Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA329302. Craig E. Veals, Judge.
Linda L. Gordon, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, James William Bilderback II and Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Defendant Robert Carrillo appeals the judgment entered following a jury trial in which he was convicted of assault with a firearm. Although we find no prejudicial error in the conduct of the trial, we conclude that, contrary to the trial court's belief that it was required to sentence defendant to prison, it in fact had discretion to grant probation. Consequently, we reverse the judgment and remand for resentencing.
By information, the Los Angeles County District Attorney charged defendant with one count each of first-degree residential robbery (Pen. Code, § 211), first-degree burglary (§ 459), and assault with a firearm (§ 245, subd. (a)(2)). Special allegations regarding personal use of a firearm were alleged as to each count.
All statutory references are to the Penal Code unless otherwise indicated.
A jury convicted defendant of assault with a firearm, and found the accompanying special allegation to be true. The jury acquitted defendant of the remaining charges.
The court sentenced defendant to a total prison term of five years, consisting of the low term of two years for the substantive offense, and the low term of three years for the firearm-use special allegation.
Defendant timely appealed from the judgment of conviction.
FACTUAL BACKGROUND
The events leading to defendant's arrest took place at the home of Elsy, or Lyzza, Turcios, who was the good friend of defendant's former girlfriend, Daria Diaz. On the morning of August 3, 2007, defendant entered Turcios's townhouse, accompanied by Diaz's two young children. Turcios was sleeping at the time, approximately 9:00 a.m. As Turcios testified at trial, she was awakened by defendant, who was standing in the hallway at the top of the stairs, about 10 feet from her bedroom door, when he called out to her to wake her up. She was shocked to see him and didn't know how he could have gotten in. Defendant asked Turcios where Diaz was. Turcios responded, "I don’t know." As she spoke to defendant, she heard Diaz's children running around outside her room.
Turcios got out of bed and grabbed her cell phone and some cash from her purse. She called Diaz and told her that defendant was at the house with her children. Turcios gave the phone to defendant, who spoke briefly with Diaz.
After he hung up the phone, defendant walked downstairs; Turcios followed him. Defendant was upset, and asked Turcios "Who else is [Diaz] messing with?" At the bottom of the staircase, defendant reached into a red bag he had left there and took out a handgun. He grabbed Turcios by the hair and held the gun to her head. Defendant told her, "that's what [you] get for getting involved." At that point, one of Diaz's sons came downstairs yelling, "Robert has a gun. Robert has a gun." Defendant took Turcios's cell phone and money from her hand, pushed her toward a television, and ran out the door. Turcios fell to the ground and sustained bruises on her arm. She followed defendant outside, and watched him get in his car and drive away. She used a neighbor's cell phone to call 911.
Sometime after the incident, defendant called Diaz to explain what had happened. He also wrote to Diaz, again explaining his actions. In his letter, defendant said that he did not "mean for it to go down the way it did." He said that he took the "toy," which the People argued was a reference to the gun, in a red bag, and that "As soon as [Turcios] saw it, she started calling for the kids and Joey came down.... It was not[] – []it was not full (empty)."
On September 20, 2007, LAPD Officer Mireles was driving to defendant's residence with a search warrant when he saw defendant's green Acura parked at the corner of 24th and Vermont. Officer Mireles and his partner waited to see if anyone returned to the car. When defendant and another man, Francisco Galvez, approached the Acura, the officers detained them. They then accompanied Galvez to his apartment about 40 yards away, where they found a fully loaded Blue Steel.357 revolver with brown wooden grips. There were no recoverable fingerprints on the gun. When shown a photograph of this gun, Turcios stated "that looks like the gun" defendant used in the assault.
The officers then took defendant to his residence, where they executed the search warrant. The officers recovered ammunition in various calibers. Different brands of ammunition were found at defendant's residence. Two of the brands of ammunition – the P.M.C..357 and the super magnum – were the same as the two brands of ammunition in the gun recovered from Galvez's apartment. The officers also found a Helio cell phone, which was the same brand and model of phone which had been stolen from Turcios. The phone was never turned on, and because Turcios testified that it had no distinguishing characteristics, it was not conclusively established that the phone was Turcios's.
DISCUSSION
Defendant makes four assignments of error on appeal, contending that the trial court erred by: (1) failing to postpone opening statements to give defense counsel an opportunity to view the letter defendant sent to Diaz, which evidence had been produced on the morning of the first day of trial; (2) ruling that Turcios could not be questioned concerning the conduct underlying a misdemeanor juvenile adjudication; (3) admitting the evidence of the gun found at Galvez's apartment and the ammunition recovered at defendant's residence; and (4) denying probation and imposing a prison term based on its mistaken belief that a true finding on the gun enhancement precluded the court from granting probation. We consider each contention in turn.
1. Denial of continuance
Defendant contends that the trial court abused its discretion in refusing to delay opening statements to give defense counsel the opportunity to examine the newly discovered evidence of defendant's letter to Diaz. We find no error.
Just before opening statements, the prosecutor informed defense counsel that Diaz's testimony would include admissions defendant made to her in a telephone call and in a letter he wrote to her. Defense counsel requested a continuance so that she could review the letter before making her opening statement. The court suggested that counsel defer her opening statement until the end of the People's case-in-chief, as the trial was ready to commence. When counsel rejected this suggestion, the court inquired how seeing defendant's admissions in the letter would affect her opening statement. Counsel did not directly respond to this inquiry, but questioned the authenticity of the letter and expressed concern for how she would handle this evidence in defending the case. She repeated her request to delay the proceedings, and reiterated that she needed to see the letter "so that I can work it into my defense." The court assured counsel that if any extraordinary issue arose once Diaz produced the letter, the court would give counsel the time and opportunity to address it. The court then denied the motion to continue the trial.
Apparently Diaz did not mention the letter to the prosecutor before she appeared to testify on the first day of trial.
Defendant maintains that the trial court's refusal to delay the proceedings until his counsel had the opportunity to review the evidence in question is governed by section 1044, which authorizes the judge to control the proceedings, while the People argue that section 1050, governing continuances, is the operative statute. The parties agree, however, that the trial court's decision is to be reviewed for an abuse of discretion. "Discretion is abused only when the court exceeds the bounds of reason, all circumstances being considered." (People v. Froehlig (1991) 1 Cal.App.4th 260, 265.)
Here, there was no abuse of discretion. Defense counsel's stated reason for the requested delay was to review the letter so that she could reassess the defense that she would present, and decide whether or not she wished to mention the letter in her opening statement. However, not only did the People represent the contents of the letter, but the defendant, her client, wrote the letter, and presumably could tell her what it said. We simply fail to see what purpose would have been served by delaying opening statements so that defense counsel could review the actual letter, and indeed, defendant does not tell us how his counsel's opening statement would have been different had the continuance been granted, much less how the outcome of the trial would have changed. Thus, any error would be harmless under any standard. (Chapman v. California (1967) 386 U.S. 18, 24; People v. Watson (1956) 46 Cal.2d 818, 836.)
The contents of the letter, introduced into evidence when Diaz read it during her testimony, stated: "I have to clear this out. Toodles, it shouldn't have gone this far, but I was taking the toy to you empty. There's a red bag at Lyzza's that was hanging on your door that I used to put the bag in. The boys never saw it. Lyzza talked to you on the phone and then she told me to leave the boys there and in a sarcastic way told me to get the fuck out. I told the kids to take their two dollars for a snack because that's all I had and told them to stay upstairs while I talked to Lyzza. My whole intentions was to leave it with you because of the shit that I do or the possibilities of something stupid. As soon as Lyzza saw it, she started calling for the kids and Joey came down. I am sorry. I put it away quickly and left. Lyzza kept putting me or trying to put herself behind me and your son in front of the toy. It was not full (empty). I would never in mind try to hurt your boys or my daughter...." The contents of the letter were consistent with the telephone conversation Diaz and defendant had about the gun.
2. Exclusion of impeachment evidence
Defendant sought to impeach Elsy Turcios, the prosecution's principal witness, with a felony juvenile adjudication for receiving stolen property, a misdemeanor juvenile adjudication for theft, a drunk driving charge "in warrant status," and an infraction for failure to appear. The court permitted counsel to impeach Turcios with the prior felony adjudication for receiving stolen property, but ruled that the theft adjudication was inadmissible unless the underlying facts of the offense were testified to by a third person. The court also determined that the drunk driving charge and failure to appear infractions were inadmissible because they did not involve crimes of moral turpitude. Defendant challenges these rulings, arguing that the court abused its discretion in disallowing the evidence.
Defendant cites no authority which would permit the use of an infraction or a pending charge "in warrant status" for impeachment purposes, and we conclude that the trial court properly precluded defendant from impeaching Turcios with this evidence. With respect to the misdemeanor theft adjudication, the People agree that the trial court mistakenly believed that Turcios could not testify to her own prior misconduct underlying that offense. (See, e.g., People v. Lopez (2005) 129 Cal.App.4th 1508, 1522, fn. 8 [if a witness denies prior misdemeanor conduct involving moral turpitude, "Evidence Code section 452.5 creates an exception to this hearsay rule and allows conduct to be proved by official records of misdemeanor convictions"].) The People argue, however, that any error in excluding the proffered evidence was harmless, because defendant was permitted to impeach Turcios with a prior conviction for receiving stolen property. We agree with the People that any additional impeachment with conduct underlying a misdemeanor offense would have had minimal, if any, effect on Turcios's already damaged credibility. Clearly, the jury did not accept all aspects of Turcios's testimony, since defendant was acquitted of the robbery charge. There is simply no reasonable basis to argue that he would have been acquitted of assault with a firearm, or that the gun use allegation would have been found to be not true, had the jury learned that Turcios had suffered a misdemeanor adjudication for theft. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.)
3. Admission of gun found at Galvez's apartment and ammunition recovered from defendant's home
Defendant contends that the trial court erred in admitting evidence of a gun found at Galvez's apartment and ammunition found at his residence. He maintains that the People asked the jury to infer that defendant used the gun recovered at Galvez's residence to assault Turcios. However, because "[t]he gun was unconnected to the crime and served to bolster Turcios' testimony only through speculative inferences..., the evidence was irrelevant and inadmissible."
The prosecution did not need to introduce the actual gun used by defendant in order to prove that he used a gun to assault Turcios. Turcios's testimony was corroborated by Diaz, who testified to a telephone conversation she had with defendant in which he explained that he took the gun to Turcios's home to give it to Diaz, as well as defendant's written admission, contained in his letter to Diaz, that he went to Turcios's apartment with a "toy" that was "not full (empty)," a barely veiled reference to a handgun. Thus, defendant suffered no prejudice from the introduction of the gun and ammunition. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.)
4. Sentencing error
Finally, defendant seeks a remand for a new sentencing hearing, contending that the trial court improperly denied him probation based on its mistaken understanding that he was ineligible for probation due to the true finding on the gun enhancement. The People counter that "there is no indication that the trial court misunderstood the scope of its discretion."
The jury found defendant guilty of assault with a firearm in violation of section 245, subdivision (a)(2), and found true the special allegation of personal use of a firearm within the meaning of section 12022.5, subdivision (a). The court sentenced defendant to the low term of two years on the substantive offense plus the low term of three years on the gun use enhancement, for a total term of five years.
In addition to providing an additional and consecutive term of imprisonment, the true finding under section 12022.5 presumptively rendered defendant ineligible for probation pursuant to section 1203, subdivision (e)(2). The presumption is, however, rebuttable "in unusual cases where the interests of justice would best be served if the person is granted probation." (§ 1203, subd. (e).)
At sentencing, defendant's counsel urged the court to grant probation, arguing that defendant fell "squarely within the factors [of California Rules of Court, rule] 4.414(b)." Counsel noted that defendant had no criminal history except for a single infraction, was a college graduate, and had strong ties to the community. He had been employed and owned a home until he was taken into custody in this case. Counsel added that defendant was remorseful, and that incarceration would dramatically affect his relationship with his young daughter.
The court responded, "[A]m I not mandated to sentence him to state prison on the gun allegation which was found true?" Defendant's counsel stated that she could find no authority for such a mandate. The prosecutor apparently agreed that the trial court had the option of granting probation if it determined that probation would be in the interest of justice: "I think only if the court somehow makes an interest-of-justice finding to deviate from a no probationary term for the firearm." The People argued that a prison term was the appropriate sentence in this case, due in part to defendant's "issue with guns" as demonstrated by his arrest record summarized in the probation report.
When counsel reiterated that defendant was eligible for probation notwithstanding the gun use enhancement, the court responded: "No, no, that specifically bars him from probation. He has to be sentenced to state prison. I don't have any choice here. Do the People agree?" The prosecutor stated: "I do agree." Thus, although he had moments earlier stated that the court was empowered to make "an interest-of-justice finding" and grant probation, the prosecutor abandoned that opinion and agreed with the court that it had no such ability.
On appeal, the People do not argue that the trial court could not grant probation, but that "there is no indication that the trial court misunderstood the scope of its discretion." This position is untenable, as the trial court clearly did not believe that it was authorized to grant probation: "I don't have any choice here."
In People v. Aubrey (1998) 65 Cal.App.4th 279, the defendant Aubrey pleaded guilty to first degree burglary and admitted a prior conviction for attempted robbery. After striking the prior serious felony conviction for purposes of the Three Strikes Law, the trial court denied Aubrey's request that he be placed on probation, stating: "'The Court is of the opinion that upon conviction of a new felony [] the mandatory provisions of [section 667, subdivision (a)] attach and require the five year sentence.'" (Id. at p. 282.) The court sentenced Aubrey to the low term of two years plus five years for the prior serious felony allegation. Aubrey appealed, contending that contrary to the trial court's declared lack of discretion in imposing a prison term, the court had discretion to consider Aubrey's request for probation. The Court of Appeal agreed, and remanded the case for resentencing.
"The grant or denial of probation is within the trial court's discretion and the defendant bears a heavy burden when attempting to show an abuse of that discretion. (People v. Marquez (1983) 143 Cal.App.3d 797, 803.) 'However, an erroneous understanding by the trial court of its discretionary power is not a true exercise of discretion.' (Ibid.)" (People v. Aubrey, supra, 65 Cal.App.4th at p. 282.)
"'"[P]robation" means the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer.' (§ 1203, subd. (a).) All defendants are eligible for probation, in the discretion of the sentencing court (People v. Phillips (1977) 76 Cal.App.3d 207, 213), unless a statute provides otherwise. Some statutes provide ineligibility is mandatory, while others provide a defendant is ineligible except in unusual cases where the interests of justice would best be served. (E.g., compare § 1203, subd. (k) with § 1203, subd. (e).) Section 462, subdivision (a) contains a discretionary prohibition against probation for defendants who are convicted of residential burglary: 'Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to any person who is convicted of a burglary of an inhabited dwelling house....'" (People v. Aubrey, supra, 65 Cal.App.4th at p. 282.) The Aubrey court concluded that "Since Aubrey pleaded guilty to residential burglary, the sentencing court had discretion to grant probation, if it found this to be an unusual case, unless another statute precluded probation." (Ibid.) The court rejected the Attorney General's argument that because the prior serious felony enhancement carried a mandatory prison term, the court had no authority to grant probation.
We note that respondent does not make the analogous argument in this case.
The statute which rendered defendant presumptively ineligible for probation in this case contains precisely the same language as that applicable to Aubrey: "Except in unusual cases where the interests of justice would best be served if the person is granted probation, probation shall not be granted to" the designated category of persons. (§ 1203, subd. (e); § 462.) Thus, the People's attempt to distinguish Aubrey is, at best, confused.
In sum, as Aubrey instructs, the trial court had discretion to grant probation pursuant to section 1203, subdivision (e), if it found this to be an unusual case. However, the court did not consider whether this was an unusual case because it believed that it had no choice but to impose a prison term as a result of the true finding on the gun use allegation. Because "'[d]efendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court,'" (People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1247, quoting People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8), the matter must be remanded for resentencing.
Defendant argues that the trial court improperly considered his arrest record in imposing sentence. Because we remand this matter for resentencing, we have no need to address this argument. We note, however, that the probation report's summary of defendant's history of arrests does not support the conclusion, argued by the People, that defendant "clearly appears to have some issues with guns." Defendant was twice arrested in 2006, first for carrying a loaded firearm and then for discharging a firearm in public. According to the probation report, the District Attorney chose not to prosecute due to insufficient evidence. These arrests are, consequently, irrelevant to any issue before the court. (See, e.g., People v. Peterson (1973) 9 Cal.3d 717, 727 ["Conceding that a judge may consider other criminal conduct even if uncharged,... there must be some substantial basis for believing that such information is reliable"].) Defendant was also arrested as a juvenile, in 1993, for carrying a loaded firearm in a public place. However, as the only explanation of this arrest is "disposition unknown," it too provides no relevant evidence.
DISPOSITION
The matter is reversed and remanded to the trial court for resentencing in accordance with this opinion. In all other respects, the judgment is affirmed.
We concur: MOSK, J., KRIEGLER, J.