Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCD178177, Frank A. Brown, Judge.
BENKE, J.
David C. Brown was found guilty of furnishing a controlled substance and possessing cocaine base for sale. It was found true he suffered a prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a), and a prior term of imprisonment within the meaning of Penal Code section 667.5, subdivision (b). Brown was sentenced to a prison term of six years. He appeals, arguing the trial court erred in denying his motions for mistrial and new trial, erred in allowing him to represent himself and committed sentencing error.
FACTS
On October 15, 2003, San Diego Police Officer William Martinez was engaged in a "buy-bust" operation with his narcotics team. At approximately 7:00 p.m. he encountered appellant. The two talked. Eventually, appellant asked Martinez what he was doing in the area. The officer told appellant he was going for $50 worth of drugs. Appellant asked if Martinez was looking for rock cocaine or marijuana. Martinez said rock cocaine, and appellant stated he could assist him in getting drugs.
Using Martinez's cell phone, appellant called friends and arranged for a delivery of the drugs. The two men went to a second location where they were contacted by a third man in a car. The officer gave appellant two $20 bills and one $10 bill, the serial numbers of which had been recorded. Appellant got into the car with the third man. After five minutes, appellant returned and gave Martinez a baggie containing 3.96 grams of rock cocaine. Appellant had a $10 bill in his hand. Martinez left the area and gave a signal to arrest appellant.
An officer followed appellant, eventually making contact with him. Appellant was with a man and woman. The woman was found in possession of the $10 bill Martinez gave appellant for the drug purchase.
The man who provided appellant the drugs furnished to Martinez was placed under arrest. In his car officers found the cell phone appellant called before the sale.
Appellant's defense theory was entrapment.
DISCUSSION
A. Motions for Mistrial and New Trial
Appellant argues the trial court erred and denied him due process when it first denied his motion for mistrial and later his motion for new trial. Both motions related to the jury's discovery of his in-custody status.
1. Background
Appellant represented himself at trial. The morning after the prosecution rested its case, a short hearing was held out of the hearing of the jury and unrelated to the present issue. Then, after the jury was seated, appellant made a motion for mistrial, stating: "[J]urors have seen me in handcuffs, being shackled, being taken in custody."
The trial court asked the jurors collectively if any of them saw appellant in custody. When there were no affirmative responses, the court told the jury appellant was in custody. The court asked if that fact would affect any juror's ability to be fair. The court noted the jurors responded in the negative. The court denied appellant's motion to dismiss and appellant presented his defense.
After he was convicted, appellant, still acting in propria persona, filed a motion for new trial, arguing the trial court abused its discretion in denying his motion for mistrial. Appellant argued he was prejudiced when jurors saw him in a courthouse hall in chains and when the trial court informed the jury that appellant was in custody. Appellant offered no declaration supporting his claim that jurors saw him in shackles. The trial court denied the motion.
2. Discussion
Appellant revealed his custody status to the jury in an artless motion for new trial based on his claim jurors saw him being shackled. The trial court inquired of the jury and determined that in fact no juror saw appellant in custody.
A jury's discovery of a defendant's custody status, from whatever source, is to be avoided. Still, as our Supreme Court stated in People v. Bradford (1997) 15 Cal.4th 1229, 1336: "[A]n isolated comment that a defendant is in custody simply does not create the potential for the impairment of the presumption of innocence that might arise were such information repeatedly conveyed to the jury." The court noted that juries often legitimately learn of a defendant's custody status and are, nonetheless, provided fair trials. (Ibid.)
The mention of appellant's custody status in this case was fleeting and occurred after appellant himself made a motion indicating the jury saw him in custody. The trial court could not address appellant's motion without inquiry of the jurors. It kept its mention at a minimum and in a brief but adequate fashion inquired if appellant's custody status would affect any juror's ability to be fair. When no juror stated that it would, the trial moved on. Appellant could not possibly have been prejudiced by the brief revelation he was in custody. (See People v. Bradford, supra, 15 Cal.4th at p. 1336.)
The trial court acted properly in denying appellant's motions for mistrial and new trial.
B. Self-Representation
Asserting his federal constitutional right to do so, appellant waived his right to counsel and represented himself at trial. Appellant now argues the United States Supreme Court's opinion in Faretta v. California (1975) 422 U.S. 806, 818 [95 S.Ct. 2525], was poorly reasoned and should be overturned. Appellant recognizes this court has no power to do so and states he merely makes the contention to preserve it for consideration in the federal system. Based on the authority of Faretta, the trial court acted properly in allowing appellant to waive his right to counsel and represent himself.
C. Prior Prison Term Enhancement
The jury found true the allegation appellant served a prior term of imprisonment within the meaning of section 667.5, subdivision (b). The trial court imposed but stayed the one-year term required by that finding. The parties agree this was error and resulted in an unauthorized sentence because while the enhancement can be stricken, it cannot lawfully be stayed. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) They differ, however, on the remedy. Appellant argues it is clear the trial court did not intend to impose the prior prison term enhancement, that it concluded, and gave multiple reasons for so concluding, that a proper sentence was six years, i.e., the lower term on count one, doubled because of appellant's strike prior and unenhanced by the prison prior finding. The Attorney General argues the matter should be remanded for the trial court to clearly impose or strike the enhancement.
At sentencing, the trial court indicated its intent that appellant's term not include time based on the prior prison term finding. The trial court first stated it would strike the section 667.5, subdivision (b), finding. It asked the prosecutor if she agreed that the court had the power to do so. The prosecutor's response was equivocal. The court then asked if it could stay the enhancement. The prosecutor did not respond. In rendering its judgment, the trial court stayed the enhancement.
The trial court must provide a rationale for using its discretion to strike a mandatory prison prior. (People v. Jordan (2003) 108 Cal.App.4th 349, 368.) Here, the trial court listed a number of reasons for mitigating appellant's term. However, the trial court erred in concluding with regard to the enhancement that it was proper to stay rather than strike it. Since the trial court's intention is clear and since it stated multiple reasons for imposing a term of six years, it would be a pointless and a wasteful exercise to remand this case for resentencing. The abstract of judgment is ordered modified by deletion of any reference to the section 667.5, subdivision (b), finding. (See People v. Coelho (2001) 89 Cal.App.4th 861, 889-890.)
DISPOSITION
The abstract of judgment is ordered modified by deletion of any reference to the section 667.5, subdivision (b), finding. In all other respects the judgment is affirmed.
WE CONCUR: McCONNELL, P. J., IRION, J.