P. v. Wilson

Filed 3/6/07 P. v. Wilson CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

I. INTRODUCTION

After a jury trial, appellant was convicted of one count of second degree burglary. (Pen. Code,  459^[1].) The jury also found that he had suffered five prior strikes. ( 667, subds. (d) & (e), & 1170.12, subds. (b) & (e).) On appeal, appellant claims: (1) he was prejudiced by ineffective assistance of counsel in connection with plea negotiations with the District Attorneys office, (2) the trial court erred in allowing the prosecution to admit, under Evidence Code section 1101, subdivision (b)), evidence of two prior bad acts by appellant, and (3) he was entitled to a jury trial on the issue of his identity regarding his prior convictions. We disagree with all of these contentions and hence affirm.

II. FACTUAL AND PROCEDURAL BACKGROUND^[2]

On the evening of July 12, 2004, a man named Sam Le was using the facilities at a 24-Hour Fitness Center on Second Street in San Francisco. Before working out there, he placed a backpack and his street clothes inside a locker. He also placed his wallet inside a zipper-pocket in his jacket and his watch inside his backpack. He then locked the locker with a padlock and key the gym supplied. While lifting weights in the gym, Le left the key to the padlock on a bench within his line of sight, but then forgot to take it with him when he moved to a different location in the gym. When he returned for it, the key was gone.

Le had to wait a while before he could arrange for the gym manager to open his locker; during that time, he went in and out of the locker room several times. At one point, he saw an African-American male browsing in his locker with the door to it open and the lock on the bench in front of the locker. The man was about five feet and nine inches tall and with an afro hair style. He was wearing a green T-shirt and blue jeans. Le started to approach the man, whereupon the latter closed the locker, started to walk slowly out of the room, saying to Le: Oh, your locker was open.

Le promptly went through the items in the locker and determined that two credit cards were missing from his wallet. Le then started to run after the man he had seen in his locker, shouting: He stole my credit card, thats him. Le followed the man out of the gym and onto the street to a car, a black Lincoln sedan, which was parked near the gym. Le and a fitness staff member named Michael Hunt tried to stop the man, but were unsuccessful in doing so. Their efforts were, however, witnessed by another gym staff member, one Anthony Veloz, who later identified appellant as the person in a photo lineup who most resembled the man he saw fleeing the gym.

Although unsuccessful in stopping the burglar from fleeing in his car, Le was able to note the license number and he repeated it to himself several times until he got to a phone in the gym and repeated it to a 911 operator. Le was not, however, able to identify the suspect.

Appellant was determined to be the registered owner of the car bearing the license number reported by Le.

A warrant was issued for appellants arrest and he was later picked up. Les credit cards were never found.

On March 3, 2005, a two-count information was filed charging appellant with, in order, second degree burglary and assault with a deadly weapon. ( 459 & 245, subd. (a)(1). The information also alleged that appellant had suffered five prior strikes under the code sections previously cited.

A jury trial commenced in May 2005. The prosecution presented, among others, the witnesses noted above and, additionally, testimony pursuant to Evidence Code section 1101, subdivision (b), concerning two 2003 incidents involving appellant regarding burglaries at other 24-Hour Fitness Centers.

The defense presented evidence from a chiropractor who was treating appellant at the time to the general effect that he was then incapable of running as described by Le and Hunt. Appellants sister also proffered an alibi for appellant for the day in question and the defense presented a memory expert who testified that, in his opinion, Le would have had great difficulty remembering the license plate number of the car in which he saw the burglar fleeing.

On May 16, 2005, the jury found appellant guilty of the second-degree burglary count, but hung on the second, assault, count which was later dismissed. The jury also found all the prior strikes alleged to be true.

On June 23, 2005, appellant filed a motion for a new trial, which the trial court denied on August 1, 2005; on the same date it sentenced appellant to a total of six years in state prison. Appellant filed a timely notice of appeal.

III. DISCUSSION

As noted above, appellant presents three arguments in favor of reversal of his conviction on the first count of the information filed against him, i.e., second degree burglary. We will discuss these in the order presented in his opening brief.

A. Alleged ineffective assistance of counsel.

Appellant asserts, first of all, that he was prejudiced by the ineffective assistance of his trial counsel in not conveying to him a pre-trial plea offer by the district attorney of a two-year term in state prison in exchange for a plea of guilty. This contention was made as partalbeit a very brief and conclusory partof appellants motion for a new trial and was a principal subject of an August 1, 2005, hearing on that motion.

According to appellants testimony, on the day of the section 995 hearing and pretrial conference, April 6, 2005, his trial counsel, Deputy Public Defender Elizabeth Hilton, told him there was a plea offer. His testimony regarding what was and was not conveyed to him regarding that offer was as follows:

A: On that day, Ms. Hilton stated to me that the DA, being Mr. Brian Bringardner, had made an offer. And then she quickly said, but I dont think you want to take it. And to my knowledge, I know that I have five strikes, I was looking at 25 to life, and she had already told me that, and when she made that statement that I dont think you want to take it, it led me to believe that it was so unreasonably high that it wouldnt be something I would consider.

Q. At any time during your conversation with Ms. Hilton about the offer made by Mr. Bringardner on April the 6th did she specifically tell you the offer was two years?

A. No, she didnt.

Q. Did she tell you what you would plead? In other words, whether it was burglary or an aggravated assault?

A. No she didnt.

Q. Okay. Now, after April 6th but before the trial date, did you have any conversations with her regarding settling the case?

A. No.

According to appellant, counsel Hilton never doubted her abilities to win this case.

Deputy Public Defender Hiltons testimony at the same hearing was a trifle different. At the time an eight-year veteran of the Public Defenders office, she testified as follows in response to questions from the same deputy district attorney who had successfully prosecuted the case:

Q. And so what, if anything, did you do in response to my conveying a two-year state prison offer to you?

A. Prior to the argument of the 995 I went out into the courtroom. I told him I had an offer. I told him that it was probably one he wouldnt be happy with, and then I conveyed the offer, as is my habit and custom, even when clients are not interested in the offer, even if my recommendation of the offer is a thumbs down, I always convey the offer.

Q. Okay. When you say that you conveyed the offer to Mr. Wilson, can you tell us if you remember what you actually said?

A. I remember he was sitting in the courtroom on the right-hand side. I walked up to him and I told him: You know, I have an offer. Youre not going to like it. And he said something to the effect of: Well, then dont bother telling me. And I said to him: Well, I have to tell you anyway because I have an ethical duty to convey the offer. I said: Its two years state prison.

Q. And how did he respond when you said the offer was two years?

A. No, we are going to take it to trial.

Q. How is it that youre able to remember this today?

A. Oh, hes an unforgettable client.

Hilton did concede that, at the time, she did not press or encourage appellant to accept the plea offer because, in the absence of any witness who could clearly identify him as the locker-burglar, she thought she had a very defensible case. However, she also testified that, when later presented with the 2003 bad acts evidence involving alleged similar locker-thefts (see ante), she felt her case had been weakened. But by then she (a) was focusing on keeping out this evidence (which she did as to three other bad acts evidence) and (b) felt certain, based on prior interactions with the district attorneys office, that the two-year offer was no longer on the table.

Hiltons August 2005 testimony regarding what happened at the section 995 hearing a few months earlier is supported by the record of that hearing, which concluded as follows:

THE COURT: . . .The Court has discussed the case with both counsel. I dont believe a resolution at this point is going to result.

MS. HILTON: I need to convey the offer, but I dont think it will.

THE COURT: All right. Well, why dont you do that, and I can deem it and send it down the hall.

After hearing the testimony of both appellant and attorney Hilton and argument of counsel on the new trial motion, the trial court ruled as follows: All right. There are two major issues raised by this motion for a new trial. One is whether or not there was an offer conveyed and whether counsel discharged her responsibility regarding conveying offers which, of course, are part of counsels requirements under all of the rules of conduct. [] The Court finds that in this case there was an offer conveyed by counsel and that she complied with the requirements of effective assistance of counsel in that regard and did communicate an offer; that there werent continuing conversations about the offer. There has been no evidence presented that there was a further offer or separate offer made at some later time that was never communicated, and I think that in light of the evidence that we have of the one day that an offer was put on the table by the district attorney, that offer was conveyed that day, I dont find that there has been some abdication of the counsels responsibility in that regard.

We have no difficulty in concluding that this finding by the trial court is supported by substantial evidence, i.e.: (1) the testimony of Hilton, (2) the record of the earlier section 995 hearing, and (3) the obvious fact that experienced defense counsel such as Hilton have a professional duty to convey plea offers to their clients. (See, e.g., People v. Brown (1986) 177 Cal.App.3d 537, 549-550 and fns. 13 and 14; In re Alvernaz (1992) 2 Cal.4th 924, 934, fn. 5 and authority cited therein (Alvernaz).) We can and do presume that such professional duties are satisfied.

Likewise, we reject the various corollary arguments regarding ineffective assistance posited by appellant, i.e., that Hilton was ineffective in (a) not telling appellant that, with a two-year prison term, he was likely to serve only one year in prison, (b) concluding, early in the defense of the case, that appellant could likely win, and (c) not rechecking with the prosecution, when she felt appellants case had weakened because of the addition of the two bad acts evidence under Evidence Code section 1101, subdivision (b), to see if the two-year plea offer was still available. All of these corollary arguments were addressed in Hiltons testimony on appellants motion for a new trial. As she explained there: Nobody thats out of custody wants to go in custody, and in view of that and appellants flat rejection of the two-year offer, she saw no need to explain the possibility that he might serve only one year.

Similarly, Hilton explained that she only changed her mind regarding the strength of appellants defense case when the two 2003 bad acts evidence surfaced and, by then and in accordance with standard procedures between the two offices, she was clear in her own mind that the two-year offer was no longer available.

In short, nothing in Hiltons handling of the plea offer amounts to ineffective assistance of counsel. (See Alvernaz, supra, 2 Cal.4th at pp. 936-937.)

B. Alleged error regarding evidence admitted under Evidence Code

section 1101, subdivision (b).

Appellants next argument is that the court erred in granting the prosecutions motion to admit evidence of prior and similar bad acts committed by appellant under Evidence Code section 1101, subdivision (b). More specifically, appellant contends that this ruling was in error because defense counsel did not have timely access to the police reports regarding these acts, as required by sections 1054.1 and 1054.7.

First of all, a time line is highly relevant to this issue. The first of the two alleged bad acts occurred on June 23, 2003, when the San Francisco police detained appellant in a garage at, again, a 24-Hour Fitness Center, and found in his pocket a shaved down key which the police then used to open a locker (not belonging to appellant) in the gym of that center.

The second of the two alleged bad acts occurred a month later, i.e., on July 13, 2003, when a customer at yet another 24-Hour Fitness Center in San Mateo found that his wallet, drivers license, and credit cards were missing from his locker. Two days later, appellant was detained by a San Leandro police officer who found that wallet and the other missing items in a car being driven by appellant.

Again, the acts as to which the charging information related occurred in July 2004 at a 24-Hour Fitness Center in San Francisco.

On April 20, 2005, shortly before trial commenced, the prosecution provided defense counsel with a copy of the police report concerning the July 2003 incident. There is no showing in the record as to precisely when the report concerning the June 2003 incident was provided, but appellants briefs to us clearly suggest that it was provided at the same time as the July 2003 incident report.

On April 27, 2005, the prosecution filed a motion in limine to, among other things, admit into evidence both of these prior bad acts^[3]plus three others. Argument was had on this motion on May 2, 2005, after which the trial court denied the prosecutions motion as to other three bad actsbecause they were not sufficiently similar to that charged in this casebut allowed admission of the June and July 2003 incidents under Evidence Code section 1101, subdivision (b).

The following day, May 3, just before a jury was empanelled, defense counsel moved to exclude any evidence of these two incidents on the basis that the police reports detailing them had not been timely provided to defense counsel by the prosecution. The court heard argument on this motion from both counsel and then denied the motion. Critical to its ruling were, from the record, these facts: (1) the police reports regarding the June and July 2003 incidents were, per the uncontradicted statement of the prosecutor, provided to defense counsel on April 20, 2005, less than 24 hours after the prosecutor had himself received them;^[4](2) six days after receiving the reports, defense counsel had not, because of other business, had an opportunity to review them, and so the court had offered to continue the trial until July 2005 if defendant would waive time; (3) defendant declined to waive time, and so the matter was continued until Wednesday, April 27, 2005, for trial; and (4) in fact, the court did not commence trial that day, but continued it until Tuesday, May 2, thus giving counsel the opportunity to have all day Friday and all day Monday to get ready, and then the weekend to help get ready. . . . I didnt require that counsel provide the written motions in limine until yesterday morning [i.e., Tuesday, May 2, 2005].

The court then concluded on this issue: With regard to the issue today about the timeliness concern, the court does not find that that is a sufficient ground to keep out the evidence relating to these [two incidents], particularly in light of the fact that this has continued as a no time waiver at defendants request. And the court is going to allow the informationjust with regard to those two incidents, the court is going to allow it and does not find that there is a sufficient discovery violation to be inadmissible.

The trial courts ruling on the fact situation before it, was reasonable. In the first place, the main reason defense counsel did not have further time to review and investigate the reports was because her client declined to waive time. Secondly, the law is clear that a failure to comply with the applicable Penal Code provisions ( 1054.1 and 1054.7) must, in order to justify a reversal of a conviction, be prejudicial. (See, e.g., People v. Pinholster (1992) 1 Cal.4th 865, 941; People v. Carpenter (1997) 15 Cal.4th 312, 386-387; People v. Gonzales (1994) 22 Cal.App.4th 1744, 1757-1758.) Third, the cases are also clear that precluding the introduction of evidence as a sanction for late delivery of the prior incidents evidence (the sanction belatedly sought here) should only be used as a last resort, i.e., after other sanctions have failed. (See People v. Edwards (1993) 17 Cal.App.4th 1248, 1264-1266.)

Here, on May 2, 2005, the date before the actual start of trial and the date of the argument on the prosecutions motion in limine, defense counsel (1) fully argued the issue of the admissibility of the evidence of all five incidents that the prosecution wanted admitted into evidence, (2) succeeded in keeping out three of the five incidents (3) never complained that she had had insufficient time to investigate any of them much less requested more time to do so. Under all these circumstances, we find no prejudice in the admission into evidence of the two 2003 incidents or other error regarding the same.

C. Alleged error regarding a bench trial concerning appellants prior convictions.

Finally, appellant contends that, under the federal Constitution, he had a right to a jury trial on all aspects of his alleged prior convictions, including the issue of his identity as the person convicted. But his counsel concedes that this issue is raised solely to preserve it for possible later federal review, because California law is to the contrary. (See People v. Epps (2001) 25 Cal.4th 19, 24-25.) And, of course, for that reason, we must and do also reject this argument. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

IV. DISPOSITION

The judgment appealed from is affirmed.

_________________________

Haerle, Acting P.J.

We concur:

_________________________

Lambden, J.

_________________________

Richman, J.

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

^[2]Other evidentiary material will be summarized in the first two portions of the Discussion section of this opinion.

^[3]Charges were apparently not brought against appellant based on the June 2003 incident, but the July 2003 incident remained open in Alameda County as of the date of trial of this case.

^[4]A supplemental report regarding the July 2003 incident was provided defense counsel on April 27, 2005.