Opinion
C080072
07-28-2017
THE PEOPLE, Plaintiff and Respondent, v. BENNIE RAY DITTO, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F04400)
After a police officer attempted to pull over a pickup truck, a high-speed chase ensued. After the pickup crashed, officers found it empty. DNA on a baseball cap inside the pickup matched that of defendant Bennie Ray Ditto. An amended information charged defendant with assault with a deadly weapon on a peace officer, evading a peace officer, unlawfully driving a vehicle without consent, and receipt of stolen property. (Pen. Code, § 245, subd. (c); Veh. Code, §§ 2800.2, subd. (a), 10851, subd. (a); Pen. Code, § 496d, subd. (a).) A jury found defendant guilty on all counts. Sentenced to 21 years, four months plus 25 years to life, defendant appeals, arguing counsel performed ineffectively, the court erred in denying his motion for a new trial, and sentencing error. We shall affirm the judgment.
All further statutory references are to the Penal Code unless otherwise designated.
FACTUAL AND PROCEDURAL BACKGROUND
An amended information charged defendant with assault with a deadly weapon on a police officer (count one), evading a peace officer (count two), unlawfully driving a vehicle without consent (count three), and receipt of stolen property (count four). The amended information also alleged defendant suffered three prior convictions for violating Vehicle Code section 10851, subdivision (a), and nine prior strike convictions for assault with a deadly weapon on a police officer, first degree burglary, robbery, carjacking, and making criminal threats. (§§ 666.5, subd. (a), 667, subds. (a) & (e)(2), 1170.12, subd. (c)(2).) Finally, the amended information alleged defendant had served four prior prison terms for evading a peace officer, stalking, and vehicle theft. (§ 667.5, subd. (b).)
The following evidence was introduced at trial.
The Chase
Quite early one morning in March 2014, Officer Stephen Sanguinetti caught sight of a white Chevrolet pickup traveling at high speed. Sanguinetti followed the pickup which accelerated and began weaving. The officer thought the driver might be impaired. Sanguinetti saw only one person in the pickup and saw the license plate which read "CAITERS."
Sanguinetti activated his vehicle's lights and siren. The pickup sped up and turned into a residential area. Suddenly the pickup stopped and Sanguinetti pulled up behind the truck. The pickup accelerated in reverse, smashing into the patrol car. The officer relayed a description of the driver, a white male, 30's, medium build with short, almost shaved, hair. The damage from the crash prevented the officer from pursuing the pickup.
Officer Gary Dahl followed the pickup after the crash, activated his lights and siren, and pursued the vehicle. The pickup sped through red lights. Dahl's vehicle hit a spike strip intended for the pickup and he was forced to pull over.
Officers Kyle McGill and John Wagner spotted the pickup and continued the pursuit. The pickup turned into the parking lot of a CarMax, driving over a metal barrier. The patrol car was unable to clear the barrier, so McGill parked and ran about 200 yards to the pickup. The pickup had crashed into another car; the engine was running but the vehicle was empty. The driver's side door was open and there was smoke and steam coming out of the vehicle. Neither officer saw anyone running from the vehicle.
The Pickup
The Chevrolet pickup was owned by Caitlyn Cowles. The evening of the incident, Cowles left the pickup in her driveway; when she returned early the next morning it was gone. She notified the police, who came to her house. Cowles's brother drove her to the CarMax to identify the pickup. Inside Cowles found a black baseball hat she had never seen before. The hat was on the floorboard of the driver's side. The wires under the dashboard were hanging down. Inside were also a pair of wire strippers and a flashlight which Cowles did not recognize.
Officers dusted the pickup for fingerprints, which revealed only Cowles's fingerprint. The pickup's steering wheel was swabbed for DNA at the scene and the black baseball hat was submitted to the Sacramento crime laboratory.
In June 2014 Detective Brian Bell was informed that DNA from the baseball hat matched that of defendant. Bell told Sanguinetti about the match and asked if he could identify defendant in a photo lineup. He did not ask Sanguinetti to go to defendant's residence.
Keri Lucchesi
Defendant lived with Keri Lucchesi, her daughter, and defendant and Lucchesi's 14-month-old son. When he was not at Lucchesi's house, defendant stayed with a woman named Nicole Cunion. Sanguinetti, who was not assigned to the case, went to the residence in search of defendant. Lucchesi's brother Victor and his wife, Sarah were watching Lucchesi's son. Lucchesi's daughter was also present. Sanguinetti knocked on the door and told them why he was there. They told the officer they did not know where defendant was, but that he might be down south. They told Sanguinetti he could look inside the house. Sanguinetti did so, but did not find defendant. He left his business card and asked to be notified if defendant showed up. Sanguinetti later learned defendant was in custody at that time.
Lucchesi stated defendant lived with her off and on from January through May 2014. He never told her about the incident. However, after the chase, Lucchesi overheard defendant talking to a neighbor. She asked defendant if he was involved in the high-speed chase. Defendant brushed her off. The day defendant was arrested was the first time Lucchesi had ever heard defendant's name in connection with the chase.
Subsequently, defendant was detained and a DNA swab performed. The sample was sealed and submitted to the crime lab along with the swabs from the truck. The DNA from the swabs of the steering wheel and the cuttings from the baseball hat were consistent with defendant's DNA.
Approximately a week later, Detective Bell interviewed Lucchesi. She stated she had overheard defendant and a neighbor talking about a high-speed chase through the gate near the apartment complex. The suspect rammed a police car and got away. Lucchesi told Bell defendant's remarks made her suspect he might be involved; he talked about things he probably would not have known. At trial, Lucchesi testified she had lied to police. The information she said she learned from defendant she had actually found on the internet. Lucchesi manipulated the information to create allegations against defendant to scare him into returning to Sacramento.
Interview with Defendant
Bell also interviewed defendant following his arrest. Defendant admitted the black baseball cap found in the pickup truck was his. According to defendant, he lost the cap the previous January or February.
Bell saw text messages from Lucchesi to defendant, which conflicted with the statements she made during her interview. Bell called Lucchesi about the text messages and she told him Sanguinetti had come to her house.
Cell Phone Evidence
Kenneth LeCesne, a custodian of records for Metro PCS Cellular, was asked to provide call records for a number linked to defendant. The phone number was assigned to a customer who identified himself as "Chevy Man." The address given for the phone number was that of defendant's sister. The account was opened on March 22, 2014, and closed on March 27, 2014, the day of the incident.
Defendant had several tattoos including a 1960's Chevrolet Nova, a Chevrolet El Camino, a Chevrolet pickup truck, and the Chevrolet emblem, all on his back. --------
The cell phone records indicated a cell phone used by defendant placed a call at 12:37 a.m. on March 27, 2014, and pinged off a tower near Cowles's residence. A series of calls followed from approximately 7:00 a.m. through 9:00 a.m., which pinged off a tower near CarMax. Many of the calls were to Lucchesi.
The morning after the high-speed chase, defendant texted Lucchesi, "I'm in trouble, come pick me up." Several calls followed between Chevy Man and Lucchesi.
After defendant relocated to Southern California, Lucchesi sent him texts to force his return. On June 6, 2014, Lucchesi texted: "If you don't get here and turn yourself in to rehab and leave that nasty ass bitch behind, I'm going to call your parole officer and let him know about the high-speed chases you were involved in. How dare you hook up with another bitch and leave us high and dry. You need to get your life together and start Monday or else I'll start it for you. What the fuck do we have to lose? Ben needs his dad clean." Defendant did not respond.
The following day, Lucchesi texted: "You know, I've been giving this whole situation some thought. Why would I want to threaten you to come back to Sacramento and turn yourself in to rehab when you're comfortable with Lori, and the last thing I want to do is force you to come back home if that really isn't what you want. I ask myself, is that fair, would I want to leave someone behind that I started to really like or get close to? Why don't you call [your parole officer] on Monday and see."
Two days later, Lucchesi sent a text stating: "So you want to be cold-blooded and ignore me. Okay, you got it. This way I'm not going to feel so bad. You can ignore us in prison too. I'm calling your agent bright and early tomorrow morning." On June 9, 2014, Lucchesi sent a text message through Deb Munger: "Oh, okay. Let him know that I'm calling his parole officer tomorrow if he doesn't turn himself in to rehab either in Riverside or Sacramento. I'm not giving it a thought anymore with all the high-speed chases he's been involved in here in Sac . . . all the hit-and-runs, running into a patrol car intentionally. I'm sure he'll get clean then, right? I don't care about him and his freedom, just like he doesn't care about Reyna's surgery and Little Ben's Shriners appointment. I'm waiting up until tomorrow to call. Call me a rat, call me a snitch, one thing I am now is a mom. I'm protecting myself and my family. I know you probably don't agree, Deb, but this is my choice. All I ask for is some communication. You can't take three minutes to respond to any of my texts, fuck him too."
Defendant called Lucchesi several times. Defendant texted Lucchesi: "This is Bennie, text me. And if you really care, you wouldn't threaten me."
Defense
Defendant argued officers planted evidence to frame him because of the assault on Officer Sanguinetti.
Lieutenant Olivera and Sergeant Eric Walker met with Sanguinetti to question him about his solo visit to Lucchesi's apartment and to advise him against further contact. The visit raised an officer safety issue.
Victor and his wife, Sarah were watching Lucchesi's son at her apartment when the encounter took place. Officer Sanguinetti pounded on the door and Victor opened it. Sanguinetti told Victor to state his name and asked if he was on probation. Sanguinetti told Victor he was there to "kick [defendant's] ass" and said defendant almost killed him. He said he was going to take off his belt and his badge and fight defendant one-on-one.
Sanguinetti went upstairs, saying "I'm coming upstairs. I'm coming to kick your ass if you are in there." Sarah and the children were upstairs. Sanguinetti told Sarah to put her hands up and asked if defendant was there. He again said he was going to "kick [defendant's] fucking ass." Sanguinetti seemed very angry.
Sanguinetti went downstairs and left his business card. He told Victor to call him if defendant returned and said he would be watching the apartment.
Jose Manzo, who lives next door to Cowles, testified that the Chevrolet pickup was very noisy. It was so noisy that it would wake him up when it started. When Manzo came home the evening of the theft around 10:15 p.m. the pickup was gone. Manzo never heard it again that night.
Verdicts
The jury found defendant guilty on all counts. The court found the prior conviction and prior prison term allegations true.
Motion for a New Trial
Following the verdicts, defendant brought a motion for a new trial alleging juror misconduct. On April 13, 2015, he filed an amended motion alleging he received ineffective assistance of counsel. Defendant argued trial counsel failed to introduce important evidence, failed to prepare his defense, and did not conduct a proper investigation.
Evidentiary Hearing on Motion
At the hearing on the motion defense counsel called several witnesses.
The apartment manager where Cunion lived testified. The night of the incident, the manager heard police vehicles going by. He went outside and saw defendant working on his Chevrolet truck. He did not think it was as late as 2:30 a.m. He did not see a vehicle being pursued.
James McCoy, an investigator from the Public Defender's Office contacted the manager prior to trial. The manager stated defendant had been staying with Cunion, but he could not recall the exact dates. The manager did not mention the police cars. In a later interview with another investigator, the manager remembered seeing defendant the night the police cars went by. He could not provide a specific date. The manager knew defendant was innocent because he knew where defendant was on March 27.
Lucchesi's brother David testified he was living at his grandmother's house on the night of March 26, 2014. He heard a truck pull up in front of the house after midnight, possibly around 12:30 or 12:45 a.m. on March 27. When he opened the door, David saw defendant talking to someone in a white truck. Defendant was friends with David's father.
David went back into the house and after the truck left defendant came into the house. He asked David if he knew a person named Mike and David said he did not. Defendant stayed at the house that night and slept in the same room as David. David saw defendant when he woke up in the morning. Defendant's blue pickup was in the driveway. In December 2014 a defense investigator contacted David and he told him about the incident.
Defendant testified and stated that on the evening of March 26, 2014, he was at Cunion's apartment. Around 12:30 a.m. defendant drove his truck to Lucchesi's grandmother's house, planning to meet Lucchesi at around 2:00 a.m. While defendant sat in his truck waiting for Lucchesi, a white pickup drove up to the house. The driver asked for Lucchesi's father, and defendant said he was not there. The man said he was Mike, but did not say how he knew Lucchesi's father. Defendant thought he looked familiar. He was shorter than defendant, but had the same color hair and was balding.
Mike looked under the white truck and tried to pull out a piece of wire fencing that was caught wrapped around the axle. Mike asked defendant to hand him some wire cutters from the truck's front seat. After defendant handed Mike the cutters, he told Mike they were not the right cutters and gave Mike some wire cutters from his truck.
Defendant was wearing his baseball hat. He took it off and set it on the floorboard of the white pickup as he helped Mike. He did not want to dirty his hat. Mike asked defendant to turn the steering wheel to help him dislodge the wire. In response, defendant turned the steering wheel with both hands. Mike dislodged the wire from underneath the tire. Mike was wearing gloves and defendant forgot his hat.
Initially, defendant did not think the truck was stolen because he saw keys in the ignition. When Mike tried to leave, the truck would not start. Defendant used his wire cutters and pliers and helped Mike start the truck. Mike then told defendant the truck was stolen, thanked him, and drove away with defendant's wire cutters and pliers.
Defendant went into the house. David asked him who the man in the white truck was. Defendant said his name was Mike. Defendant drove back to Cunion's around 1:30 a.m. His truck began giving him trouble, so he used a screwdriver and looked under the hood for sparks. Defendant saw the apartment manager, who told defendant he had seen a police pursuit. Cunion's lights were out, so defendant drove back to Lucchesi's grandmother's house, where he spent the night.
Defendant told defense counsel, David Lynch, about the events the night the white truck was stolen, which explained why his DNA would be on the steering wheel and baseball hat. Although defendant asked defense counsel to call witnesses, counsel instead put on a defense focused on the DNA being planted. Defendant wanted to testify at trial, but defense counsel advised against it. Defense counsel did not discuss the cell phone evidence with defendant.
The cell phone assigned to Chevy Man belonged to defendant and he used it the night of the incident. When the police interviewed him, defendant lied about the white truck out of fear.
At trial, defendant went along with the DNA evidence. However, from the beginning of the trial, defendant urged defense counsel to subpoena David and the apartment manager to testify. Defendant told defense counsel he was dissatisfied with the trial strategy.
Defense counsel testified he performed as defense counsel in felony criminal trials for 16 years. When defense counsel met with defendant, defendant said he did not know how his DNA got on the steering wheel. Defendant came up with the points he wanted to raise showing the DNA had been planted. He insisted defense counsel pursue the defense that he was framed with the DNA swabs. In a later meeting, defendant told defense counsel about being in the truck outside Lucchesi's grandmother's house. This version changed over time.
Defense counsel conducted discovery on the DNA. In December 2014 defense counsel learned of a possible alibi and investigated both the apartment manager and David. He interviewed both. David said defendant came in one night and asked David if he knew someone named Mike. After defendant insisted, defense counsel interviewed David again, but his testimony didn't change. The apartment manager stated defendant stayed with Cunion in March 2014, but he did not know the exact dates. Defense counsel thought it would be a mistake to call the apartment manager as a witness.
Defense counsel explained his trial strategy to defendant and how the facts would be used. He discussed the pros and cons of defendant's testifying, but did not pressure him. The defense that defendant was in the truck would have been inconsistent with the DNA defense presented at trial.
A defense investigator testified he interviewed David twice. During the first interview, David said one night he was asleep and he heard tires screeching outside. Defendant came in and asked David if he knew a man named Mike. David added no new information in the second interview. The investigator interviewed the apartment manager who stated he remembered defendant staying with Cunion, but did not recall the police chase.
The trial court denied the motion. The court found defendant's alibi defense "wholly unbelievable." The two witnesses, David and the apartment manager, were unable to sufficiently recall the events. Immediately after his arrest, defendant never mentioned anything to police about the scenario he sets forth on appeal. The cell phone records place defendant in the vicinity of the theft and near the CarMax lot and the following morning defendant texted Lucchesi advising her he was in trouble and asking to be picked up. After the incident, Lucchesi sent numerous texts to defendant describing the chases and hit-and-run incidents and threatening to turn him in. Defendant returned to Sacramento. Lucchesi told detectives that she overheard a conversation between defendant and a neighbor in which defendant revealed knowledge which could only come from a participant.
In addition, "in order to 'tell his truth,' the defendant would have had to take the stand and there be confronted with what would arguably have been the devastating impact of his prior moral turpitude convictions." Finally, the court noted the subscriber of the phone used to make the calls on the night of the robbery was Chevy Man. On his back defendant had tattoos of a variety of different Chevrolet vehicles and the Chevrolet emblem. Given all the evidence, an alibi defense was unavailable given the lack of corroborating evidence.
Competing against the tenuous alibi defense was "the perfect storm of evidence that supported a defense of police misconduct centered upon a conspiracy to frame the defendant . . . ." The court noted that allegedly after defendant was identified as a suspect in the assault on Sanguinetti, anger over the incident led Detective Bell to either secure a second secret DNA sample from defendant or contaminate the existing swab from the steering wheel. Defense counsel argued Bell concurrently possessed both the DNA swab from the stolen vehicle's steering wheel and defendant's swab from his post-arrest interview, allowing for the possibility of intentional contamination.
In addition, Sanguinetti conducted a search of Lucchesi's home during which he went into the bedroom closet and dresser, purportedly in search of material that would contain DNA. Sanguinetti announced a personal vendetta against defendant. The court found "a political climate arguably existed conducive to selling jurors on the reality that a conspiracy of law enforcement could be created and executed in order to convict an innocent person of a crime they had not committed."
The question before the court was whether the abandonment of the alibi defense in exchange for a defense based on a theory of rogue officers attempting to frame a person was a reasonable choice by defense counsel. The court noted the risk of hindsight, but found it was not unreasonable for defense counsel to present a defense based on a police conspiracy. Given the evidence, "the decision to present a conspiracy-based defense was not only reasonable, it was the only one counsel could have made with any hope of success, given the state of the evidence surrounding the defendant's alleged alibi." The court also found defendant's decision not to testify was fully informed and exercised without undue influence from counsel.
Sentencing
The court sentenced defendant as follows: on count one, 25 years to life, plus five years for the prior conviction allegations (§ 667, subd. (a)), plus three, one-year terms for three prior convictions (§ 667.5, subd. (a)); on count two, one-third the midterm, eight months, doubled pursuant to the "Three Strikes" law; on count three, the upper term of four years, doubled pursuant to the Three Strikes law; and, on count four, one-third the midterm of three years (one year), doubled pursuant to the Three Strikes law, with the latter term stayed pursuant to section 654. The court imposed four additional one-year terms for four prior convictions. (§ 667.5, subd. (b).) The total term imposed was 21 years four months, plus 25 years to life in state prison. Defendant filed a timely notice of appeal.
DISCUSSION
I
Ineffective Assistance of Counsel
In a rambling argument that alludes to various published cases where courts have found ineffective assistance of counsel for reasons and under circumstances totally dissimilar from the present case, defendant ultimately asserts that "By presenting and arguing a false set of facts to the jury, knowing the DNA evidence in the [stolen truck] was in fact appellant's DNA, resulted in ineffective assistance of counsel, denying appellant his right to a fair trial." We are not persuaded.
To establish ineffective assistance of counsel, a defendant must show counsel's performance was deficient and fell below an objective standard of reasonableness, and it is reasonably probable that a more favorable result would have been reached absent the deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 [80 L.Ed.2d 674, 693].) A reasonable probability is a "probability sufficient to undermine confidence in the outcome." (Id. at p. 694.)
To perform competently, counsel should realistically examine the evidence and issues and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances. Defense counsel must investigate all defenses, explore the factual bases for defenses, and evaluate the applicable law. (People v. Freeman (1994) 8 Cal.4th 450, 509; People v. Maguire (1998) 67 Cal.App.4th 1022, 1028.)
We accord trial counsel's tactical decisions substantial deference and do not second-guess counsel's reasonable tactical decisions. (People v. Maldonado (2009) 172 Cal.App.4th 89, 97.) We reverse only if the record affirmatively discloses trial counsel could have had no rational tactical purpose for the challenged act or omission. (People v. Lucas (1995) 12 Cal.4th 415, 436-437.)
The record here reveals a carefully developed trial strategy based on counsel's consultation with defendant and consideration of the available evidence. Defense counsel interviewed defendant prior to trial and defendant initially insisted he had no idea how his DNA got in the truck. Defendant made several suggestions as to how the DNA might have been planted and theorized the police might have taken his DNA outside the interview room during questioning. During subsequent interviews, defendant offered other versions of how his DNA could have been planted.
Defense counsel explained his trial strategy to defendant, explaining that they would attack the DNA on the steering wheel by suggesting Bell or Sanguinetti somehow tainted the evidence. The DNA on the steering wheel was more incriminating than the hat; the hat was transportable, the steering wheel was not. Problems with the chain of custody of the DNA sample supported his argument to the jury on this point. Defense counsel believed the risks of defendant testifying, including his possible impeachment with multiple felony convictions, outweighed the potential gains from his testimony. After defendant suggested David and the apartment manager could provide alibi evidence, defense counsel dispatched an investigator to interview them. Neither provided helpful information.
The problem with defendant's claim is that trial strategies cannot be created out of whole cloth but must find support in admissible evidence. Defense counsel's accounting of the evidence available to him in constructing a trial strategy is totally at odds with defendant's "truth." Given the evidence, defense counsel's decision to present the DNA defense was appropriate under the circumstances. Defense counsel reviewed and evaluated his options and pursued the option he believed most viable, though not the option that defendant now in hindsight would have preferred. We find no ineffective assistance of counsel.
II
Motion for a New Trial —Ineffective Assistance
Defendant argues the trial court's denial of his amended motion for a new trial violated his right to due process because it rendered his trial fundamentally unfair. He contends defense counsel improperly influenced the jury during closing arguments, misleading the jury with a false defense.
Ineffective assistance can provide the basis for a new trial based on the constitutional duty of trial courts to ensure defendants are accorded due process. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583; People v. Callahan (2004) 124 Cal.App.4th 198, 209.) We review the denial of a motion for a new trial de novo, but defer to the trial court's findings if they are supported by substantial evidence. (People v. Albarran (2007) 149 Cal.App.4th 214, 224-225)
Defendant's new trial argument is based on the same facts as his ineffective assistance claim. We have found this argument without merit and for the same reasons we reject defendant's contention that the court erred in denying his new trial motion.
III
Motion for a New Trial —Juror Misconduct
Defendant contends the court erred in denying his motion for a new trial based on juror misconduct. During trial it became known that a juror, A.G., failed to inform the court during voir dire that he had previously worked in the court's law library and knew court personnel. This, defendant claims, constituted juror misconduct.
Background
Prior to sentencing, defendant filed a motion for a new trial on the grounds of juror misconduct. Defendant alleged A.G. presented false or misleading testimony during jury selection in violation of section 1181, subdivision (3). Defendant argued that when asked about law enforcement contacts, A.G. failed to mention his acquaintance with court attendants stemming from his work in the law library.
Defendant attached a declaration from trial counsel stating A.G. had stated: " 'About 15 years ago, I worked as a clerk in the law library when it was still in the basement of the courthouse. As such, I would often deliver materials to the various courtrooms. During the trial, I ran into two court attendants that I remember from my time working there. These were not personal friends, but rather professional colleagues. I have had no contact with either since I left that job.' "
The court held a hearing on the motion. After considering the evidence, the court determined no competent evidence supported the motion. Defendant claimed the juror, in response to the question as to whether the juror was ever employed by a law enforcement agency, failed to advise the court he knew court attendants during his tenure in the court library. The court found: "A court attendant, however, is not a law enforcement officer. Attendants are not sworn peace officers as that concept is defined in . . . section 830 . . . . They don't wear a badge. They don't carry a gun. They don't wear a uniform nor do they possess powers to arrest. At best, they are civilian employees assigned to the courtrooms to assist in the daily efforts to conduct trials and other court proceedings." Given that definition, the court found no reasonable basis to expect the juror would or should make the connection between law enforcement officers and court attendants. Nor were the jurors advised of any expansive meaning of "law enforcement."
Even assuming the failure to disclose constituted misconduct, the court found no likelihood the juror was impartially influenced to defendant's detriment: "Here the . . . juror purportedly had a brief conversation with a current courthouse attendant whom he knew or recognized from his prior employment in the law library. Yet there is no evidence of the nature, the content or the length of this conversation and, therefore, no evidence upon which the Court can conclude that the juror failed to follow the Court's admonition not to discuss any aspect of the case nor to form or express any opinion connected to it until the matter had been submitted for purposes of deliberation by the jury." Based on the absence of any evidence of misconduct the court denied the motion.
Discussion
Under section 1181, subdivision (3) a court may grant a new trial when the jury has been guilty of any misconduct which prevents a fair and due consideration of the case. In assessing such a claim, the court considers the admissibility of the affidavits supporting the motion, determines whether the facts establish misconduct and, if it finds misconduct, determines whether the misconduct was prejudicial. (People v. Perez (1992) 4 Cal.App.4th 893, 906.) We will not disturb the trial court's conclusion absent a clear abuse of discretion. (People v. Dorsey (1995) 34 Cal.App.4th 694, 704.)
At the outset, the court found the declaration accompanying the motion asserted only hearsay statements of unidentified members of defendant's family and prior trial counsel. However, even assuming competent evidence had been submitted, the court found it insufficient to support defendant's claim. We agree on both counts.
The only support for defendant's motion was a declaration by defense counsel recounting an out-of-court statement by A.G. Counsel states A.G. told someone that during the trial he encountered two court attendants he remembered from fifteen years ago when he worked at the law library. Such hearsay is insufficient to establish an abuse of discretion in the court's denial of a new trial based on juror misconduct. (People v. Dykes (2009) 46 Cal.4th 731, 810.)
Even assuming the declaration was admissible, the trial court correctly found the facts did not establish misconduct. A.G. failed to inform the court of his fifteen-year-old acquaintance with court attendants. The court noted a court attendant is not the equivalent of a law enforcement employee and A.G.'s omission to mention his connection was not misconduct. The court properly denied defendant's motion for a new trial based on juror misconduct.
IV
Motion to Strike Prior Strike Convictions
Finally, defendant argues the trial court abused its discretion in denying his motion to strike his prior serious or violent felony convictions under section 1385. He contends the trial court failed to strike one or more strikes arising from a single act.
Background
Defendant, prior to sentencing, brought a motion to strike his prior convictions under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). According to defendant, all nine prior strikes arose from a single act or were closely connected to the single act.
In opposition the prosecution argued although they were committed during the same crime spree, they were not a single incident. The prosecution noted they involved multiple victims over a period of time.
The probation report summarizes defendant's prior strike convictions: "On 4/3/02, the defendant was involved in a vehicle pursuit with Riverside PD officers, which included two non-injury traffic incidents with citizens. The defendant was able to evade arrest at that time, and was found to be a parolee-at-large. When officers obtained information of the defendant's location, they attempted to contact him at the address, but the occupants advised he was not there. Surveillance was conducted on the residence, after officers learned the defendant had returned. Shortly thereafter, the defendant was observed running to a nearby vehicle, which was later found to be stolen. Responding probation officers grabbed hold of the defendant through the driver's side door, but the defendant started the engine and accelerated away, dragging the officer along with him. The officer was knocked violently to the ground and the rear portion of the vehicle hit another officer who had come to the aid of his partner. The defendant drove through two residential gates, crashed into a tree, and fled on foot. He subsequently 'carjacked' another vehicle in the area, but after a perimeter was established, he was eventually detained." Defendant's nine strikes stemmed from these series of events. He was sentenced to serve 12 years in state prison and was still on parole for those offenses when the current incident took place.
In denying defendant's motion, the trial court carefully considered defendant's current and prior convictions. The court summarized the current charges and observed: "In short, through his conduct, the defendant placed at extreme risk, not only his own life, but the life of Officer Sanguinetti and every pursuing peace officer involved in the chase and every citizen either on the road or in the path of the defendant's reckless flight."
The court enumerated defendant's convictions from 1992 through 1998. Based on this history, the trial court found it clear "that defendant has had an uninterrupted history of criminal convictions and accompanying county jail or state prison commitment from 1992 to the current offense in 2014. Of particular note are the facts of the 1998 case in which Mr. Ditto was sentenced to state prison for five years."
The trial court set forth the facts underlying the 1998 conviction: "In that matter, it's reported he was the driver of a stolen vehicle, fled from officers when contacted in a traffic stop. Speeds in the ensuing chase reached upwards of 80 miles an hour through city streets. Ultimately he stopped and fled on foot from pursuing officers. [¶] He then approached an off-duty Sheriff's deputy riding an ATV with his family and unsuccessfully attempted to take the ATV. But for the . . . issue of the attempted theft of the ATV, these facts are a near duplicate to those of the current incident in 2014."
After reviewing the facts underlying the 2002 incident, the court found the 1998 and 2002 convictions bore "a striking resemblance to those of the current case to include the defendant's stealing a vehicle, using that vehicle as a tool to assault a pursuing officer, engaging in a high-speed chase with police while crashing through a gate, all before fleeing on foot from pursuing police officers."
Ultimately the court concluded: "Having reviewed each of the foregoing factors, I cannot say that the defendant falls outside of the spirit of the three-strikes law, nor do I find that those strikes pled and admitted to in the 2002 Riverside County matter resulted from a single act or from multiple acts arising from in indivisible course of conduct. [¶] And therefore, based upon the foregoing analysis, the defendant's Romero motion is denied."
Discussion
We review a court's failure to strike a prior conviction for an abuse of discretion. The party challenging the sentence bears the burden of showing the sentence was irrational or arbitrary. Absent such a showing, we presume the court acted to achieve legitimate sentencing objectives and will not disturb the sentence. We have no authority to substitute our judgment for that of the trial court. (People v. Carmony (2004) 33 Cal.4th 367, 374, 376-377.)
In making its determination, the court considers the defendant's background and the nature of the present offense. The court must decide whether the defendant falls outside the spirit of the Three Strikes law: "whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161; accord, Romero, supra, 13 Cal.4th at p. 531.)
According to defendant, his numerous prior convictions all arose out of a single act, his criminal conduct between April 3, 2002, and April 5, 2002. His attempts to evade arrest formed the bases of the convictions. Defendant cites People v. Burgos (2004) 117 Cal.App.4th 1209 (Burgos) in support of his claim that the trial court abused its discretion.
In Burgos, the defendant was convicted of attempted robbery and attempted carjacking out of the same incident. Both strikes were subject to section 215, which precluded sentencing for both offenses. (Burgos, supra, 117 Cal.App.4th at p. 1216.) The Burgos court found the failure to strike one of the two prior convictions that arose from a single act amounted to an abuse of discretion. (Id. at p. 1214.) Defendant contends, in the present case, he was sentenced on multiple strikes arising from a single act.
Here however, defendant's criminal convictions in 2002 took place over several days. After the initial vehicle pursuit, defendant left in another vehicle, escaping apprehension. Some time later, after officers conducted surveillance on a residence, defendant returned to the residence. Defendant ran to a vehicle and drove away, dragging an officer with him. After he drove away, defendant crashed, and fled on foot. He carjacked another vehicle and was eventually arrested. The court in Burgos found the defendant's two prior convictions were " 'so closely connected' " as having arisen from a single act. (Burgos, supra, 117 Cal.App.4th at p. 1216.) This is not true in the case before us and the trial court did not abuse its discretion.
DISPOSITION
The judgment is affirmed.
RAYE, P. J. We concur: BUTZ, J. HOCH, J.