P. v. Swafford

Filed 8/30/06 P. v. Swafford CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County. Barbara R. Johnson, Judge. Reversed in part with directions and affirmed in part.

________

Carol S. Boyk, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Suzann E. Papagoda, Deputy Attorneys General, for Plaintiff and Respondent.

_________

Bruce Swafford appeals from the judgment entered following a jury trial that resulted in his conviction of burglary and grand theft and acquittal of two counts of petty theft. He contends that because a 1995 prior burglary conviction was later reduced to a misdemeanor, the trial court erred when it allowed him to be impeached with that prior felony. He also contends that a one-year sentence enhancement for a prior prison term must be stricken because he never admitted having served a prison term and the prosecution presented no evidence to prove that he had.

Defendant does not challenge that he suffered a felony conviction for burglary in 2000. As we shall discuss, because defendant received a suspended prison sentence for his 1995 burglary conviction, it, too, was a felony. Defendant thus was subject to impeachment with the 1995 conviction, even though the conviction was set aside and the criminal felony action was dismissed upon termination of his probation. The sentence enhancement finding, however, must be reversed because defendant did not admit the alleged prison term, and the prosecution presented no evidence to support the truth of the enhancement.

FACTS

On June 16, 2004, about 9:30 p.m., defendant carried an empty box for a DVD player into a Wal-Mart store on South Crenshaw Boulevard in Los Angeles. A store employee placed a pink refund sticker on the box. Defendant then placed the box in a shopping cart and went upstairs to the electronics department. Lisa Williams, a store loss prevention officer, followed him, while Maria Carbajal, her partner, placed him under camera surveillance.

While at the electronics department, defendant first selected, then put back, various DVDs from a bargain DVD rack. He then walked over to a display of DVD players, picked out a new DVD player in its box, and put it into his cart. Afterwards, he placed his own empty box with the pink sticker on the bottom display shelf. Defendant next selected and put in his cart a box containing a hundred CDs, as well as licorice and bottled water. At the customer service department, he presented a receipt dated the same day at 7:08 p.m. for a DVD player and a 100-count box of CDs. He received $424.63 for his return of both items. He was then detained by Wal-Mart employees.

Defendant was charged with two counts of petty theft with prior convictions, one count of second-degree commercial burglary, and one count of grand theft. At his trial, defendant testified in his defense. He denied stealing from Wal-Mart. He testified that at the time of the incident, he had almost $600 in cash in his possession and he was at Wal-Mart to return the DVD player he had bought earlier that day, because he found a similar one for $79 at a pawnshop. A store clerk placed a pink sticker on his DVD player box. Defendant explained that he went to the DVD player display to look for a different model and that after changing his mind, he put back the boxes he had pulled out to inspect. At the customer service department, defendant told the clerk he wanted to return his DVD player and buy the other items. He denied he was told his DVD box was not scanning properly or that the box had no pink sticker.

On direct examination, defendant admitted he had been convicted of theft-related offenses both in 1995 and 2000. On cross-examination, over defense objections, he acknowledged that both convictions were felony convictions for second-degree commercial burglary. The jury found defendant guilty of burglary (Pen. Code § 459; count 2)^[1] and grand theft (§ 487, subd. (a); count 3) but acquitted him on the two counts of petty theft.

On the burglary defendant was sentenced to two years plus a one-year prior prison term enhancement (§ 667.5, subd. (b)) for a total of three years in prison. His sentence of two years on count 3 was stayed (§ 654). At sentencing, the trial court noted its understanding that defendant had admitted a prior conviction "for purposes of 667.5(b)," and defense counsel said, "Yes[.]" Earlier, court and counsel had discussed the possibility of defendant admitting to a prior prison sentence for purposes of section 667.5, subdivision (b), but he only admitted to one prior conviction for purposes of section 666 (petty theft with a prior). But following the colloquy at sentencing, the court added the one-year sentence enhancement under section 667.5, subdivision (b). Defendant filed a timely notice of appeal.

DISCUSSION

1. Impeachment with 1995 Prior Conviction Proper

Defendant contends that the court committed error when it permitted the prosecution to impeach him with his 1995 burglary conviction because that conviction had been reduced to a misdemeanor. We disagree. The record reveals that at least for impeachment purposes, defendant suffered a prior felony burglary conviction in 1995.

The court held a hearing pursuant to Evidence Code Section 402 regarding whether the 1995 conviction could be used to impeach him. Defense counsel argued that because defendant was placed on probation and the conviction thereafter was reduced to a misdemeanor and dismissed (§ 1203.4), according to People v. Field (1995) 31 Cal.App.4th 1778, the conviction could not be used for impeachment. Defense counsel claimed to have proof of the dismissal. The court explained that under Evidence Code section 788, subdivision (c), an exception existed for a defendant witness and ruled that defendant could be impeached with both his 1995 and 2000 burglary convictions. Thereafter, on cross-examination the prosecutor did impeach the defendant with both convictions.

We conclude that the trial court properly found defendant's 1995 burglary conviction to be a felony. The record reflects that in 1995, defendant suffered a felony conviction for burglary (§ 459) and that the burglary was of the second degree. (§ 460.) He was sentenced to prison for the 16-month low term (see §§ 17, subd.(a), 18, 461, subd. 2), but execution of sentence was suspended. The only evidence in the record regarding the aftermath of this 1995 conviction comes from a probation officer's report, which notes, "ON 10-30-95 DEFENDANT CONVICTED OF 459 PC (BURGLARY:SECOND DEGREE), FELONY, SENTENCED TO 16 MONTHS STATE PRISON SUSPENDED SENTENCE, 49 DAYS JAIL; ON 5-12-98 PROBATION TERMINATED, REDUCED TO MISD. PER 17 PC, CONV. SET ASIDE & DISMISSED PER 1203.4 PC." (Caps. and bold in original.)

By operation of law, the trial court declared defendant's 1995 burglary conviction to be a felony when the court sentenced him to state prison. (§ 17, subd. (a); see also People v. Wood (1998) 62 Cal.App.4th 1262, 1267.) The mere recital of "REDUCED TO MISD. PER 17 PC" in the probation report is not sufficient in itself to prove the reduction and dismissal of defendant's 1995 felony conviction. (See Kilroy v. State (2004) 119 Cal.App.4th 140, 145 ["Courts may not take judicial notice of allegations in affidavits, declarations and probation reports in court records because such matters are reasonably subject to dispute and therefore require formal proof."]) "It is appellant's burden to affirmatively demonstrate error by an adequate record; error is never presumed. [Citations.] That burden has not been sustained here." (People v. Blackwood (1983) 138 Cal.App.3d 939, 949.)

Whatever the significance of the quoted statement from the probation report, a plain reading of the statute in question indicates that defendant's contention -- that on May 12, 1998, the trial court reduced his 1995 felony conviction to a misdemeanor pursuant to subdivision (b)(3) of section 17 -- is legally impossible. Penal Code section 17 provides, in pertinent part, "(b) When a crime is punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following circumstances: . . . (3) When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor." (§ 17, subd. (b)(3), italics added.) This provision was originally added by an amendment of section 17 in 1963. (Stats. 1963 c. 919, p. 2169-2170 § 1.) "The apparent purpose of the 1963 amendment was to implement the power of a trial court, when it suspends imposition of sentence, to enable the court to either immediately declare that the offense is a misdemeanor or to wait until the probationary period has been satisfactorily completed before doing so." (Meyer v. Superior Court (1966) 247 Cal.App.2d 133, 139.)

In this instance, the trial court did not suspend imposition of sentence, but execution of the sentence. Because the court sentenced defendant to prison for a 16 month term, it clearly did not grant him probation without imposition of sentence. Accordingly, subdivision (b)(3) of section 17 is factually inapplicable, and defendant's reliance on that provision must fail. (People v. Wood, supra, 62 Cal.App.4th at 1267-1268.) Nor does any other provision of section 17 allow reduction of defendant's felony to a misdemeanor. (See §17, subds. (b)(1) [where trial court imposes a sentence other than prison]; (b)(2) [where defendant is committed to California Youth Authority].)

Since defendant's 1995 felony conviction could not be reduced to a misdemeanor under section 17, subdivision (b), it was available to impeach him when he took the stand in his own defense, even though the accusatory pleading in that case was dismissed pursuant to section 1203.4. Upon successful completion of probation, a criminal defendant's conviction may be set aside and the underling felony criminal action dismissed, and the defendant then is "released from all penalties and disabilities resulting from the offense of which he . . . has been convicted. . . ." (§ 1203.4, subd. (a).) As a general rule, a conviction expunged under section 1203.4 cannot be used to impeach a witness. However, "This rule does not apply to a criminal defendant who takes the stand in his own trial; such a defendant may be impeached with a conviction that had been expunged pursuant to section 1203.4." (People v. Field, supra, 31 Cal.App.4th 1778, 1787, fn. 4; see also People v. James (1940) 40 Cal.App.2d 740, 746-747; Evid. Code, § 788, subd. (c) [exception based on dismissal under section 1203.4 to rule allowing impeachment of witness with prior felony conviction "does not apply to any criminal trial where the witness is being prosecuted for a subsequent offense"].)

As such, the trial court properly allowed the prosecution to impeach defendant with the 1995 prior felony conviction.

2. One-Year Enhancement for Prior Prison Term Not Supported by Evidence

Defendant contends that the evidence is insufficient to support the imposition of the one-year prior prison term enhancement. (§ 667.5, subd. (b).) We agree.

Before trial, counsel and the court discussed whether defendant would admit his two prior burglary convictions alleged in counts 1 and 4, the two counts of petty theft with prior convictions (§ 666). When the court asked if defendant also would admit the alleged priors for the purpose of the one-year enhancement pursuant to section 667.5, subdivision (b), defense counsel responded, "[T]he problem is that he never went to prison on the 1995 case. He just went to prison on the 2001[sic] matter." The prosecutor stated she was "not asking for the 667.5 at this time" and was "more comfortable just taking both admissions for purposes of 666. I don't need to get into the 667.5." After advisement and waiver of his rights, defendant admitted the 2000 prior conviction alleged in counts 1 and 4 for purposes of section 666. After defense counsel joined, the trial court accepted his admission and found the prior 2000 conviction to be true.

After trial, the jury informed the court that it had a verdict. Before taking the verdict, the court asked how defendant wanted to proceed on the priors if the jury found him guilty. Defense counsel responded that defendant was prepared to admit the "prison prior" but wanted a continuance. The court then advised defendant of certain rights and defendant waived jury trial but, as acknowledged by the Attorney General, no admission was actually ever taken. Sometime thereafter, but before sentencing, the court inquired: "As I understand it, [defendant] has admitted the prior conviction for purposes of 667.5(b); is that correct?" Defense counsel responded: "Yes, Your Honor." Without further proceedings regarding the truth of the prior prison term, the court imposed a sentence of two years plus a consecutive one-year prior prison term enhancement on count 2.

"Imposition of a sentence enhancement under . . . section 667.5 requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction. [Citation.]" (People v. Tenner (1993) 6 Cal.4th 559, 563 (hereafter Tenner).) "Due process requires the prosecution to shoulder the burden of proving each element of a sentence enhancement beyond a reasonable doubt. [Citations.]" (Id. at p. 566.) The appellate court's role is to determine whether the record shows substantial evidence that the prosecution has sustained this burden. (Id. at p. 567.) In Tenner, the Court held that a prosecutor could use an abstract of judgment and commitment form as sufficient proof of a prior prison sentence in lieu of a "prison packet" (records kept by a penal institution), but the latter normally should be used. (Id. at pp. 563, 567.) Thus Tenner requires clear and substantial evidence of prior incarceration to prove an allegation under section 667.5.

A defendant may also admit a prior prison term. (See, e.g., People v. Cardenas (1987) 192 Cal.App.3d 50, 61; People v. Epperson (1985) 168 Cal.App.3d 856, 864-865; People v. Lopez (1985) 163 Cal.App.3d 946, 951; People v. Welge (1980) 101 Cal.App.3d 616, 623.) But in this case, the prosecution presented no evidence to prove the prior prison allegation, and the record shows that defendant never admitted it. As such, we conclude that the one-year enhancement here must be stricken for lack of evidence.

The Attorney General contends that although the prosecutor in the pretrial colloquy specifically stated that she was "not asking for the 667.5 at this time," nevertheless, the admission of the prior conviction for purposes of section 666 also amounted to an admission of the prior prison term alleged in the criminal information. In other words, although the prosecutor implicitly promised that the admission was not to be used to prove a prior prison term, the Attorney General now wishes to use it that way. This we will not allow. (See People v. Quartermain (1997) 16 Cal.4th 600, 617-618 [rejecting prosecution's effort to use statements by defendant in violation of agreement and citing Mabry v. Johnson (1984) 467 U.S. 504, 509-510 regarding "principle that when a prosecutor makes a promise that induces a defendant to waive a constitutional protection and act to his or her detriment in reliance on that promise, the promise must be enforced"].)

The Attorney General also contends that defendant waived his right to challenge the sentence enhancement on appeal by failing to object at sentencing, or alternately, that defendant invited error by acquiescing when the court expressed its understanding that defendant had admitted a prior prison term for purposes of section 667.5, subdivision (b). We reject both these arguments.

Normally, defendants waive their right to challenge sentencing decisions on appeal if they fail to object at the trial court level. (People v. Welch (1993) 5 Cal.4th 228, 234.) The sentencing waiver doctrine applies "to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices." (People v. Scott (1994) 9 Cal.4th 331, 353.) Court error in imposing an unauthorized sentence, however, can be raised at any time. (Id. at p. 354.) A sentence is "unauthorized" where "it could not lawfully be imposed under any circumstance in the particular case" (id. at p. 354) and involves "pure questions of law" as opposed to factual or discretionary determinations. (People v. Welch, supra, 5 Cal.4th at p. 235.) Listing numerous examples where courts found unauthorized sentences, the Court in Welch found consensus that appellate review was appropriate where there was "clear and correctable legal error, particularly where the defendant might otherwise spend too much or too little time in custody." (Id. at p. 236.)

In this case, the lack of either a proper admission or substantial evidence of defendant's prior prison term is a legal error that concerns the amount of time he must spend in custody and is clear and correctable without factual dispute. (See People v. Breazell (2002) 104 Cal.App.4th 298, 305.) We hold that the imposition of a one-year prior prison sentence enhancement without substantial evidence is an unauthorized sentence for purposes of the waiver doctrine.

As to invited error, the doctrine has "little significance in criminal cases" and does not apply to "error that is reversible per se[.]" (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 31, p. 498.) The doctrine mostly has been applied to erroneous instructions requested by the defendant, but sometimes also to misconduct of the prosecutor induced by improper remarks of defendant's counsel. (Id. at p. 498.) It is the trial court's, and not defense counsel's, duty to apply correct law, and this is negated only in " 'special situations' in which defense counsel deliberately or expressly, as a matter of trial tactics, caused the error." (People v. Tapia (1994) 25 Cal.App.4th 984, 1030.) Thus, "Error is invited only if defense counsel affirmatively causes the error and makes 'clear that [he] acted for tactical reasons and not out of ignorance or mistake' or forgetfulness. [Citation.]" (Id. at p. 1031, italics added.) Defense counsel's acquiescence in a trial court's mistake will not constitute invited error unless the record shows that counsel had a tactical purpose in acquiescing. (People v. Moon (2005) 37 Cal.4th 1, 28.)

Since the Court in Tenner established that due process requires the prosecution to establish all elements of a sentence enhancement beyond a reasonable doubt (People v. Tenner, supra, 6 Cal.4th at p. 563), failure to require such proof of a section 667.5 allegation is reversible per se. In this case, defense counsel took no affirmative action to cause the error, but only acquiesced in the trial court's misunderstanding. As in Moon, supra, 37 Cal.4th at page 28, the record here shows no tactical purpose in acquiescing; rather, it suggests a shared mistake. The invited error doctrine does not apply.

DISPOSITION

We reverse the finding that defendant suffered a prior conviction pursuant to section 667.5, subdivision (b). We vacate the sentence and remand the case for a new trial on the enhancement and for resentencing. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

ROTHSCHILD, J.

We concur:

MALLANO, Acting P.J.

VOGEL, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

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