P. v. Canty

Filed 4/24/07 P. v. Canty CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Tehama)

----

Defendant Aaron Bruce Canty was found guilty by a jury of assault with a deadly weapon. The jury also found that defendant inflicted great bodily injury in the commission of that offense. Defendant admitted he had served two prior prison terms. Probation was denied and defendant was sentenced to state prison for nine years, which included an upper term of four years for the underlying assault offense.

Defendant appeals, raising various claims of instructional and sentencing error. He also contends his admissions regarding his prior prison terms were invalid. We agree with defendants contention regarding his admissions and, accordingly, we will reverse the courts findings on the prior prison term allegations and remand the cause to the trial court for resentencing or (at the Peoples election) retrial of the prior prison term allegations. We will otherwise affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On May 5, 2005, at approximately 7:30 p.m., Gilbert Lee May was standing on a street corner with 16-year-old David J., when two individuals came around the corner and one of them struck May on the head with a bottle. May sustained a wound that required 59 stitches.

At trial, May testified he did not see anybody when he got hit in the head. However, shortly after the incident, May told an officer that it was defendant who struck him with the bottle. May knew defendant prior to the incident because his niece had a child with defendant and May was a friend of defendants family. May acknowledged telling the officer that defendant was his assailant, claiming he reported this because everybody said [defendants] name when [he] woke up and because he had had many conflicts with defendant in the past. Defendant had attacked May on two prior occasions, but May testified it was my fault the other times. May responded affirmatively when asked whether he wanted the jury to find defendant not guilty.

J. (the individual who was with May when the incident occurred) testified that the taller of the two men, who was Caucasian, hit May. J. said he had seen Mays assailant before and that defendant did not look like the person who did it. J. acknowledged he told a police officer that defendant committed the offense, maintaining he based his identification on what May had said. J. was unable to say whether defendant was the person who committed the offense. He testified that he was high on methamphetamine when the incident occurred and was not in [his] right mind.

Another witness, 15-year-old J. S., testified that she was a block away when May was assaulted but she did not clearly see the assailants face. According to J. S., the two individuals who approached May were Caucasian and Hispanic, but she was not sure which one was the assailant.

S. S., J. S.s 13-year-old sister, testified she saw May get hit with the bottle. According to S. S., the assailant was tall and sort of bald and was with a short, Hispanic man. The two individuals walked by her house after the incident, and one of them, whom she identified as defendant, said something to her. S. S. identified defendant as Mays assailant.

Police Sergeant Donald Atkins interviewed S. S. and J. S. after the incident and testified they told him that defendant hit May with the bottle.

Defendant testified that May had stayed at his residence in the past and had stolen a mountain bike from him. Defendant acknowledged he previously hit May for lying to him. Earlier on the day of the incident, defendant confronted May about a necklace he believed May had stolen from defendants daughter, and May admitted he had taken the necklace. May told defendant he would get the necklace back. Defendant was pretty upset.

Later in the day, defendant was with an acquaintance whom he knew only as Will. Defendant explained to Will why he was upset. As they walked down the street, defendant saw May and J. and pointed out May as the person who had taken the necklace. According to defendant, as they approached, he started to talk to May when [o]ut of the corner of [his] eye [he] s[aw] a bottle swinging and then May was on the ground. Defendant and Will walked away without saying anything. According to defendant, Will was Caucasian, about an inch shorter than him with dark hair and glasses.

The day after the incident, a police officer interviewed defendant. Defendant stated that just prior to the incident, he blacked out. When asked why he hit May, defendant responded that [i]t was something to do. Defendant testified he was confused during the interview with the police officer. He testified he wanted to be cooperative but did not want to incriminate Will. According to defendant, during the interview, he did not realize that the witnesses had identified him and he was under the impression that . . . they would have known that [Will] did it.

DISCUSSION

I

Instruction With CALJIC No. 2.05

Defendant contends it was error for the court to instruct the jury with CALJIC No. 2.05, which addresses the efforts of others to procure fabricated evidence for a defendants benefit. Although the record discloses that the instruction was given at defendants request, inexplicably, the People concede it was error (albeit harmless error) to give the instruction. We conclude any error was invited by defendant.

As the Supreme Court has explained, [t]he doctrine of invited error bars a defendant from challenging an instruction given by the trial court when the defendant has made a conscious and deliberate tactical choice to request the instruction. (People v. Lucero (2000) 23 Cal.4th 692, 723; see People v. Jackson (1996) 13 Cal.4th 1164, 1223.) It is well settled the doctrine of invited error precludes the defendant from complaining about an instruction given at his own request. (People v. Ojeda-Parra (1992) 7 Cal.App.4th 46, 51.)

For the most part, the written jury instructions used in the present matter contained boxes to indicate which party requested the instruction and whether it was given, refused, or withdrawn. While the boxes were not filled in on most of the written instructions, the written version of CALJIC No. 2.05 indicates it was requested by defendant.

During a brief on-the-record discussion of jury instructions, the trial court listed CALJIC No. 2.05 among the opening instructions it planned to give to the jury pursuant to discussions that apparently took place off the record. The court instructed the parties to interrupt with any objections as it went through the instructions that would be given to the jury. Neither party stated any objection to CALJIC No. 2.05.

Furthermore, it bears mentioning that during a break in voir dire, the victim ranted to potential jurors eating lunch outside the courthouse that defendant was crazy and hit him over the head with a bottle. Three individuals who became members of the jury were among those present when the victim made various statements of this sort. In light of the conflict between the victims out-of-court statements and his testimony, as well as similar conflicting statements made by several other witnesses, it was reasonable for defendants attorney to request an instruction informing the jury that if it found an effort had made by another person to procure false evidence for the defendants benefit, it could not impute a consciousness of guilt to defendant unless it found defendant authorized this effort. (See CALJIC No. 2.05)

In any event, as the instruction now objected to by defendant was given at his request, defendant is not entitled to relief.

II

Claim Of Third Party Culpability

Defendant claims his trial attorney rendered ineffective assistance of counsel by failing to request a pinpoint instruction on third party culpability. We disagree.

A defendant is entitled to an instruction that pinpoints the theory of his defense upon request. (People v. Saille (1991) 54 Cal.3d 1103, 1119.) However, except in the case of an affirmative defense, such instructions need not be given sua sponte. (Ibid.; People v. Whitler (1985) 171 Cal.App.3d 337, 343 (conc. opn. of Sims, J.).) [I]nstructions relat[ing] particular facts to a legal issue in the case . . . such as mistaken identification or alibi . . . are required to be given upon request when there is evidence supportive of the theory, but they are not required to be given sua sponte. (Saille, at p. 1119.) As defendant failed to request a pinpoint instruction, the trial court did not err in failing to give one.

Nor did defendants trial attorney render ineffective assistance of counsel by failing to request a pinpoint instruction. A defendant claiming ineffective assistance of counsel under the federal or state Constitution must show both deficient performance under an objective standard of professional reasonableness and prejudice under a test of reasonable probability of a different outcome. (People v. Ochoa (1998) 19 Cal.4th 353, 414.) In People v. Earp (1999) 20 Cal.4th 826, 887, the Supreme Court held that, even if the trial court erred by not giving a requested pinpoint instruction on third party culpability, the error was harmless because the jury was properly instructed that the prosecution was required to prove defendants guilt beyond a reasonable doubt and it was clear that the defense theory was that someone else had committed the offenses. The court concluded that, under such circumstances, it was not reasonably probable the jury would have reached a different verdict had it been given a pinpoint instruction on third party culpability. (Ibid.)

The same reasoning applies here. The jury was properly instructed on reasonable doubt, and the concept that the jury must acquit a defendant if it believes the evidence supports that someone else committed the crime is implicit in the instruction on reasonable doubt. Defendants trial attorney argued there was a reasonable doubt defendant committed the assault, pointing out that the victim lacked credibility and the other witnesses raised doubts as to whether defendant committed the offense. Under these circumstances, it is not reasonably probable that if counsel had requested a third party culpability instruction, and the court had given it, the jury would have reached a different conclusion.

III

Admission Of Prior Convictions

Defendant contends his pretrial admission to two prior prison terms was not voluntary and intelligent. For reasons that follow, we agree.

Before trial commenced, defendants attorney informed the court that defendant would admit the prior convictions, after which the following exchange took place:

THE COURT: You have the right to have a jury trial in this matter. If you admit these priors, you will not have a jury trial on them. [] Do you understand, and give up your right to a jury trial on these priors only?

THE DEFENDANT: On one of them.

[DEFENDANTS ATTORNEY]: Your Honor, I am just going to proceed with the priors at trial, then.

THE COURT: Very good. The choice is we try them before the jury, or you admit them back here. Right now we are going to try them in front of the jury.

THE DEFENDANT: Is it the same jury?

THE COURT: Same jury. Do you have any further questions you want to ask of your attorney before we proceed with this matter?

THE DEFENDANT: Yeah.

THE COURT: You may step outside and talk with your client. Sir, right now the only thing, when you talk, you can talk about whatever you want, but all we are going to do when you come back in is we will decide whether these priors are admitted by you without the jury hearing them or whether you plead to them. It is your right.

THE DEFENDANT: Is it before or after?

THE COURT: If you admit them, it will have to be before. If you deny them, they will be submitted to the jury for the jurys decision.

THE DEFENDANT: After my trial?

THE COURT: No.

THE DEFENDANT: So it will be before my trial, so they will be aware of my convictions?

THE COURT: Yes. Counsel you may step out and talk to your client.

After an off-the-record discussion, defendant was advised of and waived his trial rights as to the prior prison term allegations and admitted the allegations.

Defendant contends the trial court erred when it advised him that if he did not admit the prior prison term allegations, the jury would adjudicate the priors before determining his guilt on the underlying charge. This contention has merit.

[T]he standard for determining the validity of a guilty plea was and remains whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. . . . [T]he record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily. (People v. Howard (1992) 1 Cal.4th 1132, 1177.)

[A] defendants waiver of the right to jury trial may not be accepted by the court unless it is knowing and intelligent, that is, made with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it, as well as voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception. (People v. Collins (2001) 26 Cal.4th 297, 305.)

Although we believe it unlikely that the trial court truly intended the jury to decide the truth of the prior prison term allegations before hearing evidence on the underlying offense, this is what was conveyed to defendant. Consequently, defendant was not given an accurate description of the choices available to him regarding the adjudication of the prior prison term allegations. To the contrary, defendant was led to believe that if he did not admit the prior prison term allegations, the jury would hear about his past felony convictions before receiving any evidence on the current offense. Defendant expressed a desire to have a trial on at least one of the prior prison term allegations against him. His decision to admit the allegations appears to be the direct consequence of being advised that the alternative was to try the prior prison term allegations first. Under these circumstances, defendants admission was not knowing and voluntary.

The People claim it was sufficient that defendant was advised of and waived his trial rights. But, as previously discussed, a waiver based on material misinformation from the trial court as to the procedures it would utilize if an admission was not entered cannot be deemed knowing and voluntary. The People also maintain the trial court did not misadvise defendant because it was permissible for the court to decline to bifurcate the prior prison term allegations from the underlying charge. But regardless of whether a refusal to bifurcate would have been in the trial courts discretion, there is no legal authority to support a procedure in which the presentation of evidence on prior convictions precedes trial on the underlying offense.

Defendant raises two other contentions regarding the validity of his admissions that bear only brief mention. He contends [n]othing in this record establishes that before he admitted the allegations, he knew or understood his admissions would establish the truth of the prior prison terms. It is difficult to imagine what defendant thought the effect would be of admitting the priors other than to establish that they were in fact true. Defendant does not explain what might have led him to believe otherwise and, accordingly, we reject this claim.

Defendant also maintains he was not advised of the specific penal consequences of his admissions. Again, defendant fails to explain which penal consequences he was not apprised of, but the record reflects the trial court advised defendant that if he was found guilty of the underlying offense, the prior allegations could add up to one year each to defendants sentence. No further advisement was required.

Nonetheless, we conclude defendants admissions to the prior prison term allegations were not the product of a knowing and intelligent waiver. Accordingly, we reverse the findings on these allegations and remand the matter to the trial court. As defendant will have to be resentenced, we do not address defendants arguments relating to his sentence.

DISPOSITION

The trial courts findings on the prior prison term allegations are reversed and the sentence vacated. The judgment is otherwise affirmed. The cause is remanded to the trial court for resentencing or (at the Peoples election) retrial of the prior prison term allegations.

ROBIE , J.

We concur:

DAVIS, Acting P.J.

BUTZ , J.

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