Opinion
H023405.
7-24-2003
THE PEOPLE, Plaintiff and Respondent, v. TED PAUL INIGUEZ, Defendant and Appellant.
A jury found defendant Ted Paul Iniguez guilty of two counts of violating Vehicle Code section 10851, subdivision (a) (unlawful driving or taking of a vehicle) (counts one and two), two counts of violating Penal Code section 136.1, subdivision (c)(1), (dissuading or attempting to dissuade a witness by threat of force) (counts three and five), and one count of violating section 422 (criminal threat) (count four). Following the verdict, defendant admitted he suffered a prior serious or violent felony conviction within the meaning of Three Strikes law ( §§ 667, subds. (b) to (i); 1170.12), he suffered a prior serious felony conviction within the meaning of section 667, subdivision (a), and he served two prior prison terms within the meaning of section 667.5, subdivision (b). The court sentenced defendant to a total prison term of 25 years. Defendant appeals.
All further statutory references are to the Penal Code unless otherwise stated.
Defendant was first charged with one count of violating Vehicle Code section 10851, subdivision (a). Grand jury proceedings were subsequently held and an indictment charging the additional offenses was filed. The court granted the Peoples motion to consolidate the actions.
Defendant now contends that the court erred by failing to instruct sua sponte on lesser included offenses, failing to instruct the jury regarding the factual basis for the criminal threat charge, imposing sentence on counts one and two pursuant to Penal Code section 666.5 in absence of admissions or true findings, and imposing sentence on counts three and five pursuant to section 1170.15 based on an erroneous belief that section 1170.15 mandates consecutive sentences. The People concede sentencing error. In their initial brief, the People also raised additional grounds for reversing the criminal threat conviction.
We reverse and order a limited remand.
A. Evidence
On October 4, 2000, Richard Galinis and Justin Pankratz, both police officers with the City of Milpitas, responded to a report of a stolen car. Upon arriving at the specified Corning Avenue address, Officer Pankratz saw a car parked in front matching the description of the stolen vehicle. Officer Galinis contacted Agredano, who indicated she believed defendant had stolen a vehicle. Agredano told him that defendant had a gun and that "she had heard from another person that [defendant] had stolen the vehicle." She said defendant was hiding in her backyard. Officer Galinis and Officer Pankratz went to the side gate and heard something hitting the fence. Defendant was not located in the backyard.
A search for defendant ensued. At some point during the search, Melissa Paxson approached Officer Pankratz and showed him a 17-digit number, which he wrote down.
He testified that the number was THAKA9647V6003681.
Officer Galinis broadcast the situation to other police officers and remained in the vicinity of the vehicle that Agredano had pointed out. Although the stolen vehicle had originally been described as a Ford Bronco, the vehicle identified was a black Toyota 4Runner parked in front of the next door neighbor, within 100 yards of Agredanos house. The vehicle had no license plates. It had a dealers paper plates and a Hayward Toyota invoice sticker on the right rear passenger window. Officer Galinis retrieved the Vehicle Identification Number from the vehicle. He requested that dispatch contact Hayward Toyota and received a confirmation that the Toyota was an unreported stolen vehicle.
Sometime while Officer Galinis was doing paperwork concerning the stolen vehicle, Agredano came out of her house and told him that defendant was hiding in her house. Defendant was apprehended in the back bedroom and taken into custody.
Jonathan Le, the used car manager for Hayward Toyota, testified that a 2001 Toyota 4Runner, with the same VIN number as the Toyota found parked, had been found missing from the lot at Hayward Toyota in October 2000. Hayward Toyota was also supposed to have had a 1997 Acura RL, Vehicle Identification Number JHAKA9647V6003681, on its lot. After Hayward Toyota received a report that the Acura was stolen, the manager and his assistant unsuccessfully tried to locate it on the lot and confirmed the vehicle was missing. Neither the Toyota nor the Acura had been sold and defendant did not have permission to drive them. The vehicles were returned to the companys possession around November 2000.
Kristen Hole, a police officer with the City of Milpitas, testified that she inspected and inventoried the Black Toyota. Inside the car, she found, among other things, a sticky note with the word "Nasonex" on it. It was sent to the crime lab. She also lifted latent prints from the exterior of the drivers side door.
A crime scene technician testified that on October 5, 2000, he was sent to process a 1997 black Acura, located at that time at the rear of an apartment complex. He discovered a latent print on the drivers side interior window.
A senior fingerprint examiner with the San Jose Police Department matched the fingerprints taken from the Acura and the Toyota to defendants fingerprint card. He also matched a print from the sticky note to defendants thumbprint.
Henriette Agredano testified that she had three sons, Richard, Joe, and Mario, and defendant was Richards friend. Agredano went by the nickname Kiki. Agredano testified that in October 2000, she was living in a rented home in Milipitas with her sons and her then boyfriend Daniel Rivera. Various young people, including defendant and Anna Jans, would sometimes stay over at the house. On October 4, 2000, Anna Jans was staying there.
At one point Agredano testified that, on the day before the police came to her house, she saw defendant park a car on her driveway. Defendant asked if he could use tools from her house and she said, "Go ahead." Agredano saw defendant working with tools on the car on the driveway and her son Richard was with him. Agredano testified that she began to suspect that defendant was stealing cars when she saw little metal boxes on her driveway and was told they came off a stolen vehicle.
At another point Agredano testified that, on the morning of the day police came out, she saw defendant with a large dark car, which her friend Melissa had said was an Acura. Defendant was washing the car at her fathers house across the street.
Officer Galinis testified that Agredano told him that she had seen defendant in the Acura the day before.
Agredano testified that later she saw a paper with numbers on it on the coffee table in her living room. Agredano saw Melissa Paxson copy numbers from the piece of paper. Melissa told her it was a paper from a new car. She later saw Paxson show the information to a Milpitas police officer.
Agredano testified that she also saw defendant drive a dark Bronco, "a big black one, like a four by four," in front of her home and park it on the street in front of the house next door. She recalled asking defendant, when he came into her house, where he got the car and he replied that his dad was selling cars.
Agredano testified that she asked someone else to call the police because she was afraid and indicated she did not have a working phone at her house. When the police arrived, her son Richard announced the police were there and ran to the backyard. She remembered going to the front of the house and telling an officer that defendant was in the backyard. She talked to police about the black car that was parked next door, which was the same place she saw defendant park it and get out. She indicated she told police she had seen defendant driving that car. Agredano testified that she recognized the vehicle in exhibit one, a photograph, as the car she had seen defendant driving and the car that was parked on the street when the police came out. Agredano also testified that she told police that defendant might have a gun and she had seen him with a gun earlier in the day.
Agredano indicated that, later that same day, defendant returned to her house and she let him in through the back door. Defendant went into the back bedroom. She went out front and told the police that defendant was hiding in the back room. Two police officers entered the house, kicked in the door to the back bedroom, and took defendant out.
Agredano testified that, in about mid-October, she received a two-page letter dated October 14, in an envelope postmarked October 16, 2000, from defendant. The letter, which was handwritten on lined, yellow paper, began: "Greetings Kiki[.] This is Ted Iniguez[.]" Among other things, the letter asked why Agredano had called the police and told them that he had a semiautomatic handgun and directed Agredano to call his parole agent and the arresting officer and tell them she had made a mistake. The last paragraph includes the following language: "And so we could remain on good terms, if not me or sombody or goin to do somthin two you or one of your family members. Strate up no games." While she perceived these words as a threat, she did not take the end of the letter seriously. She was not initially frightened but became frightened later.
Italicized portions denote spelling and grammatical errors in the original.
Agredano testified that two police officers came to her house on Halloween and warned her that defendant and his brother had been talking on the phone in jail and "they were going to blow [her] house down and burn [her] truck and throw bricks at [her] windows." She was warned that defendant was "going to have somebody come and burn [her] house down." She first began to worry about defendant when the police came to warn her.
Agredano also testified that, around Halloween, she received in the mail a second handwritten letter. It came in an envelope postmarked October 31, 2000. Two tombstones were drawn on the outside of the envelope. One tombstone had "RIP" above it and stated: "Kiki died Nov 10 2000." The other tombstone stated: "Mellissa Jeane Paxon R.I.P." The return address indicated the letter was from "Frank Mendez."
The letter, on lined, yellow paper, began: "Greetings Miss Henrtte Agredano A.K.A. Kiki." The letter was from "Sleepy A.K.[A.] Frank Mendez Votio V.S.J." Agredano testified that she did not know a Frank Mendez and suspected that defendant had written the letter because the handwriting looked the same as the handwriting on the previous letter.
In both communications, the print slants in the same direction and some "A" letters are upside down.
The letter recited personal information regarding her, including her address, phone number, drivers license number, date of birth, height and weight. The letter also contained personal information regarding Melissa Paxson, including the fact that her phone was not working at the time.
The letter stated (see fn. 5, ante): "The reason why I am writting you this letter is cause your a snicth and got # 1 of my good homeys locked up. I will be getting release from jail pretty soon & I am going to pay you a unpleasant visit . . . ." The letter warned (see fn. 5, ante): "You could run, but you cant hide hoe, I probly will rape you & cut you up & blow up your Nissan truck & your punk ass old mans white Chevy truck & whoop on your fat ass sons Richard & Bob & take Morio two if they want problem. My hole hood will participate in this, if punk ass V.M.C. wants to get involved. I will make sure you wont be able to testify against the young homey Casper." She was told by her children that V.M.C. referred to a gang. The letter concluded with the words (see fn. 5, ante), "Fucken rat bicth 187," followed by an arrow pointing at the word "hoe," and then the words, "cut your head off and make you suck my dick bicth."
Agredano understood the second letter to be a threat and felt scared after she read it and was crying. Although she did not know the meaning of "187," she confirmed that she was "truly afraid that somebody might try and kill" her. She testified that she met a Milpitas police officer around the corner from her house so "the kids wouldnt see [her] talking to the police" and gave the letter to an officer. At one point, she indicated that the officer had met her the day she got the letter. She testified that she told Melissa about the letter. Agredano testified that she had been afraid since October 2000 and was still afraid.
Section 187 defines murder.
Agredano testified that, after receiving the "Frank Mendez" letter, she found two other letters, both to "Ana," with similar handwriting on the floor of her son Richards bedroom. Both letters were handwritten on yellow lined paper. Agredano testified that in October 2000, Anna Jans was living in her house and Anna was defendants girlfriend.
In the salutations, "Ana" was written with upside down "A"s.
A portion of one of the letters was directed to Richard and states (see fn. 5, ante): "Nobody even told me that your mom & her friend Mellissa strate ratin on me and lettin the pigs come and get me at your house. . . . If your mom comes and tells on me in court. Its on bro weather shes your mom or not strate up. All out, gorilla war far homey. And far as her friend goes shes goin to made as an example that all I got to say about that."
At trial, Melissa Paxson indicated she was a long-time friend of Agredano and, around October 2000, they saw each other regularly every morning. She testified that, on October 4, 2000, she went over to Agredanos for coffee and, as she walked up, she saw defendant in Agredanos driveway "in the process of trying to break a key lockbox off of a newer car," a dark or black Acura or a Honda. He was trying to get it off with a hammer and screwdriver. She saw an "as-is" sign, which had the word "Acura" or "Honda" on it, in the cars window.
Paxson testified that she later saw the "as is" sign on Agredanos coffee table. She copied down the vehicle identification number, the year, make, and model, and the name of the dealership. She testified that, later that day, she gave the information to a police officer.
Paxson testified that, when she saw the "as-is" paper in the house, Richard had left with defendant in the car. Agredano testified that, when the paper was on her coffee table, defendant was working on the car and Richard was in the bedroom.
A cassette tape of two telephone conversations from the Santa Clara County jail was played for the jury and admitted into evidence. The first telephone conversation occurred on October 10, 2000, between defendant and Veronica Resendez. The second telephone conversation occurred on October 30, 2000, between defendant and his brother Matthew.
In the October 10, 2000 telephone conversation, defendant tells Resendez to "put the smash down at that pad." He directs Resendez to get a regular brick from the store and a rat from the pet store, kill the rat, write on the brick, duct tape the dead rat on the brick, and throw it through the window. At one point, defendant directs Resendez to write on the brick: "Kikis a rat. Youre going to die, bitch. Dont testify. "At another point, he tells Resendez to write "Kiki, fucking rats die." Defendant informs Resendez that he will be getting out soon because she, impliedly Agredano, is not coming to testify. Defendant also asks Resendez to bust up her blue truck and light it on fire. He says, "They aint got no case, they aint got shit," and reiterates, "Put the smash down."
During the October 30, 2000 telephone conversation, defendant directs his brother to tell Joe to go over there and "lay out that fucking fat ass Richard . . . ." He told his brother to "go fucking smash up them pads," urges his brother to "handle that" on Halloween, to use "bottles, bricks, fucking whatever," and to "fuck up that fat fuck with a baseball bat." He tells his brother that she drives a light blue Nissan truck and directs him to "bust up" her truck and pop the tires, smash the windows, and spray paint "rat" on her car. He complains "his mom," impliedly Richards mom, set him up.
Veronica Resendez testified at trial that she had been defendants girlfriend since April 2000. She testified that she had received letters from defendant. She acknowledged that the handwriting in an October 21, 2000 letter to Anna from defendant and in the "Frank Mendez" letter looked like defendants handwriting. Resendez also acknowledged that the voices in the tape-recorded October 10, 2000 conversation were hers and defendants.
Eric Emmanuele, a police officer with the City of Milpitas, testified that he was assigned to do the follow-up investigation of defendants alleged threats. He testified that Officer Smith took the original report of the threats and contacted Agredano on Halloween.
On November 1, 2000, Raj Maharaj, a police officer with the City of Milpitas, was dispatched to respond to a phone call concerning a threat report. He went to the address and met Agredano. Agredano was worried about being seen speaking with Officer Maharaj in front of her own house. He met up with her again at an intersection about a block to the north. Agredano seemed very nervous and jumped every time a car would drive by. She told him that somebody was sending her threatening letters. Agredano gave Officer Maharaj some letters, specifically defendants first letter, the "Frank Mendez" letter, a letter to "Ana" dated October 21, 2000, and an undated letter to "Ana," and indicated to the officer that they had been received during approximately October 14, 2000 to November 1, 2000. He did not have any knowledge about the defendants conversations from the county jail and did not speak to Agredano about them.
A criminologist with the Santa Clara County Crime Laboratory compared the handwriting on the various letters and envelopes with inmate grievance forms from defendants classification file maintained for the Department of Corrections, the "known documents." She concluded that the writer of the grievance forms was the writer of all the letters and the envelope postmarked October 31, 2000. The criminologist was certain that the person who wrote the "known documents" also wrote the "Frank Mendez" letter.
The criminologist did not reach a conclusion regarded exhibit 2C, the envelope postmarked October 16, because the writing was very faint.
B. Lesser Included Offenses
1. Instruction Regarding Auto Tampering and Malicious Mischief
Defendant argues, and the People concede, that auto tampering in violation of Vehicle Code section 10852 and malicious mischief in violation of Vehicle Code section 10853 are both lesser included offenses to unlawful driving or taking of a vehicle in violation of Vehicle Code section 10851. Defendant maintains that, therefore, the court had a duty to instruct sua sponte on those lesser offenses and its failure to do so was prejudicial. The People assert that the court had no such duty to instruct on its own initiative because there was no evidence from which the jurors could conclude that a lesser offense, but not the greater offense, was committed and, in any event, the error was harmless.
A violation of Vehicle Code section 10851 requires proof of the following elements: (1) the accused took or drove a vehicle belonging to another; (2) the other person had not consented to such taking or driving of his vehicle; and (3) when the accused took or drove the vehicle, he had the specific intent to deprive the owner either permanently or temporarily of title to or possession of the vehicle. (Veh. Code, § 10851; see CALJIC No. 14.36.) A violation of Vehicle Code section 10852 requires proof that a person, "either individually or in association with one or more other persons," wilfully injured or tampered with any vehicle or its contents or broke or removed any part of a vehicle without the consent of the owner. (Veh. Code, § 10852.). "Tamper" means "interfere with" and interference encompasses any act inconsistent with anothers ownership. (People v. Anderson (1975) 15 Cal.3d 806, 810, 126 Cal. Rptr. 235, 543 P.2d 603) Vehicle Code section 10853 states: "No person shall with intent to commit any malicious mischief, injury, or other crime, climb into or upon a vehicle whether it is in motion or at rest, nor shall any person attempt to manipulate any of the levers, starting mechanism, brakes, or other mechanism or device of a vehicle while the same is at rest and unattended, nor shall any person set in motion any vehicle while the same is at rest and unattended."
"A court must instruct sua sponte on general principles of law that are closely and openly connected with the facts presented at trial. [Citation.] This sua sponte obligation extends to lesser included offenses if the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense. [Citations.] [Citations.] . . . A criminal defendant is entitled to an instruction on a lesser included offense only if [citation] "there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense" [citation] but not the lesser. [Citations]. [Citation.]" (People v. Lopez (1998) 19 Cal.4th 282, 287-288, 965 P.2d 713.) There is no obligation to instruct on lesser included offenses "when there is no evidence the offense was less than that charged. (Ibid.)" (People v. Koontz (2002) 27 Cal.4th 1041, 1085; see People v. Breverman (1998) 19 Cal.4th 142, 162, 960 P.2d 1094 [there must be substantial evidence that the lesser offense, but not the greater, was committed]. )
"In a noncapital case, error in failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under [People v. ] Watson [(1956) 46 Cal.2d 818, 836]. A conviction of the charged offense may be reversed in consequence of this form of error only if, after an examination of the entire cause, including the evidence (Cal. Const., art. VI, § 13), it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. (Watson, supra, 46 Cal.2d 818, 836)." (People v. Breverman, supra, 19 Cal.4th 142, 178.)
"People v. Watson, supra, 46 Cal.2d at page 836, requires a reasonable probability, not a mere theoretical possibility, that the instructional error affected the outcome of the trial." (People v. Blakeley (2000) 23 Cal.4th 82, 94, 999 P.2d 675.) "In posttrial review of a judgment an appellate court focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. (Breverman , supra, 19 Cal.4th at p. 177.)" (People v. Lee (1999) 20 Cal.4th 47, 62, 971 P.2d 1001.)
Here, the evidence of unlawful taking or driving of the Toyota and the Acura indicated that defendant, if he was guilty at all, was guilty of the greater offense. Furthermore, reversal would not be required here even if we accepted defendants claim of error.
Agredanos testimony that she saw defendant driving each of the two vehicles was strengthened by other evidence. Paxson testified to seeing defendant on Agredanos driveway trying to remove the key lockbox from a newer Acura or Honda. The Toyota was parked on the street near Agredanos house and defendant was in her backyard when police responded to the report of a stolen vehicle. Defendants fingerprints linked him to the stolen vehicles. In addition, evidence of defendants initial flight and efforts to suppress Agredanos testimony by intimidation indicated his consciousness of guilt. (See Evid. Code, § 413.) The instructions, as a whole, clearly directed the jury to find defendant not guilty if it did not believe defendant had driven or taken the vehicles as alleged. Under all these circumstances, even assuming error, there is no reasonable probability that the jury would have convicted defendant of vehicle tampering or malicious mischief, instead of unlawful driving or taking of a vehicle, had the court instructed on those lesser offenses.
2. Instruction Regarding Attempted Criminal Threat
Defendant argues that the court erred in failing to instruct regarding attempted criminal threat (see People v. Toledo (2001) 26 Cal.4th 221, 230-231 [crime of attempted criminal threat exists]) ( §§ 422, 664) as a lesser included offense of the criminal threat charge. He argues that the jury could have believed that Agredano was actually frightened by her conversations with police rather than by defendants threatening letters. He also asserts that the jury could have found that defendant attempted to deliver a threat to Agredano through Resendez or his brother Matthew.
A trier of fact "may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged, or of an attempt to commit the offense." (§ 1159.) Presumably, a trial court has the same duty to instruct sua sponte in regard to an attempt as it does in regard to a lesser included offense. (See People v. Crary (1968) 265 Cal. App. 2d 534, 540, 71 Cal. Rptr. 457; see also People v. Lopez, supra, 19 Cal.4th 282, 288- 289 [discussing sua sponte obligation to instruct on lesser included offenses].)
Section 422 makes it a crime to willfully threaten "to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety . . . ."
"[A] defendant properly may be found guilty of attempted criminal threat whenever, acting with the specific intent to commit the offense of criminal threat, the defendant performs an act that goes beyond mere preparation and indicates that he or she is putting a plan into action. Furthermore, in view of the elements of the offense of criminal threat, a defendant acts with the specific intent to commit the offense of criminal threat only if he or she specifically intends to threaten to commit a crime resulting in death or great bodily injury with the further intent that the threat be taken as a threat, under circumstances sufficient to convey to the person threatened a gravity of purpose and an immediate prospect of execution so as to reasonably cause the person to be in sustained fear for his or her own safety or for his or her familys safety. [P] A variety of potential circumstances fall within the reach of the offense of attempted criminal threat. For example, if a defendant takes all steps necessary to perpetrate the completed crime of criminal threat by means of a written threat, but the crime is not completed only because the written threat is intercepted before delivery to the threatened person, the defendant properly may be found guilty of attempted criminal threat. Similarly, if a defendant, with the requisite intent, orally makes a sufficient threat directly to the threatened person, but for some reason the threatened person does not understand the threat, an attempted criminal threat also would occur. Further, if a defendant, again acting with the requisite intent, makes a sufficient threat that is received and understood by the threatened person, but, for whatever reason, the threat does not actually cause the threatened person to be in sustained fear for his or her safety even though, under the circumstances, that person reasonably could have been placed in such fear, the defendant properly may be found to have committed the offense of attempted criminal threat. In each of these situations, only a fortuity, not intended by the defendant, has prevented the defendant from perpetrating the completed offense of criminal threat itself." (People v. Toledo, supra, 26 Cal.4th at pp. 230- 231.)
"The examples set out above . . . describing some of the most common situations that would support a conviction of attempted criminal threat, demonstrate that in most instances the crime of attempted criminal threat will involve circumstances in which the defendant in fact has engaged in all of the conduct that would support a conviction for criminal threat, but where the crime of criminal threat has not been completed only because of some fortuity outside the defendants control or anticipation (for example, because the threat is intercepted or not understood, or because the victim for some reason does not actually suffer the sustained fear that he or she reasonably could have sustained under the circumstances)." (People v. Toledo, supra, 26 Cal.4th at pp. 233-234.)
Defendants assertion that evidence of the October 30, 2000 conversation with his brother supported a finding of an attempted criminal threat is unsound, even assuming "the crime of attempted criminal threat properly should be interpreted to reach circumstances in which the defendant has not yet actually made the type of threat prohibited by section 422" (People v. Toledo, supra, 26 Cal.4th at p. 234). In that October 30 conversation, defendant did not make any threatening "statement," as defined by section 422, against Agredano directly and he did not advise his brother to make any such statement to Agredano. Rather, defendant merely urged violence against Agredano.
In addition, defendants claim that evidence of his October 10, 2000 conversation with Resendez supported a finding of attempted criminal threat is incorrect, even assuming that under the proper circumstances a defendant could be liable as an aider and abetter ( § 31) if he instigated and encouraged an attempted criminal threat. An attempt requires a direct, unequivocal act beyond mere preparation or planning. ( § 21a, People v. Dillon (1983) 34 Cal.3d 441, 452-455, 194 Cal. Rptr. 390, 668 P.2d 697.) Here, Resendez did nothing.
However, defendant is correct that if the jury found that defendants "Frank Mendez" letter did not cause Agredano to be fearful then defendant would have been guilty at most of attempted criminal threat. However, as pointed out by the People, "the threatening statement does not have to be the sole cause of the victims fear . . . ." (People v. Solis (2001) 90 Cal.App.4th 1002, 1014, fn. omitted.) Agredano clearly testified that she was scared and crying after she read the "Frank Mendez" letter although she was a little confused about the chronology of events.
Her testimony was confused in regard to what came first, the police warning about defendants importuning of violence against Agredano or her receipt of the "Frank Mendez" letter. She acknowledged at trial that she suffered some minor strokes, which had somewhat affected her memory. At one point during cross-examination, she confirmed that she received the "Halloween letter" before the police came out and told her to worry about defendant and the letters did not really bother her until the police told her to worry. However, other evidence at trial showed defendants phone conversation with his brother occurred on October 30, Officer Smith contacted Agredano regarding the taped calls on October 31, the "Frank Mendez" letter was postmarked October 31, 2000, and, on November 1, 2000, Agredano reported the letters and turned them over to a police officer, who knew nothing about the conversations from jail and did not discuss them with Agredano.
Furthermore, even assuming arguendo that the court should have instructed regarding attempted criminal threat, the failure to instruct does not warrant reversal in this case. In closing argument, defense counsel maintained that Agredanos fear was not caused by defendants letters but by the police informing her a threat had been made. He also contended that Agredano was nervous when she met with police because she did not want to be seen talking with police and not because of the letters. The jury was properly instructed regarding the element of fear and its duties in evaluating the evidence. The jury resolved discrepancies in Agredanos testimony against defendant. A careful review of the record does not establish a reasonable probability that a failure to instruct on attempted criminal threat affected the outcome. (People v. Breverman, supra, 19 Cal.4th at p. 178.)
C. Criminal Threat Charge
Count Four merely charged defendant with making a criminal threat against Agredano on or about November 1, 2000. Defendant complains that the accusatory pleading "did not describe the nature, content, or means of communication of the threat, except conjunctively in the statutory language" and he never received notice of the specific factual basis of the criminal threat charge. He argues that the criminal threat could have consisted of his statements to Resendez, his statements to his brother Matthew, or the "Frank Mendez" letter and he had to negative three possible theories of conviction. He asserts that, therefore, that trial court had a duty to instruct sua sponte on the factual basis of the criminal threat charge and its failure to do so violated his constitutional due process right to adequate notice of the charge against him.
The People deny that defendant is entitled to a reversal based upon inadequate notice. However, in their opening brief, the People initially suggested that reversal is required on entirely different grounds. We review both defendants arguments and the Peoples initial concession.
"Both the Sixth Amendment of the federal Constitution and the due process guarantees of the state and federal Constitutions require that a criminal defendant receive notice of the charges adequate to give a meaningful opportunity to defend against them. [Citations.] . . . Due process of law requires that an accused be advised of the charges against him so that he has a reasonable opportunity to prepare and present his defense and not be taken by surprise by evidence offered at his trial. (People v. Jones (1990) 51 Cal.3d 294, 317 [270 Cal.Rptr. 611, 792 P.2d 643].)" (People v. Seaton (2001) 26 Cal.4th 598, 640-641.)
An accusatory pleading may state the charge in statutory language. (§ 952 [the charge may be in the words of the enactment describing the offense or declaring the matter to be a public offense, or in any words sufficient to give the accused notice of the offense of which he is accused"].) "When a defendant pleads not guilty, the court lacks jurisdiction to convict him of an offense that is neither charged nor necessarily included in the alleged crime. [Citations.]" (People v. West (1970) 3 Cal.3d 595, 612, 91 Cal. Rptr. 385, 477 P.2d 409.)
Due process does not require that accusatory pleading provide the particular factual circumstances of a charged offense. (See People v. Gurule (2002) 28 Cal.4th 557, 629-630; People v. Jones (1990) 51 Cal.3d 294, 317-318, 270 Cal. Rptr. 611, 792 P.2d 643; People v. Thomas (1987) 43 Cal.3d 818, 829, 239 Cal. Rptr. 307, 740 P.2d 419; see also People v. Gordon (1985) 165 Cal. App. 3d 839, 869-870, 212 Cal. Rptr. 174 (conc. opn. of Sims, J.), disapproved on other points in People v. Frazer (1999) 21 Cal.4th 737, 765, 982 P.2d 180 and People v. Lopez, supra, 19 Cal.4th 282, 292.) Greater detail of the charge is given to defendant by the evidence adduced in the preliminary examination or in grand jury proceedings. (See People v. Gurule, supra, 28 Cal.4th 557, 629-630; see also People v. Diaz (1992) 3 Cal.4th 495, 557, 834 P.2d 1171.) "An indictment or accusation cannot be amended so as to change the offense charged, nor an information so as to charge an offense not shown by the evidence taken at the preliminary examination." (§ 1009; see People v. Pitts (1990) 223 Cal. App. 3d 606, 903-908, 273 Cal. Rptr. 757; see also People v. Burnett (1999) 71 Cal.App.4th 151, 169-171, 173.) On appeal, defendant does not argue or show that the evidence supporting the filing of the indictment, which charged him with making a criminal threat against Agredano, failed to provide notice adequate to permit him to meaningfully defend against the charge.
"In cases prosecuted by indictment, every indicted defendant is entitled to a complete transcript of the proceedings (Pen. Code, § 938.1), and the names of all witnesses examined by the grand jury must be included in the indictment (id., § 995a, subd. (a))." (People v. Jones (1990) 51 Cal.3d 294, 318-319, 270 Cal. Rptr. 611, 792 P.2d 643.)
Defendant further argues that, as a matter of due process, the trial court had a duty to instruct sua sponte regarding the factual basis for defendants conviction, citing the rule that a trial court must instruct the jury on the general principles of law. (See People v. Perez (1992) 2 Cal.4th 1117, 1129, 831 P.2d 1159.) The factual basis of a charge is not a general legal principle. Defendant has not cited any authority holding that a trial court has the duty to inform the jury of the factual basis for a charge where the evidence shows more than one distinct crime.
Instead, defendant cites authority bearing on the requirement of jury unanimity regarding guilt of a specific crime. "Cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. (People v. Castro (1901) 133 Cal. 11, 13, 65 P. 13 . . .; People v. Williams (1901) 133 Cal. 165, 168, 65 P. 323 . . .; CALJIC No. 17.01; but see People v. Jones (1990) 51 Cal.3d 294, 270 Cal. Rptr. 611, 792 P.2d 643 . . . .)" (People v. Russo (2001) 25 Cal.4th 1124, 1132.) However, defendant makes clear he is not complaining about a due process right to a unanimous jury. We find his due process contentions without merit.
We now turn to the Peoples original concessions that (1) reversal was required under People v. Green (1980) 27 Cal.3d 1, 69, 164 Cal. Rptr. 1, 609 P.2d 468, disapproved on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, 226 Cal. Rptr. 112, 718 P.2d 99, footnote 3, since the prosecutor presented a legally incorrect theory of conviction and (2) reversal was required since the trial court failed to give CALJIC No. 17.01, the standard instruction regarding jury unanimity. The People recognized that the evidence of defendants conversation with his brother would not support a criminal threat conviction because defendant did not direct his brother to communicate a threat to Agredano. They indicated there was no way to determine from the record which theory advanced by the prosecution was accepted by the jury. This court requested supplemental briefing regarding the applicability of People v. Morales (2001) 25 Cal.4th 34 rather than Green. In their supplemental briefing, the People retreat from their Green error concession, asserting that reversal is not required under People v. Green, supra, 27 Cal.3d 1.
In this case, the prosecutor argued for conviction on the criminal threat charge based on the "Frank Mendez" letter but also relied on defendants phone conversations with Resendez and his brother Matthew. It is clear from review of the prosecutors closing argument that the prosecutor confused the question of guilt by amalgamating defendants various statements from his phone conversations and the "Frank Mendez" letter and arguing that different elements of the criminal threat charge could be satisfied by different statements. In addition, by arguing that the statements made by defendant to Resendez or to his brother Matthew were effectively delivered to Agredano by the police when they warned Agredano of defendants conversations, the prosecutor incorrectly suggested that police somehow completed the crime.
The prosecutor stated: "This case is pretty much about the writing. And I11 get back to the verbal as well, even though we know the evidence that you heard, there was no direct verbal communication between the defendant and Kiki. Im going to come back to that." In regard to the requirement that the threat be "so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat" ( § 422), the prosecutor stated: "What do we have? We have this Frank Mendez letter. Its classic. It says, I will be getting released from jail pretty soon. . . . [P] Weve got the immediacy. Weve got the specific. Theyre talking about Kiki. Theyve got 187 on there. Theyve got the cut off the head. Its great bodily injury." The prosecutor, however, did indicate to the jury that there were "plenty" of threats, including "the threats dealing with throwing the rat, killing the rat, taking it-throwing it through it through the window" with the words " Die, Kiki, you rat. " Later the prosecutor stated: "Nowhere in this instruction [on criminal threat] . . . will you see or be instructed by the judge . . . [that] the defendant must be in direct communication with the victim. [P] Why is that important? Well, threats can get conveyed through third persons. . . . [P] . . . [Defendants] got these phone calls going, the police overhear that. They tell Kiki. Kiki hears the threats that are being made. [P] Hes trying to get people out there to hurt her, hurt her son, a lot of things. These are real threats. These are verbal, and its getting communicated through a third person. . . . [P] . . . So in this case you can consider both the threats that are being made over the phone and communicated to her by a third person, the police, those put her in fear. [P] We can even put those aside and you can also look at the letters she directly received for that element, and all those elements are here."
There is no question that the prosecutor advanced a legally incorrect theory. If a criminal threat had actually been made upon his advice, encouragement or instigation, defendant might have been considered guilty on a theory of aiding and abetting. ( § 31; see People v. Beeman (1984) 35 Cal.3d 547, 560, 199 Cal. Rptr. 60, 674 P.2d 1318.) However, the police were not making a criminal threat when they informed Agredano of the potential for violence against her instigated by defendant.
By statutory definition, "principals" include "all persons concerned in the commission of a crime, whether it be felony or misdemeanor, and whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission . . . ." (§ 31, italics added.) An aider and abettor must "act with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. [Citations.]" (People v. Beeman , supra, 35 Cal.3d at p. 560.) Section 31 "is intended to apply criminal liability as a principal to those who are not present at the commission of an offense if, with the requisite intent, they have assisted the perpetrator. [Citation.]" (People v. Morante (1999) 20 Cal.4th 403, 433, 975 P.2d 1071.) Although defendant in his telephone conversations importuned others to do certain acts against Agredano, he was not charged with violating section 653f, subdivision (a) (soliciting another to dissuade a witness from testifying).
Although we recognize the prosecutors misstatements, we nevertheless conclude that Green is distinguishable. In People v. Green, supra, 27 Cal.3d 1, the California Supreme Court announced the following rule: "When the prosecution presents its case to the jury on alternate theories, some of which are legally correct and others legally incorrect, and the reviewing court cannot determine from the record on which theory the ensuing general verdict of guilt rested, the conviction cannot stand." (Id. at p. 69.) Green had moved the victim three times and the California Supreme Court determined that two of the three possible segments of asportation were legally insufficient to constitute simple kidnapping. (Id. at pp. 63- 67.) As to the first segment, the prosecutor incorrectly argued, and the court incorrectly instructed, that asportation by fraud alone was sufficient to constitute kidnapping. (Id. at pp. 63-64.) As to the third segment of asportation, the evidence showed the victim was moved only 90 feet, which the Supreme Court found was insufficient. (Id. at pp. 65-67.)
In Griffin v. United States (1991) 502 U.S. 46, 116 L. Ed. 2d 371, 112 S. Ct. 466, the U.S. Supreme Court refused to set aside a general verdict on a multiple-object conspiracy charge because one of the objects was not supported by sufficient evidence. The court stated: "Jurors are not generally equipped to determine whether a particular theory of conviction submitted to them is contrary to law-whether, for example, the action in question is protected by the Constitution, is time barred, or fails to come within the statutory definition of the crime. When, therefore, jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error. Quite the opposite is true, however, when they have been left the option of relying upon a factually inadequate theory since jurors are well equipped to analyze the evidence [citation]." (Id. at p. 59.)
In People v. Guiton (1993) 4 Cal.4th 1116, 847 P.2d 45, the Supreme Court concluded that the rule of Green survived Griffin v. United States, supra, 502 U.S. 46 as follows: "If the inadequacy of proof is purely factual, of a kind the jury is fully equipped to detect, reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground. But if the inadequacy is legal, not merely factual, that is, when the facts do not state a crime under the applicable statute, as in Green, the Green rule requiring reversal applies, absent a basis in the record to find that the verdict was actually based on a valid ground." (People v. Guiton, supra, 4 Cal.4th at p. 1129, fn. omitted.)
However, the Supreme Court made clear that reversal is not always appropriate under Green. (People v. Guiton, supra, 4 Cal.4th at p. 1129.) The court left open for later decision the exact circumstances under which Green error would be found harmless. (Id at pp. 1130-1131.)
In People v. Morales (2001) 25 Cal.4th 34, the California Supreme Court rejected a defendants contention that reversal was compelled under Green because the prosecutor had presented the jury with an incorrect theory of guilt, "namely, that even if the jurors, or some of them, did not believe he possessed the vial found in the van, they could still find him guilty of possessing PCP because he could not have been under the influence of the drug without first possessing it in some form." (People v. Morales, supra, 25 Cal.4th at p. 45.) The California Supreme Court observed: "Guiton and Green are unlike this case in that in each of them, the court presented the states case to the jury on an erroneous legal theory or theories." (People v. Morales , supra, 25 Cal.4th at p. 43, latter italics added.) The Supreme Court pointed out that the trial court properly stated the law and "the instructions themselves did not permit a conviction solely on evidence of intoxication . . . ." (Id. at pp. 47-48.)
The court reasoned that "the prosecutor arguably misstated some law, but such an error would merely amount to prosecutorial misconduct [citation] during argument, rather than trial and resolution of the case on an improper legal basis." (Id. at p. 43.) The court further remarked: "When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the courts attention by a timely objection. Otherwise no claim is preserved for appeal. [Citation.]" (People v. Morales, supra, 25 Cal.4th at pp. 43-44.)
In addition, the court stated: "We presume that the jury relied on the instructions, not the arguments, in convicting defendant. It should be noted that the jury, of course, could totally disregard all the arguments of counsel. (Green, supra, 27 Cal.3d at p. 76 (conc. & dis. opn. of Richardson, J.).) Though we have focused on the prosecutors closing arguments, we do not do so at the expense of our presumption that the jury treated the courts instructions as statements of law, and the prosecutors comments as words spoken by an advocate in an attempt to persuade. (People v. Sanchez (1995) 12 Cal.4th 1, 70, 906 P.2d 1129 . . . .) The trial court emphasized this rule when, as stated, it instructed the jury to follow its instructions and to exalt them over the parties arguments and statements." (People v. Morales, supra, 25 Cal.4th at p. 47.) The court concluded that Green error would not necessarily arise from improper prosecutorial remarks. It stated: "Properly understood, Green reasons that in cases suffering from insufficient evidence, deficient instructions, or other errors made in presenting evidence or giving instructions, ill-advised remarks by the prosecutor may compound the trials defects." (Id. at p. 48.)
We think this case is more like People v. Morales, supra, 25 Cal.4th 34 than Green. Here, the court correctly defined the offense of criminal threat. The instructional definition referred to "the statement" and "the threatening statement" and we believe it made clear that all elements were in reference to a single threatening statement. Furthermore, the instruction explicitly stated that an element of the offense was that the threatening statement on its face and "under [the] circumstances in which it was made was so equivocal [sic ], unconditional, immediate and specific as to convey to the person threatened a gravity of purpose, and an immediate prospect of execution of the threat . . . ." (Italics added.) None of the statements made by defendant during either phone conversation satisfied this immediacy element and, therefore, the jury could not have convicted defendant based upon the polices subsequent warning to Agredano regarding those previous phone conversations.
The court did not misspeak when it initially stated the statutory definition of criminal threat. The prosecutor also discussed the requirement that the threatening statement be "unequivocal."
The court also directed the jury: "You must accept and follow the law as I state it to you, regardless of whether you agree with the law. If anything concerning the law said by the attorneys in their arguments or at any other time during trial conflicts with the law you must follow my instructions." The jury was also told that "statements made by the attorneys during the trial are not evidence."
The properly instructed jury was fully capable of recognizing that the evidence of each telephone conversation was factually inadequate to support a guilty verdict on the criminal threat charge. This is not a situation in which the courts instructions left the jury the option of relying upon a legally inadequate theory.
The only evidence sufficient to support the criminal threat charge was the "Frank Mendez" letter. Consequently, the court was not required to instruct sua sponte regarding the necessity of jury unanimity. " A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged. [Citations.]" (People v. Beardslee (1991) 53 Cal.3d 68, 93, 279 Cal. Rptr. 276, 806 P.2d 1311.)
Any remaining claim of prosecutorial misconduct was waived by the failure to raise it below. (People v. Morales, supra, 25 Cal.4th 34, 44.) Such contentions are not cognizable on appeal because an objection could have cured any harm. (People v. Green , supra, 27 Cal.3d 1, 34-35.)
D. Section 666.5 Allegations
The accusatory pleadings alleged, in conjunction with the charged violations of Vehicle Code section 10851, subdivision (a), that defendant had suffered a prior felony conviction of violating Vehicle Code section 10851 within the meaning of section 666.5. Before trial, defense counsel had requested that "the offense [in counts one and two] simply be placed to the jury as a simple 10851" and "if [defendant] is, in fact, convicted of the 10851, then the allegation of the prior 10851 could be handled with the other priors." At trial, the jury was asked, as to counts one and two, solely whether defendant was guilty of a violation of section 10851, subdivision (a).
Following jury trial on the substantive offenses, defense counsel acknowledged that defendant was prepared to admit "the prior allegations." The court inquired whether defendant understood that he would be admitting "a strike prior," "two prison priors," and "a serious or violent felony." The court then proceeded to accept defendants admissions of the prior burglary conviction within the meaning of Three Strikes law (§§ 667, subds. (b)-(i), 1170.12) and within the meaning of section 667, subdivision (a), and his admission of two prior prison terms ( § 667.5, subd. (b)). The section 666.5 enhancement allegations were not raised or addressed.
The probation report indicated that defendant had been charged with two counts of violating Vehicle Code section 10851 with a prior conviction and had been convicted of both counts. The court sentenced defendant to a midterm of six years on count one, one of the two violations of Vehicle Code section 10851, and two years on count two, the other violation of Vehicle Code section 10851. No mention was made of the section 666.5 allegations. Nevertheless, the abstract of judgment shows that defendant was convicted of two counts of "VC 10851(A)/666.5."
A defendant may be sentenced to a prison term of 16 months, or two or three years for a first time violation of Vehicle Code section 10851, subdivision (a). (Veh. Code, § 10851, subd. (a), § 18.) A defendant may be sentenced to a prison term of two, three, or four years for any subsequent violation of Vehicle Code section 10851, subdivision (a). (Veh. Code, § 10851, subds. (a) and (e), § 666.5, subd. (a).) "The existence of any fact which would bring a person under subdivision (a) [of section 666.5] shall be alleged in the information or indictment and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by plea of guilty or nolo contendere or by trial by the court sitting without a jury." ( § 666.5, subd. (c).) If a defendant convicted of violating Vehicle Code section 10851 has one prior felony conviction within the meaning of Three Strikes law, the determinate term is twice the term otherwise provided. ( §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).)
Defendant contends, and the People concede, that lower court erred by imposing sentence as if the section 666.5 penalty allegations of a prior conviction of Vehicle Code section 10851 had been found true when in fact those allegations had not been tried and defendant had not admitted the allegations. Defendant argues that the failure to make findings was an implied acquittal and the trial court could not properly sentence him pursuant to section 666.5. The People maintain that the proper remedy is to remand for further plea proceedings.
Defendant claims an "unbroken line of authority holds that when the trier of fact has not made an express finding, the result is an implied acquittal" and cites a number of cases. In People v. Eppinger (1895) 109 Cal. 294, 41 P. 1037, the jury returned a general verdict finding defendant guilty as charged but failed to specifically find a prior conviction allegation true or not true. The Supreme Court concluded that the verdict had to be treated as a finding in favor of defendant on the alleged prior conviction. (Id. at p. 298.)
In People v. Garcia (1970) 4 Cal. App. 3d 904, 84 Cal. Rptr. 624, two crimes were charged and three prior felony convictions were alleged. Following a bench trial, the court found defendant Garcia guilty of the two counts and found two of the three prior felony conviction allegations true but failed to make any finding on one allegation. (Id . at p. 907.) In a footnote, the appellate court observed: "This is tantamount to a finding that the allegation is not true. [Citation.]" (Id. at p. 907, fn. 2; cf. People v. Bright (1970) 4 Cal. App. 3d 926, 928, 84 Cal. Rptr. 691 [similar observation]; People v. Huffman (1967) 248 Cal. App. 2d 260, 261, 56 Cal. Rptr. 255 [courts failure, following a bench trial, to make a finding on the prior conviction allegation "operated as an acquittal" and meant that "the present conviction must be treated as a conviction upon a first offense"]; but cf. People v. Chambers (2002) 104 Cal.App.4th 1047, 1051 [following a court trial, "the trial court impliedly-but sufficiently-rendered a finding of true as to the firearm use allegation when it imposed a 10-year enhancement for the underlying use of a firearm"].)
In People v. Gutierrez (1993) 14 Cal.App.4th 1425 the People contended that "the trial court erred in staying sentences on appellants prior felony conviction enhancements." (Id . at p. 1429.) The defendants had "waived jury regarding their priors, bifurcated them, and stipulated the trial court could determine their truth at the probation hearing by considering the probation report and any other submitted evidence." (Id . at p. 1440.) The probation and sentencing hearing was held but the record did not reflect that the trial court made any finding on the enhancement allegations. (Ibid.) On the record before it, the appellate court was unwilling "to equate the trial courts acquiescence in his clerks suggestion ( you are going to stay the priors . . .) as an implied judicial finding that the priors had been proved." (Ibid.) Consequently, the appellate court rejected the Peoples argument. (Ibid .)
The Supreme Court subsequently cited People v. Gutierrez, supra, 14 Cal.App.4th 1425, for the proposition that "defendants may not be sentenced for prior-felony- conviction enhancements in the absence of findings on prior-conviction allegations by the trier of fact." (People v. Paul (1998) 18 Cal.4th 698, 709, 958 P.2d 412.)
This line of cases, however, is distinguishable since the prior conviction allegations in this case were not considered by a trier of fact. Here, the proceedings were bifurcated and there was no trial on the section 666.5 allegations in which the court or jury, sitting as the fact-finder, heard evidence but failed to make findings that the allegations were true.
Defendant also cites In re Candelario (1970) 3 Cal.3d 702, 91 Cal. Rptr. 497, 477 P.2d 729, a habeas corpus proceeding, in which the petitioner challenged the trial courts post-judgment amendment of an abstract of judgment to add a sentence enhancement based upon the prior felony conviction that had been admitted by Candelario. (Id. at pp. 704- 705.) Although the trial court had made numerous references to the 1953 conviction at the time of sentencing, the minute order of the judgment made no reference to the prior conviction. (Id. at p. 706.) The Supreme Court concluded: "Reference to the prior conviction must be included in the pronouncement of judgment for if the record is silent in that regard, in the absence of evidence to the contrary, it may be inferred that the omission was an act of leniency by the trial court. In such circumstances the silence operates as a finding that the prior conviction was not true. [Fn. omitted.] (People v. Huffman (1967) 248 Cal. App. 2d 260, 261 .) Even when, as in the present case, the defendant admits the prior conviction before trial, the court is not compelled to make a finding on the charge. (People v. Superior Court (1968) 69 Cal.2d 491, 501 [72 Cal.Rptr. 330, 446 P.2d 138].) Being silent upon the matter of a prior conviction, the judgment must be construed as one imposing a sentence for a first offense only. [Fn. omitted.] (People v. Noland (1939) 30 Cal. App. 2d 386, 391 .) It cannot be presumed in every case, therefore, that failure of the court to include the prior conviction in the judgment is inadvertent clerical error." (In re Candelario , supra, 3 Cal.3d at pp. 706-707, fns. omitted; cf. People v. Mesa (1975) 14 Cal.3d 466, 470-471, 121 Cal. Rptr. 473, 535 P.2d 337 [applying In re Candelario on appeal].)
In re Candelario is distinguishable in that defendant Iniguez had not admitted the prior conviction allegations. Furthermore, the trial court was not silent upon the matter of defendants prior conviction of violating Vehicle Code section 10851 in that he sentenced defendant pursuant to section 666.5. Therefore, it would be illogical to imply judicial leniency from the courts conduct.
In support of their position, the People cite People v. Bryant (1992) 10 Cal.App.4th 1584. In People v. Bryant, the defendant did not effectively admit enhancement allegations when he changed his plea to no contest to the substantive offenses although apparently that had been the intent. (Id . at pp. 1593-1594.) The appellate court concluded that the trial courts findings that Bryant had admitted those allegations could not stand. (Id. at pp. 1595-1596.) However, it determined that the proper remedy was to remand for further plea proceedings: "Since the error consisted of the trial courts failure to take admissions to the section 208, subdivision (d) and section 667.8, subdivision (a) allegations, findings on those allegations should be reversed and the matter remanded for further plea proceedings as to those allegations only." (People v. Bryant, supra, 10 Cal.App.4th at p. 1598.)
The appellate court determined that such a remand was not prohibited by the constitutional protection against double jeopardy: "The double jeopardy clause applies only if there has been some event, such as acquittal, which terminated the original jeopardy. (Richardson v. United States (1984) 468 U.S. 317, 325, 82 L. Ed. 2d 242, 104 S. Ct. 3081 . . . .) Here, there has been no such event with regard to the section 208, subdivision (d) and section 667.8, subdivision (a) allegations, nor would permitting further proceedings as to those allegations, under the circumstances of this case, allow the prosecutor a second bite of the apple. " (People v. Bryant, supra, 10 Cal.App.4th at p. 1597; see Monge v. California (1998) 524 U.S. 721, 724, 728-729, 734, 141 L. Ed. 2d 615, 118 S. Ct. 2246 [Double Jeopardy Clause does not extend to noncapital sentencing proceedings and, therefore, does not preclude retrial on a prior conviction allegation].)
The California Supreme Court subsequently cited Bryant: "[A] penalty provision prescribes an added penalty to be imposed when the offense is committed under specified circumstances. . . . The jury does not decide the truth of the penalty allegation until it first has reached a verdict on the substantive offense charged. [Citation.] Accordingly, a defendants conviction of the underlying substantive offense does not (on double jeopardy grounds) bar further proceedings, such as retrial, on a penalty allegation. (See People v. Bryant, supra, 10 Cal.App.4th at pp. 1597-1598.) Thus, the circumstance that the jury has returned a verdict on the underlying offense, but is unable to make a finding on the penalty allegation, does not constitute an acquittal of (or otherwise bar retrial of) the penalty allegation on the ground of double jeopardy. [Citations.]" (People v. Bright (1996) 12 Cal.4th 652, 661-662, 909 P.2d 1354.)
We conclude that the situation in this case is most analogous to People v. Bryant, supra, 10 Cal.App.4th 1584. Therefore, we will remand the matter for further proceedings and resentencing.
E. Section 1170.15
Defendant asserts that the trial court erred by concluding that Penal Code section 1170.15 mandated full consecutive sentences on counts three and five since the prosecutor made no election, and the jury made no findings, of the factual basis for count three, four, or five and, therefore, the trial court was not mandated to sentence consecutively under Three Strikes law. (See §§ 667, subd. (c)(6); 1170.12, subd. (a)(6).) The People concede that the courts comments "appear to indicate that it was under the mistaken belief that Penal Code section 1170.15 requires consecutive sentencing." They contend that, even assuming defendant is correct, the matter need only be remanded for resentencing on count five because the record clearly indicates that the court would have imposed a consecutive sentence on count three in any event.
Section 667, subdivision (c)(6), provides: "(6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e)." Section 1170.12, subdivision (a)(6), likewise states: "If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to this section." The People do not argue that consecutive sentencing was mandatory under these provisions.
The probation report stated: "Consecutive sentencing is recommended given that the defendant was on parole at the time the offenses occurred, and that he possesses a prior criminal history. Pursuant to Section 1170.15 of the Penal Code, full term consecutive sentencing is recommended for Counts Three and Five. Additionally, there is a five-year Serious Felony Prior pursuant to Section 667(a) of the Penal Code which must be imposed." The probation report did not suggest that section 1170.15 mandated consecutive sentencing.
At the time of sentencing, the trial court stated for the record that it understood the parties were going to submit the matter based on the in chambers discussions and that it had an opportunity to review the probation report. The court stated it was prepared to impose sentence taking into consideration "the probation report and discussions in chambers with respect to the mandatory requirements with respect to strike sentencing and consecutive sentencing." The court then proceeded to sentence defendant on counts one and two and indicated that it was selecting the midterm of six years on count three. It then stated: "With respect to count 3, as it is a separate count all together [sic], with a separate offense, and the requirement of 1170.15 requiring consecutive mandatory sentencing, the Court is going to select the midterm of six years and run it consecutively." The court imposed a concurrent term of four years on count four and in regard to count five stated: "And with respect to count 5, the Court will select the midterm of six years consecutive thereto."
Section 1170.15 provides in pertinent part: "Notwithstanding subdivision (a) of Section 1170.1 which provides for the imposition of a subordinate term for a consecutive offense of one-third of the middle term of imprisonment, if a person is convicted of a felony, and of an additional felony that is a violation of Section 136.1 . . . and that was committed against the victim of, or a witness or potential witness with respect to, or a person who was about to give material information pertaining to, the first felony . . ., the subordinate term for each consecutive offense that is a felony described in this section shall consist of the full middle term of imprisonment for the felony for which a consecutive term of imprisonment is imposed, and shall include the full term prescribed for any enhancements imposed for being armed with or using a dangerous or deadly weapon or a firearm, or for inflicting great bodily injury." Thus, when the sentence on a violation of section 136.1 is ordered to run consecutively to the term imposed on the felony to which the dissuading related, section 1170.15 mandates imposition of a full middle term, notwithstanding the one-third of the middle term limitation on subordinate counts under section 1170.1, subdivision (a).
On the record before us, it appears that the court misconstrued its authority under section 1170.15 and it is not apparent that it would have imposed a consecutive term on count three regardless. However, we note that, if the court, on remand, selects consecutive terms on counts three and five, the full term requirement of section 1170.15 is indeed mandatory.
The judgment is reversed and the matter is remanded for further proceedings consistent with this opinion and resentencing.
WE CONCUR: Rushing, P. J., Mihara, J.