Opinion
A156577
03-05-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN ANTHONY VELLA, Defendant and Appellant.
ORDER MODIFYING OPINION; AND DENYING REQUEST FOR REHEARING
[NO CHANGE IN JUDGMENT] THE COURT :
Pollak, P.J., Tucher, J., and Brown, J. participated in the decision.
It is ordered that the opinion filed March 5, 2020, be modified as follows:
1. On page 9 of the opinion, in the ninth line of the first full paragraph, which reads "of the nature of that issue—that is, the prior conviction allegation. After," add a new footnote after "allegation" with the following:
2 In a petition for rehearing, Vella argues that the discussion of bifurcating trial on the felon-in-possession prior has no bearing on the separate issue of his right to a jury
determination of the strike prior. But in this case it is the same voluntary manslaughter conviction that is the predicate for both the felon-in-possession charge and the strike allegation, so the Court's mention of a "bifurcated issue" was an unambiguous reference to whether Vella had in fact sustained that prior conviction.
2. With the insertion of this footnote, which will be footnote number two, all subsequent footnotes will be renumbered as three through five, respectively.
These modifications do not effect a change in the judgment. Appellant's petition for rehearing is DENIED. Dated: __________
/s/_________
POLLAK, P. J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Humboldt County Super. Ct. No. CR1703954)
Defendant John Anthony Vella appeals a judgment entered upon a jury verdict finding him guilty of possession of firearms and ammunition by a felon. He contends that the trial court erroneously admitted hearsay evidence, he was not advised of the consequences of admitting a prior conviction, and the court improperly used the same factor in imposing aggravated and consecutive terms. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A police officer for the City of Eureka, Mychal Huynh, received a call for service on September 17, 2017, with a report of a "DUI driver." He saw a pickup truck that matched the description of the vehicle and saw its tires cross over the center line of the road, indicating to him the driver might be under the influence. Huynh carried out a traffic stop. The truck pulled into a parking lot and came to a stop, the front passenger door opened, and a man got out of the truck and fled.
Defendant was driving the truck. Huynh told defendant to get out of the truck, then searched it; the parties stipulated the search of the truck was lawful. Inside the glove box he found a box of .44 caliber ammunition. On the truck's floor, between the driver and passenger seats, he found a zipped black bag containing a smaller red bag with two straps tied together; within the red bag was a loaded semiautomatic handgun and additional ammunition. The larger black bag also contained two bottles of prescription medication with defendant's name on them. In the backseat area of the pickup truck, Huynh pulled the seat's backrest forward and found the door for a compartment behind the back seat of the vehicle on the driver's side. He opened it and found a loaded .44 caliber magnum revolver wrapped in a shirt. Huynh searched the truck's center console and found a current vehicle registration card indicating the truck was registered to defendant. He took photographs of the registration card, which were admitted into evidence.
Huynh later determined that neither gun was registered to defendant; the semiautomatic weapon had no record of being registered; the revolver was registered to someone; but Huynh was unable to find contact information for the owner.
The jury found defendant guilty of two counts of possession of a firearm by a felon (Pen. Code, § 29800, subd. (a)(1); counts 1 and 2) and one count of unlawful possession of ammunition (Pen. Code, § 30305, subd. (a)(1); count 3). Defendant admitted an allegation that he previously suffered a conviction for voluntary manslaughter, a "strike."
All undesignated statutory references are to the Penal Code.
At the sentencing hearing, the trial court denied defendant's Romero request to dismiss the strike allegation. (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) It sentenced him to the upper term of three years for count 1 and a consecutive term of eight months for count 2, doubled for the strike, for a total term of seven years four months. The court imposed and stayed sentence on count 3.
DISCUSSION
I. Admission of Photographs of Vehicle Registration
Before trial, the prosecutor moved in limine to admit photographs of the vehicle registration card. The prosecutor told the court he did not have the original document, which he asserted was probably in defendant's possession, and that he had been unable to get a certified copy from the Department of Motor Vehicles. Over defendant's objection, the trial court granted the motion, noting the photographs might have "circumstantial weight if not direct weight."
Defendant contends the photographs were inadmissible hearsay, which did not fall within the official records exception to the rule against hearsay; this exception applies to writings made by a public employee, at or near the time of an act condition, or event, where the sources of information and manner of preparation indicate their trustworthiness. (Evid. Code, § 1280.) He also contends the photographs were not properly authenticated. (Evid. Code, § 1401.)
A trial court has "broad discretion to determine whether a party has established the foundational requirements for a hearsay exception [citation] and '[a] ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto . . . .' " (People v. DeHoyos (2013) 57 Cal.4th 79, 132.) We review the trial court's conclusions regarding foundational facts for substantial evidence, and its ultimate ruling for abuse of discretion, reversing "only if ' "the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." ' " (Ibid.) When a document's authenticity is challenged, "what is necessary is a prima facie case. 'As long as the evidence would support a finding of authenticity, the writing is admissible. The fact conflicting inferences can be drawn regarding authenticity goes to the document's weight as evidence, not its admissibility.' " (People v. Goldsmith (2014) 59 Cal.4th 258, 267.) A photograph is normally authenticated by showing it is a fair and accurate representation of its subject. (Id. at pp. 267-268.) Certification may serve to authenticate a copy of an official writing, but " '[o]ther evidence may establish that a [purported copy of an official writing] is authentic and reliable' "; this evidence may include circumstantial evidence and the contents of the writing. (People v. Gonzalez (2019) 42 Cal.App.5th 1144, 1149; see id. at pp. 1150-1151 [uncertified, unauthenticated printout of court records not sufficient to prove prior conviction].)
The trial court did not abuse its discretion in admitting the photographs. Huynh testified he took the photographs and they reflected the vehicle registration. The document on its face appears to be an ordinary registration card, of the type made within the scope of the duties of the Department of Motor Vehicles (DMV). (Evid. Code, § 1280; Veh. Code, § 4450 [DMV must issue registration card to owner upon registering vehicle]; Veh. Code, § 4150 [owner must provide proof of ownership to DMV for vehicle registration].) We presume these official duties were regularly performed. (People v. Martinez (2000) 22 Cal.4th 106, 124-125 [applying official records exception to uncertified printout of statutorily-mandated "CLETS" records from Department of Justice computer system].) And the registration form's authenticity and trustworthiness are corroborated by the fact that it was carried in the vehicle, in compliance with Vehicle Code section 4462, which requires a driver to present "the registration or identification card or other evidence of registration" to a peace officer upon demand.
In any case, even if the registration card did not meet the strict requirements of section 1280, it was relevant for a non-hearsay purpose: The fact that the vehicle contained a document purporting to identify defendant as the owner is circumstantial evidence that he used the truck and exercised dominion and control over both the truck and the items within it. (See People v. Williams (1992) 3 Cal.App.4th 1535, 1543 [utility bill with defendant's name on it, even without an address, would be circumstantial evidence that person resided in apartment where bill found]; People v. Goodall (1982) 131 Cal.App.3d 129, 142 [even without considering lease, rent receipt, and other documents in defendant's name for the truth of matter stated therein, jury could infer items would not be there unless defendant had some dominion and control over residence]; see People v. Rushing (1989) 209 Cal.App.3d 618, 622 [presence of documents in defendant's name in dresser of room where he was sleeping was evidence he had right to exercise dominion and control over apartment where cocaine was found].) Defendant points out that the trial court did not instruct the jury to consider the photographs only for a non-hearsay purpose, and the prosecutor argued in his closing statement that the truck was registered to defendant. But even if the evidence should have been limited to this purpose, there was no prejudice. (People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant was driving the truck; it contained a document—valid or not—that held him out as the owner, creating an obvious inference that he normally used the vehicle; one of the guns was in a bag that also contained medications in defendant's name; and the other was in a concealed rear compartment that would likely be inaccessible to a casual passenger. There is no reasonable probability a limiting instruction would have changed the result.
II. Admission of Prior Felony Conviction
Defendant contends the finding that he previously suffered a "strike" prior conviction should be reversed because the record does not show his admission was knowing and voluntary.
A. Background
The information alleged that defendant was convicted in 1995 of voluntary manslaughter, which is a "strike." (§ 667, subds. (b)-(i).)
At a pre-trial hearing, defense counsel asked to have the issue of the prior conviction bifurcated, and the prosecutor and defense counsel agreed the jury should hear a stipulation that defendant was a felon for purposes of deciding whether he was a felon in possession of weapons and ammunition. The court asked defendant, "Mr. Vella, do you understand what we're doing there?" and he replied, "Yes."
Immediately after the jury rendered its verdict, the court and counsel had an unrecorded bench conference, after which the court stated, "There was one bifurcated issue, however, counsel has informed me they intend to waive jury on that issue. [¶] Is that correct, [defense counsel]?" He replied, "Yes," and the court dismissed the jury. The prosecutor told the court he was prepared to submit evidence of the prior conviction if defendant did not enter an admission, and the court told defendant, "So, Mr. Vella, you do have the right to have a trial on the issue as to whether or not you had that prior conviction. They have to prove it beyond a reasonable doubt. Generally, what they do is they turn in the conviction and that's the proof. You can have a trial on that in front of the Court right now, if you would like, or we can just have you admit that you have suffered that prior conviction." Defense counsel said, "Mr. Vella is prepared to admit that."
After the court read the allegation aloud, defendant said, "Can I ask the Court to view this as a Romero hearing? That's over 20 years old, isn't it?" The court told defendant, "So, whether or not you are admitting the allegation doesn't have anything to do with the Romero issue. That is what we have to do first. You said—I don't know if you are willing to admit that or not." Defendant answered, "Yes, sir," and his counsel said, "That's with my advice and consent, your honor." The court asked defendant if "the admission was freely and voluntary made without any promises made to him," defendant replied, "Yes," and the court entered the admission, noting it expected defense counsel to submit a motion under Romero, supra, 13 Cal.4th 497, which gives a trial court discretion to dismiss "strike" prior conviction allegations in the furtherance of justice.
B. Analysis
Before accepting a defendant's admission of a prior felony conviction that will result in increased punishment, a trial court must ensure the admission is knowing and voluntary; in order to do so, it must inform a defendant of the rights to confrontation and a jury trial and the privilege against self-incrimination, and secure a personal waiver of each. (People v. Cross (2015) 61 Cal.4th 164, 170 (Cross); In re Yurko (1974) 10 Cal.3d 857, 860-863 (Yurko); People v. Lloyd (2015) 236 Cal.App.4th 49, 56-57.) The defendant must also be informed of the penal consequences of the admission. (Cross, at p. 171; Yurko, at pp. 864-865.) None of that was done here, where the defendant was advised only of his right to a trial before the court, with the prosecutor required to prove the prior conviction beyond a reasonable doubt.
Failure to provide the required advisements explicitly and obtain express waivers is not reversible per se, however. (People v. Howard (1992) 1 Cal.4th 1132, 1178-1179.) The test, rather, is that "[t]he record must affirmatively demonstrate that the plea was voluntary and intelligent under the totality of the circumstances," in light of the whole record, not just the plea colloquy. (Id. at p. 1178; Cross, supra, 61 Cal.4th at pp. 171, 180.)
The Attorney General concedes that the jury trial waiver was ineffective because defendant did not personally enter a waiver (see Cross, supra, 61 Cal.4th at p. 170), but contends defendant forfeited his challenge to the jury waiver by failing to object below. The Attorney General is correct that the right to a jury trial on this issue is not derived from the state or federal Constitution (id. at p. 172 ["[P]ost-Yurko case law has clarified that there is no constitutional right to a jury trial on a prior conviction allegation"]), and, as a result, " '[a]bsent an objection to the discharge of the jury or commencement of court trial, defendant is precluded from asserting on appeal a claim of ineffectual waiver of the statutory right to a jury trial of prior prison term allegations' " (People v. Grimes (2016) 1 Cal.5th 698, 738). However, defendant's argument, as we understand it, is not so much that the judgment must be reversed because the jury trial waiver was ineffective, but that his admission was not knowing and voluntary because he was not expressly informed of all the trial rights he was giving up, including his right to a jury trial. (See People v. Ernst (1994) 8 Cal.4th 441, 445-446 [recognizing distinction between requirements that defendant expressly waive jury trial right and that plea be knowing and intelligent].) The authority upon which the Attorney General relies does not persuade us that we may not consider whether defendant was adequately informed of the full extent of the rights he was giving up when we determine whether the record affirmatively demonstrates his admission was intelligent and voluntary.
The record here meets this standard. Defendant was present during a pretrial hearing on the morning of Friday, October 19, 2018, in which counsel agreed the trial of the prior conviction would be bifurcated and the parties would stipulate the jury would be told he was a felon, and he said he understood what was happening. Trial began later that day and four days later the jury reached its verdict, followed immediately by the colloquy quoted above. Thus, at the time defense counsel stated that he waived a jury trial on the "bifurcated issue," defendant had only recently heard a discussion of the nature of that issue—that is, the prior conviction allegation. After dismissing the jury, the court told defendant that he had a right to a trial before the court on the prior conviction and that the prosecutor had to prove the conviction beyond a reasonable doubt. Defendant had just sat through a trial at which his attorney cross-examined the sole witness and he had exercised his right not to testify after being informed by the court of his right both to testify and to remain silent. This record indicates defendant understood the trial rights he was giving up. (See People v. Mosby (2004) 33 Cal.4th 353, 365 [defendant had just participated in jury trial where he had confronted witness and remained silent, as well as having pleaded guilty in the past].) And although defendant was not informed on the record of the penal consequences of his admission, his counsel affirmed that the admission was made with his advice and consent. Further, defendant's own words indicate his " ' "knowledge and sophistication regarding his [legal] rights" ' " (id. at p. 365) and the consequences of his admission: Before making the admission, he spontaneously asked the court to treat the matter as a Romero hearing and pointed out that his strike conviction was remote, one of the factors that courts may consider in dismissing a prior conviction allegation. (People v. Wrice (1995) 38 Cal.App.4th 767, 771 [record disclosed appellant "not only aware of the increased penalties, but argued for leniency with that awareness"]; see People v. Bishop (1997) 56 Cal.App.4th 1245, 1250-1251 [remoteness as factor]; People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [same].) We are satisfied that the record affirmatively demonstrates defendant's admission was knowing and voluntary.
We exercise our discretion to consider the issue of the penal consequences of the admission despite defendant's failure to raise it below. (See People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6.)
III. Sentencing
Defendant contends the trial court made improper dual use of the same factor—the fact that he possessed two weapons—both in imposing the upper term for count one and in imposing consecutive sentences for counts one and two. He also argues the court's use of this factor was improper because his possession of two weapons was already accounted for by the two counts of possession of a firearm by a felon.
The probation report listed four circumstances in aggravation: defendant had engaged in violent conduct, indicating a serious danger to society; his prior convictions were numerous; he had served prior prison terms; and he was on parole when the crimes were committed. It identified no circumstances in mitigation, and recommended the aggravated term for count 1 and a consecutive term for count 2.
At the sentencing hearing, the trial court first declined to dismiss the strike allegation, explaining that, because defendant was on parole at the time of the crimes, he had committed two violent felonies in the past, and the present offenses involved loaded firearms, "this is the exact type of case that the three strikes law was created for." The court went on: "I did consider the facts as to mitigation and aggravation, and I do find that aggravation outweighs mitigation, that the defendant has engaged in violent conduct in the past which was indicated, serious danger to society, and that being in possession of two firearms and additional ammunition shows a tendency toward more violence. He has prior convictions as outlined in the probation's report. He has served prior prison terms, and he is currently on parole. [¶] I also looked at the Supreme Court case People v. Correa[ (2012)] 54 Cal.4th 331, and it discussed specifically multiple punishments for multiple violations of the same crimes[,] specifically a felon being in possession of multiple firearms.[] I do think that the most appropriate sentence in this case because I do think that there is an aggravating factor by stockpiling firearms, one firearm is bad, two is worse, so I do think that the aggravated sentence to Count One is most appropriately three years, one third of the midterm of Count Two[,] which is . . . 8 months." As to count 3 for possession of ammunition, the court indicated that it did not involve a separate intent from possession of weapons but that "the aggravated factors still apply"; the court initially said the upper term would run concurrently with counts 1 and 2, but on the prosecutor's request for clarification, the court imposed and stayed one-third the midterm on count 3.
Our high court held in People v. Correa, supra, 54 Cal.4th at pp. 334, 340-344 (Correa) that section 654 does not bar multiple punishment for multiple violations of the same provision of law—in that case, a felon possessing multiple guns.
California Rules of Court, rule 4.425(b)(1) provides that a court may consider any circumstance in aggravation or mitigation in deciding whether to impose consecutive rather than concurrent terms, except, inter alia, "[a] fact used to impose the upper term." Following this rule, our high court in People v. Osband (1996) 13 Cal.4th 622, 729 (Osband), held it was error for a court to use the violent nature of a crime both to impose the upper term for a rape and to impose the full consecutive sentence for the rape under section 667.6, subdivision (c). Defendant contends the trial court made the same error here in relying on the same factor—his possession of more than one weapon—to impose both the upper term for count 1 and a consecutive sentence for count 2. He also argues his sentence violates the rule that "[a] fact that is an element of the crime on which punishment is being imposed"—that is, in defendant's view, the fact that he was convicted of two separate weapons crimes—"may not be used to impose a particular term." (Rule 4.420(d).)
All rule references are to the California Rules of Court.
The Attorney General argues defendant forfeited his claim by failing to raise it at the sentencing hearing. (People v. Scott (1994) 9 Cal.4th 331, 353 (Scott) [waiver doctrine applies to claims involving trial court's "failure to properly make or articulate its discretionary sentencing choices," such as where court purportedly double-counted a sentencing factor].) Relying on People v. Gonzalez (2003) 31 Cal.4th 745, 752 (Gonzalez), defendant responds that he was not afforded the opportunity to object to the court's consideration of the two guns before the court imposed sentence. In Gonzalez, our high court held that the Scott rule applies when the trial court clearly apprises the parties of the sentence it intends to impose and its reasons, and give the parties the chance to seek " 'clarification or change.' " (Gonzalez, at p. 752.) This opportunity is adequate "if, at any time during the sentencing hearing, the trial court describes the sentence it intends to impose and the reasons for the sentence, and the court thereafter considers the objections of the parties before the actual sentencing. The court need not expressly describe its proposed sentence as 'tentative' so long as it demonstrates a willingness to consider such objections." (Gonzalez, supra, 31 Cal.4th at p. 752.)
The proceedings below met these standards. It is true that the court did not expressly describe the sentence as tentative, and that it did not invite the parties to comment after indicating the sentence it "would" impose and before ordering fines and fees. But when the prosecutor afterward asked for clarification of the sentence for count 3, the court considered the request, asked defense counsel if he had any comments, and amended the sentence for that count in response to the prosecutor's concern. This record indicates the parties had the opportunity to seek " 'clarification or change' " of the sentence. (Gonzalez, supra, 31 Cal.4th at p. 752.)
In any case, we are not persuaded the trial court committed prejudicial error. We are guided by Osband, which explained, " 'Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if "[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error." ' [Citation.] Only a single aggravating factor is required to impose the upper term [citation], and the same is true of the choice to impose a consecutive sentence [citation]. In this case, the court could have selected disparate facts from among those it recited to justify the imposition of both a consecutive sentence and the upper term, and on this record we discern no reasonable probability that it would not have done so. Resentencing is not required." (Osband, supra, 13 Cal.4th at pp. 728-729.)
We reach the same conclusion here. It is true, as defendant points out, that at one point during its explanation of its decision, the trial court mentioned the presence of two guns as if this were both an aggravating factor for count one and a justification for running the sentence on count two consecutively. But this statement came immediately after the court articulated multiple other facts in aggravation and found they outweighed those in mitigation. The court could have relied on any of those facts to impose the upper term or a consecutive term. Like the court in Osband, we see no reasonable probability the result would have been different if the court had considered the fact of defendant "stockpiling" firearms only with respect to one of the terms.
Finally, we are not persuaded that relying on this fact was improper on the ground that possession of multiple firearms is already encompassed by defendant's two convictions. It is clear that consecutive sentences may be imposed for possession of multiple firearms by a felon (Correa, supra, 54 Cal.4th 331), and the trial court found other aggravating factors outweighed any factors in mitigation, such that it had reason to select the upper term for count 1.
DISPOSITION
The judgment is affirmed.
/s/_________
TUCHER, J. WE CONCUR: /s/_________
POLLAK, P. J. /s/_________
BROWN, J.