Opinion
A150750
08-29-2018
THE PEOPLE, Plaintiff and Respondent, v. KRISTEN JASON BELL, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Francisco County Super. Ct. No. 226501)
A jury found Kristen Jason Bell guilty of second degree burglary of a motor vehicle (Pen. Code, § 459; count 1), two counts of receiving stolen property (§ 496, subd. (a); counts 3, 4), possession of a burglary tool (§ 466; count 5), and resisting a police officer (§ 148, subd. (a); count 6). The court found Bell committed the crimes while on bail (§ 12022.1, subd. (b)). The court sentenced Bell to five years and three months in county jail, but stayed execution of the two-year on-bail enhancement term.
All undesignated statutory references are to the Penal Code.
Bell appeals. First, Bell argues he was denied his right to a fair and impartial jury when the court denied his challenges for cause. Second, Bell contends the court erred when it refused to split his sentence between a term in county jail and a period of mandatory supervision. The Attorney General concedes the court erred during sentencing. We conclude the error was not harmless. Accordingly, we remand for resentencing, but otherwise affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize the facts relevant to the issues on appeal. We provide additional factual and procedural details in the discussion of Bell's specific claims.
By amended information, the prosecution charged Bell with second degree burglary of a vehicle (§ 459; count 1), attempted second degree burglary (§§ 664, 459; count 2), receiving stolen property (§ 496, subd. (a); counts 3, 4), possession of a burglary tool (§ 466; count 5), resisting, obstructing, or delaying a police officer (§ 148, subd. (a)(1); count 6), and damaging a vehicle (Veh. Code, § 10852; count 7). The prosecution alleged Bell committed the felony offenses in counts 1, 2, and 3 while on bail (§ 12022.1, subd. (b)). It was also alleged Bell served a prior prison term (§ 667.5, subd. (b)). Bell pled not guilty and denied the allegations.
At trial, the jury heard testimony that police officers observed Bell and another person breaking into a rental car parked on Washington Street in San Francisco, California around 6 p.m. on September 16, 2016. Bell was arrested after a brief chase. A police officer searched Bell at the scene and found a "window punch" in his pocket. The jury convicted Bell of all charges, except the charges of attempted burglary (count 2) and damaging a vehicle (count 7), which charges were lesser-included offenses of count 1.
The court found Bell committed the offenses while released from custody on bail, but struck the prior prison term allegation. The court sentenced Bell to three years in county jail on count 1, three years on count 3, and 120 days on count 5. However, the court stayed the sentences on counts 3 and 5 under section 654. The court sentenced Bell to 90 days on count 6, and added two years for the on-bail enhancement, but the court ordered execution of the enhancement term stayed pending Bell's plea or conviction in a separate case. The court dismissed the charges in counts 2, 4, and 7. Thus, in total, the court sentenced Bell to five years and three months in county jail, but stayed execution of two years.
DISCUSSION
On appeal, Bell makes two arguments. First, Bell contends he was not tried by a fair and impartial jury. Second, Bell contends the court erred during sentencing. We reject Bell's first argument, but find Bell's second argument has merit.
I.
The Court Did Not Abuse Its Discretion by Denying Bell's For Cause Challenges
Bell contends that, as a result of the court's erroneous denial of his for cause challenges to three prospective jurors, Bell was required to use peremptory challenges to remove two of them, but the court denied Bell's request for additional peremptory challenges, which resulted in a juror who was biased against him, Mr. H., serving on his jury. We are not persuaded the court abused its discretion in denying Bell's for cause challenge to Mr. H., or to other prospective jurors.
A. Governing Law and Standard of Review
"Challenges for cause are constitutionally guaranteed under the Sixth Amendment." (People v. Black (2014) 58 Cal.4th 912, 916 (Black).) "[A] challenge for cause for a prospective juror's bias addresses '[t]he existence of a state of mind in the juror evincing enmity against, or bias towards, either party.' [Citation.] . . . [¶] . . . Although challenges for cause are constitutionally guaranteed, the right to peremptory challenges is statutory." (Ibid.) "[A]n erroneous denial of a challenge for cause to one juror is not reversible error when it deprives a defendant only of a peremptory challenge to another juror." (Id. at p. 917.) "A defendant must show that the error affected his right to a fair trial and impartial jury. When a defendant uses peremptory challenges to excuse prospective jurors who should have been removed for cause, a defendant's right to an impartial jury is affected only when he exhausts his peremptory challenges and an incompetent juror, meaning a juror who should have been removed for cause, sits on the jury that decides the case." (Id. at p. 920.)
"Assessing the qualifications of jurors challenged for cause is a matter falling within the broad discretion of the trial court." (People v. Weaver (2001) 26 Cal.4th 876, 910.) "A trial court should sustain a challenge for cause when a juror's views would 'prevent or substantially impair' the performance of the juror's duties in accordance with the court's instructions and the juror's oath. [Citations.] On appeal, we will uphold a trial court's ruling on a challenge for cause by either party 'if it is fairly supported by the record, accepting as binding the trial court's determination as to the prospective juror's true state of mind when the prospective juror has made statements that are conflicting or ambiguous.' " (People v. McDermott (2002) 28 Cal.4th 946, 981-982.) "When the trial court's assessment of a prospective juror's capacity to serve is based at least in part on the juror's tone, demeanor, or other elements that cannot be reflected in the written record, its ruling is owed deference by reviewing courts." (People v. Zaragoza (2016) 1 Cal.5th 21, 37.)
B. The Voir Dire Process
Here, each side had 10 peremptory challenges. During voir dire, Bell made for cause challenges to Mr. H., Mr. A., and Ms. L., but the court denied the challenges. Bell used peremptory challenges to excuse Ms. L. and Mr. A.
In the record, Mr. H. is referred to as Juror No. 12 and Juror No. 17.
Mr. H. was called into the jury box late in the voir dire process. During voir dire, Mr. H. stated his vehicle had been broken into twice in recent months, and, given the timing of the charges against Bell, Mr. H. wondered whether Bell could have been the same person who broke into his car. Mr. H. immediately added, "I realize, however, that that is unconnected to this case. I would try to disregard that."
The court asked Mr. H. if he suspected Bell was the person who broke into his car. Mr. H. responded he had "no reason to believe" there was a connection. The court asked, "Would the fact that you suffered this break-in, would that prevent you from being fair in this case?" Mr. H. responded, "I do not believe so." The court continued, "What that means is, that if you feel that the evidence isn't, maybe, sufficient in this case, you wouldn't allow this experience of yours to cause you to think well, I'll find him guilty anyway, even though the evidence isn't really that strong?" Mr. H. responded, "No, I would not do that."
Later, when questioned by Bell's trial counsel, Mr. H. stated he thought it was "uncanny" when he heard the charges, and it was "very close to home." Nonetheless, he added he would "try to set that aside." He stated it "would be dishonest for me to say that I didn't have thoughts about car burglaries[.]" He noted Bell was arrested the day after his own car was broken into, "[s]o it feels very close."
Bell's trial counsel asked, "Do you think that your own personal experience would come into your thought processes?" Mr. H. responded, "I think that I would try my best to set that aside and realize that these are separate events that are not necessarily related. But if I were Mr. Bell, I would prefer not to have somebody like myself who has experienced that story sitting on the jury." The court sought to clarify counsel's question: "The question to you was, while you're deliberating about this case, would you have your experiences in your mind? That's okay as long as you don't use them as evidence, and as long as they don't guide your judgment." Mr. H. told the court that he "would follow that instruction. I would not consider them in my judgment."
Bell's counsel asked Mr. H., "Well, it sounds like you acknowledge that you have some sort of bias?" Mr. H. responded, "Correct." Bell's counsel asked, "How can you [be] sure your bias won't play a role?" Mr. H. responded, "I can't." Bell's counsel asked, "Do you think that it would be best for you to be on a different type of case?" Mr. H. stated, "I do believe so." Bell's counsel asked Mr. H. if he presumed Bell to be innocent, to which Mr. H. responded that he did.
At the time Mr. H. was seated as a juror, Bell had one remaining peremptory challenge, but he used it to excuse another juror. When both sides had exhausted their peremptory challenges, the court asked the presently constituted jurors whether any of them felt there was a reason they should not be on the jury, or if they felt they could not be completely fair and impartial. No juror responded. After the selection of two alternate jurors, Bell requested "additional peremptory challenges for the denial of for cause challenges." The court denied the request. As a result, Mr. H. served on the jury that convicted Bell.
C. The Court Did Not Abuse Its Discretion
Bell argues the trial court erred in denying his for cause challenge to Mr. H. because Mr. H. "admitted that he was biased." Bell focuses on Mr. H.'s responses to his trial counsel's questions regarding bias, and Mr. H.'s statement that "if I were Mr. Bell, I would prefer not to have somebody like myself who has experienced that story sitting on the jury."
We conclude Mr. H.'s statements were conflicting or ambiguous because Mr. H. also indicated his recent experiences with car break-ins would not prevent him from being fair, he would not convict Bell without evidence, and he would not let his experiences with car break-ins guide his judgment. Mr. H. stated he presumed Bell to be innocent, and he did not respond when the court asked the prospective jurors if any of them felt they could not be completely fair and impartial. Based on Mr. H.'s conflicting or ambiguous statements, we defer to, and accept as binding, the court's assessment of Mr. H.'s capacity to serve as a juror. (People v. Winbush (2017) 2 Cal.5th 402, 429 [" '[I]f the juror's statements are equivocal or conflicting, the trial court's determination of the juror's state of mind is binding.' "].)
In arguing otherwise, Bell relies on People v. Harrison (1910) 13 Cal.App. 555, a case in which the juror "frankly admitted . . . he could not fairly and impartially try the cause." (Id. at p. 559.) Here, the facts are different. While Mr. H.'s responded "[c]orrect" to a question from Bell's counsel about whether he had "some sort of bias," Mr. H. also stated he could be fair, he would not let his experiences with car break-ins lead him to convict Mr. Bell without evidence, and he presumed Bell was innocent. Thus, Mr. H.'s statements were conflicting and ambiguous, and we defer to the court's assessment of his capacity to serve.
Next, Bell argues the court also erred in denying his for cause challenge to another prospective juror, Ms. L. But Ms. L. did not sit on Bell's jury because Bell used a peremptory challenge to excuse her. Bell argues that "[b]ecause of the trial court's improper denials of . . . [his] challenges for cause to Ms[.] L. and Mr. H., a biased juror - Mr. H. - sat on the jury." But "[w]hen a defendant uses peremptory challenges to excuse prospective jurors who should have been removed for cause, a defendant's right to an impartial jury is affected only when he exhausts his peremptory challenges and an incompetent juror, meaning a juror who should have been removed for cause, sits on the jury that decides the case." (Black, supra, 58 Cal.4th at p. 920.) As explained ante, the court did not abuse its discretion in determining Mr. H. was competent to serve on Bell's jury. Accordingly, Bell fails to establish the court's denial of his for cause challenge to Ms. L. affected his right to an impartial jury.
II.
The Court Erred by Assuming It Could Later Impose a Split Sentence
Bell contends the court should have split his sentence between a term in county jail and mandatory supervision under section 1170, subdivision (h)(5)(A). The Attorney General concedes the court erred in believing it could retain jurisdiction pending disposition of other charges against Bell in another case. But the Attorney General argues the error was harmless because the decision to deny a split sentence was "well within" the court's discretion. We are not persuaded the error was harmless.
A. Governing Law
" 'Under the [Criminal Justice] Realignment Act [of 2011], qualified persons convicted of nonserious and nonviolent felonies are sentenced to county jail instead of state prison. [Citation.]' " (People v. Camp (2015) 233 Cal.App.4th 461, 467 (Camp).) "Unless the court finds that, in the interests of justice, it is not appropriate in a particular case, the court, when imposing a sentence . . . , shall suspend execution of a concluding portion of the term for a period selected at the court's discretion." (Former § 1170, subd. (h)(5)(A).) "The portion of a defendant's sentenced term that is suspended . . . shall be known as mandatory supervision . . . ." (Former § 1170, subd. (h)(5)(B).)
A sentence divided between a term in county jail and a period of mandatory supervision is referred to as a split or hybrid sentence. (Camp, supra, 233 Cal.App.4th at p. 464, fn.1.) "Split sentences are the preferred disposition in eligible cases because they provide released prisoners with close supervision and supportive services designed to substantially reduce the risk of recidivism." (People v. Arce (2017) 11 Cal.App.5th 613, 616.) "Because section 1170(h)(5)(A) establishes a statutory presumption in favor of the imposition of a period of mandatory supervision in all applicable cases, denials of a period of mandatory supervision should be limited." (Cal. Rules of Court, rule 4.415(a).) "[W]hen a court denies a period of mandatory supervision in the interests of justice, the court must state the reasons for the denial on the record." (Id., rule 4.415(d).)
B. The Sentencing Hearings
Bell's case was originally set for sentencing on February 2, 2017, but the court postponed sentencing until February 7, 2017, "to consider the presentation made by the friends and family of the defendant[.]" At the second hearing, the court stated their presentation was "impressive," but the court could not ignore that Bell "was active in picking up arrests throughout the last year." The court stated a split sentence was not appropriate because Bell had "ten pending auto burglary charges pending preliminary hearing[.]"
The record contains no information regarding the current status of the other charges that were pending against Bell. The People state that "[t]o the best of our knowledge, those charges have still not been resolved."
The court noted "the presentation of the family caused me to imagine what if I did grant a split sentence in this case, [but] . . . it appeared to me that that would not be in the interests of justice, given the fact that there is this -- if I'm not mistaken, there's a potential of six years and eight months, given the ten pending charges that are pending preliminary hearing . . . . However, in order to give the defendant the benefit of whatever may happen in those ten pending cases, the Court retains jurisdiction to further exercise its discretion . . . to order a split sentence after the resolution of all of the pending auto burglary charges." The court stated "[t]he split sentence in this case . . . is denied based upon the defendant's unsatisfactory performance on parole and on probation. The Court finds that it is not appropriate under Rule 4.415 . . . ."
Bell's counsel questioned whether the court could retain jurisdiction over Bell's sentence beyond 120 days. The court stated section 1170, subdivision (h) "doesn't prohibit the Court from retaining jurisdiction when it feels that it is in the interests of justice . . . and . . . for the defendant's benefit . . . ." Bell's counsel initially objected to the court's attempt to retain jurisdiction, but withdrew the objection based on the court's statement it was trying to broaden its discretion or the discretion of the judge that might be sentencing Bell on his pending charges. The court retained "jurisdiction for itself and any other Superior Court judge to exercise whatever discretion may remain in this case under the provisions of [s]ection 1170, [s]ubdivision (h), regarding the split sentence. [¶] I'm doing that for the defendant's benefit. The reason I'm doing it is because - frankly, because his family showed up and indicated that they think that they can keep Mr. Bell from reoffending, and the Court is impressed with that. . . . [¶] So Mr. Bell, I suppose the situation is if things can turn out differently, you'll be supervised by your family. They might be tougher than a probation officer."
Section 1170, subdivision (d)(1) provides that "[w]hen a defendant . . . has been sentenced to . . . county jail pursuant to subdivision (h) and has been committed to the custody of . . . the county correctional administrator, the court may, within 120 days of the date of commitment on its own motion, . . . recall the sentence and commitment previously ordered and resentence the defendant . . . . "
C. The Court Erred When It Concluded It Could Retain Jurisdiction Over Bell's Sentence and the Error Was Not Harmless
In sentencing Bell to three years and three months for second degree burglary (count 1) and resisting a police officer (count 6), the court imposed a straight sentence, not a split one. (People v. Antolin (2017) 9 Cal.App.5th 1176, 1181.) After 120 days, the court has no jurisdiction or authority to modify a straight sentence. (Id. at p. 1182.) Thus, the court erred when it attempted to retain jurisdiction over Bell's sentence.
In addition, the court stayed execution of the two-year sentence imposed for the on-bail enhancement pursuant to section 12022.1, subdivision (d). But there is no dispute that the sentence of three years and three months imposed under section 1170, subdivision (h) was a straight one. --------
The Attorney General argues "any error was harmless. The court relied more heavily on appellant's poor performance on probation and parole, on the fact that he had violated his bail conditions, and because he was facing 10 separate charges for additional auto burglaries committed prior to the instant case. That the court erroneously believed it could extend jurisdiction for itself or another court pending resolution of appellant's additional numerous charges was more of a nod to the appearance of appellant's family in his support during sentencing . . . , and only a very minor factor - if any - in its decision not to split the sentences."
We are not persuaded. When a court errs during sentencing, remand for resentencing is required when it is "reasonably probable that a more favorable sentence would have been imposed in the absence of the error." (People v. Avalos (1984) 37 Cal.3d 216, 233.) Here, the court was impressed by the support Bell would receive from his family, but the court wanted to know how pending charges for auto burglaries against Bell in another case would be resolved before deciding whether to split Bell's sentence in this case. The court attempted to retain jurisdiction over Bell's sentence "for the defendant's benefit."
The court also stated it was denying "[t]he split sentence . . . based upon the defendant's unsatisfactory performance on parole and on probation." The Attorney General argues the court also focused on Bell's "history of recidivism." However, the record suggests the court's overriding concern was a desire to see what would happen regarding the other, pending auto burglary charges filed against Bell, and the court sought to retain jurisdiction "to further exercise its discretion . . . to order a split sentence after the resolution of all of the pending auto burglary charges." Based on this record, and especially given the statutory presumption in favor of a split sentence (Cal. Rules of Court, rule 4.415(a)), then it is reasonably probable the court would have split Bell's sentence if it realized it could not do so later.
We remand for the trial court to consider whether it should suspend execution of a concluding portion of Bell's sentence for a period selected at the court's discretion. (§ 1170, subd. (h)(5)(A).) Our opinion is limited to the conclusion that if the court realized it could not retain jurisdiction to impose a split sentence later, then it is reasonably probable the court would not have imposed a straight sentence of three years and three months in county jail. We offer no opinion on whether, armed with the knowledge that it cannot later split Bell's sentence, and after a balancing of the factors outlined in rule 4.415(b) of the California Rules of Court, or other factors specific to the case or to Bell, the court should impose a straight sentence or a split one. We also offer no opinion on the appropriate conditions or length of mandatory supervision, if any. (Cal. Rules of Court, rule 4.415(c).) Those are matters committed to the discretion of the trial court in the first instance. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391 [" 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court.' "].)
DISPOSITION
We remand to the trial court for resentencing consistent with the views expressed in this opinion. In all other respects, we affirm.
/s/_________
Jones, P.J. We concur: /s/_________
Simons, J. /s/_________
Needham, J.