Opinion
NOT TO BE PUBLISHED
Superior Court County (Super. Ct. No. CR34092) of Ventura James P. Cloninger, Judge
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, Supervising Deputy Attorney General, J. Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Frederick L. Jackson appeals from the judgment entered after conviction by a jury of the first degree murder of Genoveva Gonzales. (Pen. Code, §§ 187, subd. (a), 189.) The jury found true an allegation that a principal in the commission of the offense had been armed with a firearm. (§ 12022, subd. (a)(1).) The jury found not true a special circumstances allegation that the murder had been committed during the commission of rape. (§ 190.2, subd. (a)(17).) Appellant was sentenced to prison for 26 years to life.
All statutory references are to the Penal Code.
This conviction followed a retrial of the murder charge. Appellant was originally convicted of first degree murder and rape. (§ 261, subd. (a)(2).) The jury found true an arming enhancement (§ 12022, subd. (a)(1)) and a special circumstances allegation that the murder had been committed during the commission of rape. The jury acquitted appellant of kidnapping Gonzales. Appellant was sentenced to life without the possibility of parole plus a consecutive six-year term for the rape conviction. In an unpublished opinion, we modified the judgment to stay the sentence on the rape conviction and affirmed the judgment as modified. (People v. Jackson (March 4, 1997, B097070).)
We stayed the sentence on the rape conviction because the first degree murder conviction was based on a felony-murder theory, and the underlying felony was rape. (See People v. Boyd (1990) 222 Cal.App.3d 541, 575-576 [where defendant has been found guilty of first degree murder based on felony-murder theory, section 654 requires that punishment for the underlying felony be stayed].)
On March 26, 2004, the Ninth Circuit Court of Appeals granted a writ of habeas corpus vacating the first degree murder conviction. The Ninth Circuit concluded that evidence had been "admitted against [appellant] in patent violation of Miranda v. Arizona [(1966) 384 U.S. 436], and [appellant had] suffered substantial prejudice as a result." (Jackson v. Giurbino (9th Cir. 2004) 364 F.3d 1002, 1011 (Jackson).) The Ninth Circuit left undisturbed appellant's rape conviction. (Id., at pp. 1011-1012.)
Appellant contends that the trial court erroneously (1) took judicial notice of the rape conviction, (2) precluded him from presenting evidence of the kidnapping acquittal, (3) denied his motion for a mistrial, and (4) imposed a parole revocation restitution fine pursuant to section 1202.45. Respondent correctly concedes that the imposition of the fine violated the constitutional ban against ex post facto laws. We modify the judgment to strike the fine and affirm the judgment as modified.
Facts
On January 26, 1992, Gonzales's body was found in a drainage ditch along Arnold Road outside of the City of Oxnard. She had been shot three times in the head. Sergeant Michael Barnes, who saw the body, described the victim as "a female Hispanic . . . about 30 years old."
During the evening of January 25, 1992, Bobby Rollins was with Christopher Sattiewhite and appellant. Rollins saw appellant "having sex" with a "Mexican" woman in the back seat of a Cadillac. The woman, who was speaking Spanish, was angry. She spat in appellant's face, and he hit her.
Later that same evening, Rollins met Sattiewhite and appellant near the "dead-end" of Arnold Road outside of the City of Oxnard. Rollins saw appellant push the Mexican woman out of the back seat of the Cadillac into Sattiewhite's arms. The woman was unconscious. While appellant remained in the Cadillac, Sattiewhite moved the woman into a ditch. Rollins heard three shots coming from the ditch. Sattiewhite "[c]ame up out of the ditch," entered the Cadillac, and drove away.
Rollins, who was driving a Buick, followed the Cadillac to an alley by an apartment complex. At this location, he saw Sattiewhite wipe blood off of a gun. Rollins told Sattiewhite that he had "fucked up." Appellant said that Sattiewhite "had did right." Appellant was "pumping [Sattiewhite] up, like it was good."
A "couple of days" after the shooting, appellant told Rollins that he "had fucked up" because he had ejaculated inside the Mexican woman. Appellant said that he had used Thunderbird wine to wash out the ejaculate.
Sergeant Barnes interviewed Rollins. Rollins said that, after the shooting, he had asked appellant why he "did this." Appellant replied, "because my name was mentioned." Appellant said that "he didn't want to go to jail." Rollins also told Barnes that, on the night of the shooting, he had seen a gun in appellant's pants pocket.
Sergeant Barnes also interviewed appellant. Appellant told Barnes that he had had sex with Gonzales "a few times" in exchange for drugs. Appellant said that, during the nighttime one or two days before Gonzales's body was found, he had had sex with her in "the little laundry stalls" of an apartment complex. After the sexual encounter, appellant and Gonzales had parted company.
Tiffany Pitts was appellant's girlfriend. Appellant, Sattiewhite, and Rollins visited Pitts at her house during the evening of January 25, 1992. attiewhite had blood on his sleeve. Appellant told Pitts that he had seen Sattiewhite shoot a "Mexican lady" three times in the head.
Adrienne Nixon was Sattiewhite's girlfriend. In January 1992 Nixon received a telephone call from Sattiewhite. He "told [her] not to tell anybody, but he had just shot a lady."
Judicial Notice of Rape Conviction
At the original trial, appellant was convicted of raping the victim. The Ninth Circuit did not vacate this conviction. (Jackson, supra, 364 F.3d at pp. 1011-1012.) Appellant contends that, during the retrial, the court erroneously took judicial notice of the rape conviction. Appellant waived this contention because his counsel told the court that he did not object to the request for judicial notice. (People v. Samuels (2005) 36 Cal.4th 96, 113.)
"[The Prosecutor]: Your Honor, at this time we would request the Court to take judicial notice of the items discussed previously. [¶] The Court: All right. And I take it based on our earlier discussion there's no objection? [Defense Counsel]: That's correct, your Honor. [¶] The Court: All right. Then ladies and gentlemen, notice is taken that on the 19th of April 1995 defendant Fred Lee Jackson was convicted of forcible rape of victim Genoveva Gonzales in violation of Penal Code section 261(a)(2), by a verdict of guilty following a jury trial, said rape having occurred on or about January 25, 1992."
Moreover, pursuant to the doctrine of invited error, appellant is estopped from asserting error because his counsel urged the trial court to take judicial notice of the rape conviction. (People v. Coffman (2004) 34 Cal.4th 1, 49.) Counsel stated: "I think the court has to instruct that [appellant] has been convicted of rape . . . ." "[I]f the jury was told, yes, he is guilty of rape, so you can't find now that it was really consent, and I agree, I mean that's the fact, then they should also be told but he was found not guilty of the kidnapping."
In any event, the trial court did not err. Because the rape conviction was affirmed on appeal and was not vacated by the Ninth Circuit, "it [was] conclusive on retrial of the murder count and the prosecution . . . need[ed] only [to] prove the fact of the killing in its perpetration in order to obtain a new conviction of first degree murder." (People v. Chadd (1981) 28 Cal.3d 739, 755; accord, People v. Massie (1998) 19 Cal.4th 550, 572; see also People v. Ford (1966) 65 Cal.2d 41, 50-51, overruled on another ground in People v. Satchell (1971) 6 Cal.3d 28, 35.)
Acquittal of Kidnapping
At the original trial, appellant was acquitted of kidnapping the victim. Appellant contends that the trial court committed reversible error in precluding him from presenting evidence of this acquittal. He concedes that there is no actual preclusion ruling in the record. But appellant argues that "the only fair reading of the record is that . . . the court ruled that the . . . defense was barred from putting on evidence of the kidnap[p]ing acquittal." Such a ruling, appellant maintains, may reasonably be inferred from the following facts: (1) defense counsel requested that the jury be instructed of the kidnapping acquittal; (2) the prosecutor opposed the instruction; (3) the trial court did not give the instruction; and (4) defense counsel did not attempt to present evidence of the acquittal. Appellant asserts: "No attempt was made because such an attempt would have flown in the face of the court's ruling." "Simply because no court reporter took down the magic phrase, 'I rule...,' it does not mean the issues were not fully addressed or there was a failure to make a ruling."
We disagree. It was incumbent upon appellant to seek an actual ruling on the record. "We follow the long-established rule that where a court, through inadvertence or neglect, neither rules nor reserves its ruling, the party who objected or made the motion must make an effort to have the court actually rule, and that when the point is not pressed and is forgotten the party will be deemed to have waived or abandoned the point and may not raise the issue on appeal. [Citations.] [Appellant] is thus precluded from obtaining appellate review of these issues." (People v. Brewer (2000) 81 Cal.App.4th 442, 461-462; see also People v. Rodgers (1976) 54 Cal.App.3d 508, 516-517; People v. Obie (1974) 41 Cal.App.3d 744, 750, overruled on another ground in People v. Rollo (1977) 20 Cal.3d 109, 120, fn. 4.)
Even if the trial court had precluded appellant from presenting evidence of the kidnapping acquittal, the court would not have erred. "[A] properly authenticated acquittal is admissible to rebut prosecution evidence of guilt of another crime." (People v. Griffin (1967) 66 Cal.2d 459, 466.) Here the prosecution did not present evidence that appellant was guilty of kidnapping. It merely presented evidence concerning the circumstances surrounding the killing.
Motion for Mistrial
Appellant contends that the trial court abused its discretion in not granting his motion for a mistrial. "A motion for mistrial presupposes error plus incurable prejudice." (People v. Gatlin (1989) 209 Cal.App.3d 31, 38.) " 'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' [Citation.] 'A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.' [Citation.]" (People v. Williams (2006) 40 Cal.4th 287, 323.)
The motion for a mistrial was made after the jury had heard an excerpt of a recorded police interview in which appellant had stated that he "got arrested there at the parole office." The transcript of the interview had been redacted to remove the words, "there at the parole office," but these words had unintentionally not been deleted from the recording played for the jury. The trial court concluded that these words "would convey to a juror that [appellant had been] on parole." The court offered to instruct the jury to disregard the reference to the "parole office." Appellant's counsel refused the offer because he did not "want to underline" that appellant had been on parole.
A similar issue arose during the original trial. A reference to parole had been excised from the recording of the interview, but it remained in the transcript provided to the jury. The trial court admonished the jury to disregard the error in the transcript and denied appellant's motion for a mistrial.
On appeal, we upheld the trial court's ruling. We reasoned: "The reference to parole was an incidental part of the transcript; the transcript was over 100 pages in length. Pursuant to appellant's request, the court instructed the jury to ignore the transcript error. We presume that it followed the court's instructions. [Citation.]" (People v. Jackson, supra, slip opinion at pp. 12-13.)
Our reasoning in the original appeal applies here as well. The reference to the "parole office" was an incidental part of the transcript of appellant's police interviews, which were approximately 89 pages in length. Appellant refused the trial court's offer to instruct the jury to disregard the words in question. We assume that, if the trial court had given such an instruction, the jury would have followed it. (People v. Tafoya (2007) 42 Cal.4th 147, 161, fn. 4; see also People v. Price (1991) 1 Cal.4th 324, 430-431 [prejudice from evidence that defendant had been in prison for 11 years "was not incurable by admonition or instruction"].) Thus, we conclude that the trial court did not abuse its discretion in denying the motion for a mistrial.
Parole Revocation Restitution Fine
Pursuant to section 1202.45, the trial court imposed a parole revocation restitution fine of $10,000. Respondent concedes that, because appellant committed his crimes before the 1995 enactment of section 1202.45 (Stats. 1995, c. 313, § 6), the imposition of this fine was prohibited by the constitutional ban against ex post facto laws. We accept respondent's concession and strike the fine. (People v. Callejas (2000) 85 Cal.App.4th 667, 678 ["applying section 1202.45 to Callejas, whose underlying crime preceded the enactment of that statute, would violate ex post facto principles"].)
Disposition
The judgment is modified by striking the parole revocation restitution fine imposed pursuant to section 1202.45. The trial court is directed to amend the abstract of judgment to reflect this modification and to forward a certified copy of the
amended abstract to the Department of Corrections and Rehabilitation. As so modified, the judgment is affirmed.
We concur: GILBERT, P.J., PERREN, J.