P. v. Cummings

Filed 4/17/09 P. v. Cummings CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FOUR

Defendant Floyd Akeem Cummings appeals following his conviction of second degree robbery. (Pen. Code,  211.)[1] He argues that the trial court erred in not bifurcating the trial so that the prior conviction allegations against him were tried separately. We disagree and affirm.

I.
Factual and Procedural
Background

Around midnight on October 1, 2007, three men approached Michael Stevens as he was walking home from a liquor store at the corner of San Pablo Avenue and Allston Way in Berkeley. One of the men grabbed Stevens and tried to rummage through his pockets. The three men then dragged the victim to a vacant parking lot and forced him to the ground. One of the men pressed his knee against Stevenss neck, and the other two went through his pockets. Stevens gave the attackers his wallet and $20. After the three men walked away from the victim, he flagged down a police car and told a police officer that he had just been mugged and pointed at his attackers, who were nearby. Two of the men ran, but defendant approached the police officer in a confrontational position. Defendant eventually fled and hid between two nearby houses. Several other officers arrived and managed to detain defendant. Stevens was driven to the area where defendant was being detained, but Stevens was unable to identify defendant. Stevens explained that he was able to see only the man who put his knee on his neck, and he did not recognize defendant as being that person.

Defendant was charged by information with second degree robbery ( 211). The information also alleged that defendant had suffered five prior convictions, three of which qualified as prior prison term commitments ( 667.5, subd. (b)). Defendant pleaded not guilty and denied the alleged priors.

Defendant represented himself at the preliminary hearing and at trial. The prosecutor filed a motion in limine to introduce impeachment evidence consisting of three of the prior convictions listed in the information (two of the prison priors and one of the convictions for which defendant received probation) should defendant take the stand; the trial court granted the motion. After the trial court ruled on in limine motions, the prosecutor stated that she planned to prove up to the jury only the three prior convictions alleged in the information that qualified as prison priors ( 667.5, subd. (b)), because the convictions that did not result in prison sentences would not affect sentencing. The trial court noted that the two prior convictions that did not result in prison sentences could be considered in deciding whether to aggravate any sentence that the court may impose.[2]

On the second day of trial, outside the presence of the jury, the prosecutor expressed her intention to prove all five of defendants priors alleged in the information, and she explained which documents she intended to present to the jury regarding the priors. The trial court then asked defendant whether there were any jury instructions that he wished to provide to the court. Defendant stated, Well, um, I would like you to recall her opening statement. After the trial court asked for clarification, the following exchange took place:

Defendant Cummings: What I mean is, she [the prosecutor] said, okay, on or about, you know what I mean, October, know what I mean, 1st, 07, Cummings committed a crime, know what I mean, of violence or force or whatever.^[[3]]

The Court: Yes.

Defendant Cummings: I want them to remember this, because it was already stated that no, Cummings, I cant say it was Cummings that did it, no, he didnt have any of my property when he was arrested or none of that. So Im just saying

The Court: All right. Well, statements of counsel is not evidence, soand Ill instruct them that. [] What I want to know is if you have any specific instructions that you want me to give. [] The way the trial will go from this morning, for example, is that shes going to be presenting, I believe, certainall of your prior convictions.

Defendant Cummings: Excuse me. May I ask you

The Court: And then after that, shes going to rest. And then after that is your opportunity to present whatever evidence you wish.

Defendant Cummings: Okay. This is what I would like.

The Court: Okay.

Defendant Cummings: I want it to be known that you already done stated that the crimes that was committed against him, they cant use any of them passions, them thoughts or whatever toward this; right?

The Court: Right.

Defendant Cummings: So therefore, mypainting a picture of my past is the same difference. Theyre not to go off of that, know what I mean?

The Court: Right. I have an instruction to that effect.

Defendant Cummings: Okay. ThatsI just want that noted.

The Court: Okay. All right. Anything else?

Defendant Cummings: No.

The trial court then asked if defendant planned to take the stand, and he stated that he planned to testify on his own behalf. When the jury returned, the prosecutor presented evidence of defendants five prior convictions. Defendant then testified. After the prosecutor cross-examined defendant, the trial court asked defendant, The five prior convictions that have been submitted here for consideration, are thosewere you convicted of those five prior convictions? Defendant testified, Actually, I did time on whatever conviction I was convicted for. Yeah, I did time already.

The jury found defendant guilty as charged and found all five prior conviction allegations to be true. The trial court sentenced defendant to the upper term of five years for the robbery, with an additional three years for the prison priors, for a total of eight years in prison.[4] This timely appeal followed.

II.
Discussion

Defendants sole argument on appeal is that the trial court erred by failing to offer him the opportunity to elect to bifurcate the trial on the truth of his prior convictions. It is well settled that a trial court may order that the determination of the truth of a prior conviction allegation may be determined in a separate proceeding after the jury has returned a guilty verdict on the charged offense. (People v. Calderon (1994) 9 Cal.4th 69, 75.) However, although the value of bifurcating the determination of the truth of a prior conviction allegation from the determination of guilt of the charged offense has been widely recognized (id. at pp. 75-76), the trial court has no sua sponte duty to bifurcate the proceedings. (People v. Barre (1992) 11 Cal.App.4th 961, 965 [trial court properly submitted prior-conviction allegation to jury where pro per defendant did not request it to be bifurcated].) Because defendant did not request bifurcation, he forfeited any challenge to having the robbery charge and his prior convictions tried together.

Defendant argues that the trial court should have construed his statements during the discussion regarding jury instructions as a request for bifurcation, and that the trial court erred in not specifically advising defendant of his right to a bifurcated trial. Defendant stated during an exchange about whether he had proposed jury instructions, I want it to be known that you already done stated that the crimes that was committed against him, they cant use any of them passions, them thoughts or whatever toward this; right? It is unclear what defendant was requesting when he made this statement; however, we disagree with defendants argument that the statement could reasonably be interpreted as a request to bifurcate.

We likewise do not construe defendants question about whether [t]hey (presumably, the jury) could not rely on painting a picture of [his] past as a request to bifurcate. To the extent that defendant was expressing concern over the proper use of the prior conviction allegations, we note that the court adequately instructed the jury on that point. Jurors were instructed that they were not to consider the allegations of the prior convictions as proof that defendant committed second degree robbery. (CALJIC No. 17.25.) Consistent with this instruction, the prosecutor stated during her closing argument, Im going to tell you this and the judge is going to tell you this and I cannot stress this enough. [] You do not use those prior convictions to say hes guilty of robbery. You do not. It is not proper. [] You will get an instruction that says it is not proper. And they are not there for you to go: Oh, my gosh, hes got five prior felony convictions so Im going to say hes guilty of the robbery. [] It is not proper for you to do that. [] You make that determination separate as to the prior convictions from this incident. And thats why you start with the robbery. Once you have found the defendant guilty, then you would move on to the prior convictions. In short, jurors were correctly instructed that they were not to use defendants prior convictions to prove the current offense. (People v. Burch (2007) 148 Cal.App.4th 862, 868-869 [any error in trying charged crime and prior together harmless because jury instructed that it was not to consider prison prior allegation in determining defendants guilt of charged crime].) The trial court was under no additional obligation to bifurcate the trial absent a specific request from defendant to do so.

Even assuming that defendant had not forfeited his argument, he cannot demonstrate prejudice from any alleged error in failing to bifurcate. People v. Calderon, supra, 9 Cal.4th 69, recognized that when it is clear prior to trial that the defendant will testify and be impeached with evidence of the prior conviction [citation], denial of a request for a bifurcated trial generally would not expose the jury to any additional prejudicial evidence concerning the defendant. Under such circumstances, a trial court would not abuse its discretion in denying a defendants motion for bifurcation. (Id. at p. 78, fn. omitted; see also People v. Burch, supra, 148 Cal.App.4th at p. 868 [no gross unfairness to deny request to bifurcate where defendant testified and convictions properly used for impeachment purposes].) Here, the trial court granted the prosecutions in limine motion to use three of defendants five convictions (two of the prison priors and one of the convictions for which defendant received probation) for impeachment purposes, so evidence of those convictions would have been before the jury even absent bifurcation. Defendant argues that when the trial court gave the prosecution permission to present proof of appellants prior convictions before the jury, it did not know appellant intended to testify. Although technically this may be true, defendant told the trial court twice that he intended to testify before any evidence of his prior convictions was presented.[5] We dismiss as speculation defendants claim that had he properly been afforded the option to bifurcate the proceedings, he might not have taken the stand at all. Although it is true, as defendant argues, that the jury would not have learned about all five prior convictions for impeachment purposes had the trial been bifurcated, we disagree with defendants argument that the presentation of two additional prior convictions was so unduly prejudicial that reversal is required. We also agree with respondent that the evidence of defendants guilt was overwhelming, and defendant was therefore not prejudiced by any alleged failure to bifurcate the trial.

III.
Disposition

The judgment is affirmed.

_________________________

Sepulveda, J.

We concur:

_________________________

Ruvolo, P.J.

_________________________

Reardon, J.

Publication courtesy of California free legal advice.

Analysis and review provided by Carlsbad Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

[1] All statutory references are to the Penal Code.

[2] Although the record is unclear on this point, we presume that the trial court believed it was necessary to prove to the jury the two prior convictions that did not result in prison commitments in order to comply with Cunningham v. California (2007) 549 U.S. 270, which requires that 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. (See also Blakely v. Washington (2004) 542 U.S. 296, 301.)

[3] Defendant assumes on appeal that this was a reference to the prosecutors opening statement; however, a transcript of the parties opening statements is not included in the record on appeal. We therefore have no way of verifying whether, as defendant claims, the prosecutor specifically told the jury of appellants prior convictions during her opening statement. In fact, the record suggests the contrary. Defendant spoke about a reference in the prosecutors opening statement to a crime he committed on October 1, 2007, the date of the charged crime, not the prior convictions.

[4] Defendant also was sentenced in another docket to a consecutive eight months in prison for violating the terms of his probation by committing the robbery.

[5] When the trial court asked defendant after the first day of trial whether he planned to testify, defendant answered, Yeah, I want to take the stand After the prosecutor explained the next morning what evidence she planned to present to prove the prior convictions, the trial court then confirmed with defendant that he planned to testify.