecution, and because appellant never objected on the basis of due process, his appeal has been forfeited.

The court stated that counsels word choice, coaching, and his characterization of the court as a second prosecutor were offensive. Appellants counsel stated, I apologize to the court if it feels that its offensive because I do not mean for the court to take it in that kind of manner. Although counsel apologized for offending the court, she did not withdraw her objection. Further, although counsel did not use the phrase due process in making her objection, it was clear that counsels objection was based on her belief that the courts actions, and its decision to allow the prosecutor to re-call Rich, were unfair to appellant. (See People v. Partida (2005) 37 Cal.4th 428, 434 [the requirement of a specific objection must be interpreted reasonably, not formalistically.].) Finally, because appellant is claiming that the courts misconduct also had the effect of violating his due process rights, a specific due process objection was not necessary to preserve his appeal. (See id. at p. 436.)

Appellants first contention, that the court committed judicial misconduct, is without merit. He contends that although a trial court can elicit material facts from a witness and clarify confusing testimony, its conduct here was improper because it had the effect of alerting the prosecutor that he had not established the taking element of attempted robbery. Appellant cites People v. Carlucci (1979) 23 Cal.3d 249, but that case does not support his argument.

In People v. Carlucci, the Supreme Court held that a trial court at a traffic infraction hearing may call and question witnesses in the absence of a prosecutor. (People v. Carlucci, supra, 23 Cal.3d at p. 256.) In doing so, the court approvingly quoted the following passage: The rule that a trial judges unwarranted interference with the handling of the case is misconduct . . . is sometimes distorted into a prohibition against any participation in the trial contrary to the desires or strategy of counsel. This is a complete misconception. It apparently cannot be repeated too often for the guidance of a part of the legal profession that a judge is not a mere umpire presiding over a contest of wits between professional opponents, but a judicial officer entrusted with the grave task of determining where justice lies under the law and the facts between the parties who have sought the protection of our courts. Within reasonable limits, it is not only the right but the duty of a trial judge to clearly bring out the facts so that the important functions of his office may be fairly and justly performed. (Id. at p. 256, quoting 4 Witkin, Cal. Procedure (2d ed. 1971) Trial, 185, pp. 3005-3006, which, in turn, quotes Estate of Dupont (1943) 60 Cal.App.2d 276, 290.)

The trial court here did not depart from its judicial duties. It asked the court reporter for a portion of the transcript because it was unsure what testimony had been elicited from Rich regarding the taking element. This was within the courts duty to clearly bring out the facts. (People v. Carlucci, supra, 23 Cal.3d at p. 256.) Nor did the courts conduct result in a denial of due process. The courts request for the transcript was made outside of the presence of the jury so it did not create the impression that the court was allied with the prosecution. (People v. Cook (2006) 39 Cal.4th 566, 598.) Appellant was aware that Rich might testify regarding the taking element because he did so at the preliminary hearing, and appellant had the opportunity to, and did, cross-examine Rich regarding this testimony. We find no due process violation.

Appellant further contends that because the prosecutor did not use diligence, it was an abuse of discretion for the trial court to allow the prosecutor to reopen the Peoples case. Respondent replies, correctly, that the prosecution did not reopen its case because it had not rested its case. Finally, even if the prosecution had rested its case, there is no abuse of discretion.

The factors an appellate court will consider in reviewing the trial courts [ruling on a motion to reopen] include the stage the proceedings had reached when the motion was made, the diligence shown by the moving party in discovering the new evidence, the prospect the jury would accord it undue emphasis, and the significance of the evidence. (People v. Marshall (1996) 13 Cal.4th 799, 836, citing People v. Rodriguez (1984) 152 Cal.App.3d 289, 294-295.) When the prosecution attempted to reopen its case, appellant had not yet opened his case. The evidence that appellant attempted to take something from Rich was significant to the case, and appellant has not shown that re-calling Rich caused the jury to give his subsequent testimony undue emphasis. We find no error.

II

Pursuant to section 1385, the trial court struck all prior convictions alleged in the information under Penal Code section[] 667[, subdivision] (a)(1) . . . . As we shall explain, this was error. Because this issue was not briefed by either side, we invited the parties to submit supplemental briefs pursuant to Government Code section 68081. They were asked to address whether the court had erred in striking the prior convictions for purposes of section 667, subdivision (a), and the effect of respondents failure to raise that issue on appeal. Both parties agree that the court erred. They also agree that respondents failure to raise the issue on appeal does not preclude this court from correcting the unauthorized sentence. (See People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6 [stating that an unauthorized sentence is subject to judicial correction whenever the error comes to the attention of the reviewing court.].)

Under section 667[, subdivision] (a), when the defendant is convicted of a current serious felony within the meaning of section 1192.7, subdivision (c), and has been previously convicted of a serious felony, the trial court must impose a five-year enhancement for each such prior conviction that was brought and tried separately. (People v. Dotson, supra, 16 Cal.4th at p. 553, fn. omitted.) Effective May 6, 1986, pursuant to emergency legislation, Penal Code sections 667 and 1385 were amended to abolish trial court authority under Penal Code section 1385 to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under [section] 667. (People v. Salazar (1987) 194 Cal.App.3d 634, 636, fn. 2.) In the Three Strikes context, the same allegation that a particular prior qualified as a serious felony may serve two separate purposes: for use as a five-year enhancement under section 667, subdivision (a); and as a strike for application of the Three Strikes laws. [Citations.] While a serious felony may be stricken by the court for purposes of the Three Strikes law [citation], the same is not true for purposes of a five-year enhancement. (People v. Turner (1998) 67 Cal.App.4th 1258, 1268-1269.)

The court lacked authority to strike a serious felony prior conviction for purposes of the mandatory five-year enhancement set out in section 667, subdivision (a). Because the court found three serious felony prior convictions to be true, it was required to impose three 5-year enhancements.[3] Its failure to do so resulted in an unauthorized sentence. (People v. Turner, supra, 67 Cal.App.4th at p. 1269; see also People v. Scott (1994) 9 Cal.4th 331, 354.) Accordingly, the case must be remanded to the trial court for the purpose of imposing three 5-year enhancements pursuant to section 667, subdivision (a). (See People v. Turner, supra, at p. 1269.)

III

In his original appeal, appellant argued that because the trial courts exercise of discretion regarding his Romero motion was not informed, he was entitled to a new Romero hearing. In Romero, supra, 13 Cal.4th at pages 529-530, the Supreme Court held that section 1385, subdivision (a)[4]permit[s] a court acting on its own motion to strike prior felony conviction allegations in cases brought under the Three Strikes law. In light of appellants new sentence reflecting the mandatory imposition of three 5-year enhancements, appellant argues the trial court must hold a new Romero hearing, regardless of whether the court erred in denying his previous Romero motion, because his sentence has changed.

[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, in furtherance of justice pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the 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 (1998) 17 Cal.4th 148, 161.)

In deciding a defendants prospects for committing future crimes, the sentence imposed by the trial court is itself a factor, since the defendant presumably will have fewer opportunities to commit crime[s] while in prison. [A] defendants sentence is also a relevant consideration when deciding whether to strike a prior conviction allegation; in fact, it is the overarching consideration because the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences. (People v. Gaston (1999) 74 Cal.App.4th 310, 315.)

The trial court declined to strike the prior convictions for purposes of the Three Strikes law, but then struck them for purposes of section 667, subdivision (a), and section 667.5, subdivision (b), because appellants Three Strikes sentence was for 25 years to life. It is unclear whether the trial court would have stricken the prior convictions for purposes of the Three Strikes law had it known it could not strike them for purposes of section 667, subdivision (a). Because of this, we shall direct the trial court to reconsider appellants Romero motion on remand.

DISPOSITION

The sentence is reversed and the case is remanded to the trial court. The court is directed to reconsider appellants Romero motion, and to re-sentence him in a manner consistent with the views of this opinion. The superior court clerk is directed to forward an amended abstract of judgment reflecting such changes to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

EPSTEIN, P. J.

We concur:

WILLHITE, J. SUZUKAWA, J.

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[1] See People v. Superior Court (Romero) (1996) 13 Cal.4th 497.

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

[3] These enhancements are to run consecutively to appellants attempted robbery sentence. (See People v. Dotson, supra, 16 Cal.4th at p. 553.)

[4] Section 1385, subdivision (a) provides: The judge or magistrate may, either of his or her own motion or upon the application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed. The reasons for the dismissal must be set forth in an order entered upon the minutes. No dismissal shall be made for any cause which would be ground of demurrer to the accusatory pleading.