Opinion
F063563
12-19-2012
THE PEOPLE, Plaintiff and Respondent, v. JULIAN ALDERETE, Defendant and Appellant.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. Nos. VCF247468, VCF246720A)
OPINION
APPEAL from a judgment of the Superior Court of Tulare County. Gerald F. Sevier, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
Julian Alderete was charged and convicted of numerous counts in two cases and pled no contest to two counts in a third case. On appeal, we disagree with his contentions that the trial court erred when it consolidated two cases for trial and when it admitted a victim's medical records. We agree with his contentions that there was insufficient evidence to support his conviction for first degree robbery; that an enhancement for great bodily injury attached to one count must be stricken because there was no finding by the jury; and with his various claims of sentencing error. In all other respects, we affirm.
PROCEDURAL HISTORY
On March 16, 2011, Alderete was charged in Case No. VCF247468 (Case B) with one count of receiving stolen property (Pen. Code, § 496, subd. (a)) and one count of possession of a completed check with intent to defraud (§ 475, subd. (c)). It was further alleged that, at the time of the alleged offenses, Alderete was out on bail in Case No. VCF230945 (Case D) (§ 12022.1) and that he had served a prior prison term (§ 667.5, subd. (b)).
There are numerous case references in this opinion. The designation of Case A, B, C & D is for clarity purposes and consistent with the abstract of judgment.
All further statutory references are to the Penal Code unless otherwise stated.
On March 16, 2011, Alderete was also charged in Case No. VCF246720A (Case A) in Count 1 of first degree burglary with a person present, James Mackey (§ 459); in Count 2 of assault with a deadly weapon, a lamp, by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)); and in Count 3 of elder abuse causing great bodily injury (§ 368, subd. (b)(1) & (2)). It was also alleged as to all three counts that appellant personally inflicted great bodily injury on a person 70 years of age or older (§ 12022.7, subd. (c)); personally used a deadly weapon in the commission of the offense (§ 12022, subd. (b)(1)); committed the offenses while out on bail in Case D (§ 12022.1); and that he had served a prior prison term (§ 667.5, subd. (b)).
On July 7, 2011, Alderete was charged in case No. VCF252351 (Case C) in Count 1 of first degree robbery of a dwelling inhabited by Israel Reyna (§ 211); in Count 2 of first degree burglary, person present, Israel Reyna (§ 459); in Counts 3 and 4 of grand theft of firearms (§ 487, subd. (d)(2)); in Count 5 of elder abuse under circumstances likely to produce great bodily injury (§ 368, subd. (b)(1)); in Count 6 of being a felon in possession of a firearm (§ 12021, subd. (a)(1)); and in Count 7 of the burglary of a dwelling inhabited by Ramon Campos (§ 459). It was also alleged that Alderete personally used a firearm in the commission of Count 1 (§ 12022.53, subd. (b)) and in Count 2 (§§ 12022.5, subd. (a)(1), 1203.16(a)(1)); that he committed all offenses while out on bail in Case D (§ 12022.1), and that he had served a prior prison term (§ 667.5, subd. (b)).
On July 15, 2011, the prosecutor filed a motion to consolidate Case A and Case C. After argument and over defense counsel's objection, the court granted the motion. The prosecutor then filed an amended information, combining both cases under Case A, with Counts 1 through 7 in former Case C remaining Counts 1 through 7, and with Counts 1 through 3 in former Case A becoming Counts 8 through 10.
Following a jury trial, Alderete was found guilty of all charges in the consolidated case, except that he was found not guilty of Counts 3 and 4 involving the grand theft of the firearms from Reyna's home. The personal use allegations and the personal infliction of great bodily injury to a person 70 or older allegations were found true. In a bifurcated proceeding, the jury found true the allegations that Alderete was out on bail at the time of the offenses and that he had served a prior prison term.
On August 11, 2011, pursuant to a plea bargain in Case B, Alderete pled no contest to both counts in exchange for the dismissal of the additional allegations and an agreement that he would receive "time concurrent to" his sentence in consolidated Case A.
The trial court sentenced Alderete, in consolidated Case A, to state prison for 28 years four months. It sentenced Alderete to two concurrent two-year terms for the convictions in Case B.
STATEMENT OF THE FACTS
Case B
On April 20, 2010, at approximately 6:00 in the evening, Alderete entered the Mormon Church in Visalia and took several pieces of equipment. He later sold a vacuum cleaner taken from the church at a swap meet. Alderete also attempted to cash a check at an ATM machine fraudulently taken from the church and made out to himself.
On September 9, 2010, detectives spoke to Alderete, who was in custody on another matter. Alderete denied possessing the vacuum, but claimed the check was payment for removing brush and taking it to the county dump.
Case A
James Mackey and his wife bought a house in Visalia in 2000. At some point, they invited Patsy Robinson and Patsy's two daughters, Tiffany and Rachel, to live with them. Patsy helped care for Mackey's wife, who was ill. Mackey usually kept $300 to $400 in cash around the house, usually in the spare bedroom. Mackey believed that, while Patsy lived with them, Mackey's wife often gave Patsy money. Although the house had an alarm system, Mackey did not use it because he had two large dogs that entered the house through a large dog door, which set off the alarm. Mackey asked Patsy and her daughters to leave sometime in early 2010 because he thought Patsy was drinking alcohol and taking dope. About the same time, Mackey's wife passed away. After Mackey's wife passed away, Mackey received a number of calls from Patsy asking for money, but he declined. He also received a numbers of calls in the weeks leading up to the burglary, but the person always hung up when he answered.
We will refer to the Robinson family members by their first names to avoid confusion.
On April 21, 2010, at about 4:00 or 5:00 in the morning, Mackey was asleep in the master bedroom of his house when he awoke and heard a noise like "somebody going through the drawers" in another bedroom. When he got up and turned on a light, the noise stopped. He then went to the other bedroom, where he saw a man, later identified as Alderete, holding a lamp over his head with both hands. The man hit Mackey over the head three or four times, which knocked Mackey down and caused profuse bleeding. Mackey then fought with the man, taking the lamp from him and removing a hat and bandana that were covering the man's face and removing latex glove tips on the man's hands. The man ran from the house.
Mackey phoned his son and asked that he call the police. Mackey's son then drove him to the hospital emergency room where he received 10 staples for the gashes in his head. While at the hospital, Mackey described his assailant to an officer. The following day, Mackey viewed about 350 photos of possible suspects, but did not pick any of them. Six months later, Mackey immediately picked Alderete out of a six person photo lineup, although, at trial, he could not remember doing so. A month and a half later, Mackey again picked Alderete out of a photo lineup. Approximately two weeks after that, Mackey again picked Alderete out of a photo lineup, this time writing "80 percent" next to it. At trial, Mackey testified that he had identified Alderete as the intruder during the three photo lineups, and he identified him at trial as being the person who attacked him. Mackey did not recall being unable to identify Alderete at the preliminary hearing.
A DNA sample from the baseball hat taken from the intruder revealed a mixture of two people: one was consistent with Patsy's DNA profile, the other was too small to make an identification.
Alexis Solis testified that Alderete, Patsy, Tiffany, Mollie Melchor and another individual were together at a motel on the night before the incident, taking drugs and talking. Alderete and Patsy left the motel around midnight, with Patsy saying they were "going on a mission," which Solis knew from prior experience meant that Patsy was going to do "something bad" like "steal." A week later, Solis was in an alley when she overheard Alderete, Patsy and Melchor talking about what they had done the night of April 21. Melchor threatened Solis and Tiffany if they said anything.
Case C
On April 15, 2010, Cecilia Campos and her parents left the family home for the evening, leaving Cecilia's friends Solis and Tiffany at the house. Once the Campos family was gone, Tiffany called her mother, Patsy, to report that there was money and other items to steal at the house. Twenty minutes later, Patsy, Alderete and Melchor arrived. Alderete and Patsy emerged a few moments later; Patsy was carrying a safe in her hands. Patsy later opened the safe.
On May 9, 2010, Israel Reyna was sitting outside his house around 2:00 or 3:00 in the afternoon, when three women, Solis, Tiffany and Melchor, drove up and said they wanted to see the Sago palms near his house. While Reyna was showing them the trees, Alderete, who had stayed behind in the car, came up behind Reyna, put his arm around his neck, told him not to move because he had a gun pointed at his head, and demanded money. Alderete then knocked Reyna down and took his wallet with about $140 in it. Reyna remained on the ground for awhile, but then told a neighbor what had happened and she called the police. When Reyna went back into his house, he realized that two rifles were missing.
At trial, Solis verified Reyna's account of the incident, including the fact that, when Alderete and Melchor returned to the vehicle, they had a wallet, a cell phone, and "a little bit of jewelry." Melchor told a detective a similar story during an interview, including the fact that she went into Reyna's house and took a "jewelry box." But at trial Melchor denied seeing Alderete pull a gun, grab Reyna or choke him, and she denied going into Reyna's house and denied seeing Alderete do so. Tiffany testified that she went to Reyna's house with Alderete, Melchor and Solis and, after Reyna came out of the house, Alderete put a gun to Reyna's back and asked where the money was. At this point, Tiffany and Solis ran back to the vehicle. When Alderete returned to the vehicle, he had some money in his hand.
DISCUSSION
I. CONSOLIDATION OF TWO INFORMATIONS
Alderete contends the trial court erred when it consolidated the two informations in Case A and Case C, denying him a fair trial. Respondent contends consolidation was proper. We agree with respondent.
Procedural Background
The prosecution moved to consolidate the two informations because the three different charged incidents (Mackey, Reyna and Campos) would be cross-admissible in separate trials, under Evidence Code section 1101, subdivision (b), to prove motive, intent, identity, and common plan. Defense counsel objected, arguing that the Mackey burglary was a "somewhat weaker" case because the victim was unable to identify Alderete at the preliminary hearing, and that Alderete would be prejudiced by the consolidation because both cases involved charges of abuse of elderly victims. The trial court granted the motion, stating:
"[C]onsidering the legal guidelines that apply to motions to consolidate, ... they strongly suggest the appropriateness of the consolidation of these matters. For all the reasons enunciated by counsel for the People at this morning's argument, yes, it's - it - well, excuse me. [¶] [Defense counsel's] concern was about prejudicial effect. Any relevant evidence is arguably prejudicial. Certainly, under [Evidence Code section] 1101(b), most likely, if I did not order consolidation, the other matter could be considered anyway and probably would be allowed by me, but that - there's no point in reaching any analysis because these cases clearly call for consolidation. So the motion is granted."
Applicable Law and Analysis
Section 954 provides in pertinent part, "[a]n accusatory pleading may charge two or more different offenses ... of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated...." Crimes are deemed to be of the same class if, for example, they "share common characteristics as assaultive crimes against the person. [Citations.]" (People v. Lucky (1988) 45 Cal.3d 259, 276.) Moreover, offenses that are committed at different times and places against different victims are nevertheless connected together in their commission pursuant to section 954 if they are linked by a common element of substantial importance. (Ibid.)
"Because consolidation ordinarily promotes efficiency, the law prefers it. 'Joinder of related charges, whether in a single accusatory pleading or by consolidation of several accusatory pleadings, ordinarily avoids needless harassment of the defendant and the waste of public funds which may result if the same general facts were to be tried in two or more separate trials [citation], and in several respects separate trials would result in the same factual issues being presented in both trials.' [Citation.] Thus, '[a] defendant can prevent consolidation of properly joined charges only with a "clear showing of prejudice" ....' [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 409, fn. omitted.)
In assessing prejudice, the trial court is guided by the factors set forth in Williams v. Superior Court (1984) 36 Cal.3d 441, 452-454 (Williams) (superseded by statute on another ground in Alcala v. Superior Court (2008) 43 Cal.4th 1205, 1229, fn. 19), namely "whether evidence of the crimes to be tried jointly would or would not be cross-admissible; whether some of the charges are unusually likely to inflame the jury against the defendant; whether the prosecution has joined a weak case with a strong case (or with another weak case), so that a 'spillover' effect from the aggregate evidence on the combined charges might alter the outcome as to one; and whether any of the joined charges carries the death penalty." (People v. Musselwhite (1998) 17 Cal.4th 1216, 1244.) However, because the law favors joinder, the defendant must make a stronger showing of potential prejudice than would be required to exclude other-crimes evidence in a severed trial. (People v. Arias (1996) 13 Cal.4th 92, 127.)
We review the trial court's ruling for abuse of discretion, which is shown when the court's ruling falls "'outside the bounds of reason.'" (People v. Ochoa, supra, 19 Cal.4th at p. 408.) We find no abuse of discretion here.
As the two informations charged the same offenses against different victims, namely burglary of an inhabited dwelling and elder abuse occurring within several weeks of each other, they met the statutory test of joinder, and Alderete must make a clear showing of prejudice. He has failed to do so under Williams. Despite Alderete's claim to the contrary, this case did not involve the joinder of a weak case with a strong case. Although Mackey may not have identified Alderete at the preliminary hearing as the person who committed the burglary, he identified him in numerous photo lineups and at trial, and the facts surrounding the events of April 21 were corroborated by Solis, one of the accomplices implicated in the Campos and Reyna case.
However, even if the trial court's ruling was correct when made, "we must reverse if defendant shows that joinder actually resulted in 'gross unfairness,' amounting to a denial of due process." (People v. Arias, supra, 13 Cal.4th at p. 127.) Alderete fails to show that gross unfairness occurred at trial. To the contrary, the fact the jury acquitted him of two counts of firearm theft raises a strong inference that it weighed the evidence against him and was not improperly influenced by consolidation of the two cases. Accordingly, we conclude no due process violation occurred. II. SUFFICIENCY OF THE EVIDENCE OF FIRST DEGREE ROBBERY
Alderete contends that there is insufficient evidence to support his conviction of Count 1, the first degree robbery of Reyna. We agree.
"'The proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] On appeal, we must view the evidence in the light most favorable to the People and must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is reasonable, credible, and of solid value, nonetheless it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts on which that determination depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must accord due deference to the trier of fact and not substitute our evaluation of a witness's credibility for that of the fact finder. [Citations.]' [Citation.]" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206; see also People v. Koontz (2002) 27 Cal.4th 1041, 1078.)
Section 211 defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." Section 212.5, subdivision (a) provides, in relevant part, "Every robbery of any person ... which is perpetrated in an inhabited dwelling house ... or the inhabited portion of any other building is robbery of the first degree." The jury was instructed in terms of CALCRIM No. 1602: "Robbery is divided into two degrees. If you conclude that the defendant committed robbery, you must then decide the degree. [¶] To prove that the defendant is guilty of first degree robbery, the People must prove that: [¶] The robbery was committed in an inhabited dwelling. A dwelling is inhabited if someone lives there and either is present or has left but intends to return. [¶] All other robberies are of the second degree...."
"The term 'inhabited dwelling house' for many years has been considered a broad, inclusive definition [citations], and has been analyzed in terms of whether the dwelling was being used as a residence." (People v. Cruz (1996) 13 Cal.4th 764, 776.) Various areas of a structure have been found to be part of an inhabited dwelling for purposes of first degree robbery. (See, e.g., People v. Wilson (1989) 209 Cal.App.3d 451, 453 [hotel lobby]; People v. Zelaya (1987) 194 Cal.App.3d 73, 74-76 [garage, basement, hallway, and several storage rooms in an apartment house]; People v. Nunley (1985) 168 Cal.App.3d 225, 231-232 [entry way of apartment building]; In re Christopher J. (1980) 102 Cal.App.3d 76, 80 [entryway of a carport physically attached to dwelling].) But no case has found that a robbery committed in the front yard of an inhabited dwelling constitutes robbery "in" an inhabited dwelling. In People v. Cruz, our Supreme Court recognized that the legislative purpose underlying the residential burglary statue is "to protect the peaceful occupation of one's residence." (People v. Cruz, supra, at p. 775.) Other courts have recognized that the "[v]ictims inside buildings are more vulnerable to felonious conduct than victims out of doors." (People v. Fleetwood (1985) 171 Cal.App.3d 982, 987.)
Alderete was charged and convicted of first degree robbery of Reyna on the theory that he committed a robbery of an inhabited dwelling. However, the robbery of Reyna occurred outside his house when Alderete arrived on the property, held a gun to his head and asked him for money. Alderete contends that, at most, these facts establish a second degree robbery, not first degree. Respondent argues that, while the attack on Reyna and the taking of his wallet took place outside the house, there was further evidence that Melchor, Alderete's accomplice, and perhaps also Alderete, then entered Reyna's residence and took property, including jewelry, which supports the residential burglary conviction. In other words, according to respondent, Alderete's force on Reyna outside of his home allowed Melchor and perhaps Alderete to enter the house and take property, making it a residential robbery.
We disagree with respondent. There is no question that a robbery of Reyna occurred in the yard of his home, not in an inhabited dwelling. Thus, there is insufficient evidence to support Alderete's conviction of first degree robbery of Reyna.
"[I]f the evidence shows the defendant to be not guilty of the degree of the crime of which he was convicted, but guilty of a lesser degree thereof, or of a lesser crime included therein, the court may modify the verdict, finding, or judgment accordingly without granting or ordering a new trial, and this power shall extend to any court to which the case may be appealed." (§ 1181, subd. (6); People v. Navarro (2007) 40 Cal.4th 668, 678 ["an appellate court may modify a verdict to reflect a conviction of a lesser included offense where insufficient evidence supports the conviction on the greater offense"].) "The purpose for allowing an appellate court to modify the judgment to a lesser included offense is to 'obviate the necessity of a new trial when the insufficiency of the evidence only goes to the degree of the crime.'" (People v. Matian (1995) 35 Cal.App.4th 480, 487; see also § 1260 ["The court may reverse, affirm, or modify a judgment or order appealed from, or reduce the degree of the offense or attempted offense or the punishment imposed ..."].)
Here, there was sufficient evidence that Alderete took money from Reyna by force outside of his home. For this reason, we modify the judgment on Count 1 to reflect a conviction of second degree robbery. III. ADMISSION OF MACKEY'S MEDICAL RECORDS
Alderete contends his conviction for elder abuse of Mackey (Count 10), and the findings in conjunction with the counts of assault (Count 9) and burglary (Count 8) that he personally inflicted great bodily injury on Mackey, a person 70 years of age or older, must be reversed or reduced because, absent erroneously admitted hearsay in Mackey's medical records, admitted for another purpose (to bolster Mackey's testimony of his injuries), there was insufficient evidence of Mackey's age. Specifically, Alderete argues that the information contained in the medical records about Mackey's wounds and treatment at the hospital was cumulative to Mackey's testimony; the medical records did not qualify as business records because the records were not properly certified; and the records contained second-level hearsay information evidencing Mackey's birth date or reference to his age, which was not an "act, condition, or event," as allowed under Evidence Code section 1271. We find no prejudicial error.
Procedural History
During his opening statement, the prosecutor stated that Mackey was "about 74 years old." However, during Mackey's trial testimony he was never asked any questions about his age. Mackey did suggest during his testimony that his "age" or becoming "old" were the reasons he had a current memory problem. However, the jury heard and saw a detective's recorded interview, not objected to, in which the detective informed Alderete that Mackey was "an old man that's 75 years old."
After Mackey testified, the prosecution sought to introduce the medical records of Mackey's treatment at the hospital immediately after the incident. The prosecutor had served the hospital with a subpoena duces tecum for those records, but the hospital mistakenly sent the records of Mackey under a caption for a different case, which included a custodian declaration for medical records of an unrelated third person, to the court. Because of the confusion caused by the wrong caption and declaration, the parties failed to discover that Mackey's medical records were attached to the declaration. The next day, the parties discovered that Mackey's records were in the records produced to the court, but under the incorrect caption. It was also discovered that a custodian declaration for Mackey's medical records was produced, but it was attached to the medical records for the unrelated third person. Defense counsel then objected to admission of the records into evidence based upon "late discovery," a lack of foundation, and that they were duplicative of Mackey's testimony about the injuries he sustained. No ruling was made on the admission of the medical records, so as to allow defense counsel to review the records.
The following day, after defense counsel reviewed the records, he again reasserted the same objections to introduction of the records. The prosecutor argued that the foundation was established by the fact that the records were "received under seal" from the hospital. The prosecutor also argued that Mackey suffered from some memory lapses and the records helped to substantiate his testimony. Finally, the prosecutor noted that, while the records were late, they were simple in nature and did not provide any evidence "that is shaking or unaccepted." Defense counsel argued that "bringing in the attending physician" would be necessary to make the records admissible. The trial court stated it understood defense counsel's objection as "a hearsay objection beyond business records ... particularly as to any observations of the attending physician." It took the matter under submission.
The following day, after the prosecution rested, the trial court noted that defense counsel had had an opportunity to inspect them and ruled that the medical records were admissible. The trial court subsequently instructed the jury on the prosecutor's late production of medical records.
The medical records at issue, People's Exhibit 58, contain repeated references to Mackey's date of birth, making him 73 years old at the time of the incident.
Applicable Law and Analysis
Evidence Code section 1271 provides:
"Evidence of a writing made as a record of an act, condition, or event is not made inadmissible by the hearsay rule when offered to prove the act, condition, or event if:
"(a) The writing was made in the regular course of a business;
"(b) The writing was made at or near the time of the act, condition, or event;
"(c) The custodian or other qualified witness testifies to its identity and the mode of its preparation; and
"(d) The sources of information and method and time of preparation were such as to indicate its trustworthiness."
A trial court has wide discretion to determine whether a sufficient foundation was laid to qualify a document as a business record, and we will not reverse the trial court's ruling absent an abuse of discretion. (People v. Hovarter (2008) 44 Cal.4th 983, 1011.) To demonstrate an abuse of discretion, the defendant must show "'no reasonable basis'" for admitting the evidence. (People v. Dean (2009) 174 Cal.App.4th 186, 193.)
We agree with respondent that Alderete's argument, that the date of birth and age contained in the records were inadmissible hearsay, is not cognizable on appeal because he failed to make that argument in the trial court. (Evid. Code, § 353, subd. (a).) In any event, statements in medical records regarding a patient's age is, "as a matter of common knowledge, a relevant part of [the patient's] medical history and the record should be admissible under the statute as proof of the fact." (Pollack v. Metropolitan Life Ins. Co. (3rd Cir. 1943) 138 F.2d 123, 128 [addressing the federal counter part of Evid. Code, § 1271].)
Regarding the argument that Alderete did make in the trial court, that the medical records were cumulative, we find no abuse of discretion on the trial court's part in finding the evidence admissible. Evidence Code section 352 provides that the trial court may, in its discretion, exclude evidence if its probative value is substantially outweighed by the probability that its admission will "necessitate undue consumption of time." Mackey was an elderly witness with a failing memory, and his testimony about the injuries and treatment he received was not nearly as clear as the information contained in the 12 pages of medical records.
As for questions concerning adequate foundation for the medical records, the court in In re R.R. (2010) 187 Cal.App.4th 1264, 1280, observed that
"[h]ospital records are often admissible under the business records exception to the hearsay rule, assuming a custodian of records or other duly qualified witness satisfies the requirement of the exception. (Evid. Code, § 1271.) Compliance with a subpoena duces tecum often dispenses with the need for a live witness to establish the business records exception. (Evid. Code, § 1560 et seq.)"
Here, the "Order to Attend Court or Provide Documents," or subpoena duces tecum, prepared by the hospital's custodian of records contained in the record on appeal is for the wrong case, as is the declaration from the custodian of records. This is the situation that led to the untimely production of medical records to the defense. The correct order and declaration for Mackey's medical records was improperly attached to the medical records for another patient in another case. Based on this, we find that the proper foundation for admission of Mackey's medical records under Evidence Code sections 1271 and 1561 was not satisfied. However, we find the admission of the medical records outlining his injuries and treatment, without a proper business records foundation, to be harmless. Alderete admits that the medical records on his injuries and treatment was cumulative to his testimony. Based on the testimony presented in the trial, we conclude that it is reasonably probable that the jury's verdict would have been the same without the challenged medical records.
Elder abuse under section 368, subdivision (b)(1), as charged in Count 10, is committed when "[a]ny person who knows or reasonably should know that a person is an elder or dependant adult who, under circumstances or condition likely to produce great bodily harm or death, willfully causes or permits any elder or dependent adult, to suffer, or inflicts thereon unjustifiable physical pain or mental suffering .... [¶] ... [¶] (g) As used in this section, 'elder' means any person who is 65 years of age or older." Section 12022.7, subdivision (c) as charged in Counts 8 and 9, provides for additional punishment if a person personally inflicts great bodily injury during the commission of the offense on a person who is 70 years of age or older. The jury was instructed in accordance with these statutes. Thus, while section 12002.7 requires that the People prove Mackey was 70 years or older at the time of the offenses, section 368 requires that the People prove Alderete knew Mackey was 65 or older at the time of the offenses.
There was no finding by the jury on the allegation that Alderete personally inflicted great bodily injury in the commission of elder abuse charged in Count 10. (See part IV, section A of the Discussion, below.)
Even assuming, arguendo, that the medical records should not have been admitted, there was sufficient evidence presented to the jury that Mackey was 70 years of age or older, as evidenced by the detective's statements to Alderete during an interview with him that Mackey was "an old man that's 75 years old." There is also sufficient evidence that Alderete knew Mackey was 65 years of age or older. He committed the offenses against Mackey with the aid of Patsy, who had lived with the Mackey family and helped care for Mackey's invalid wife prior to her death. IV. SENTENCING
Alderete's remaining contentions involve sentencing. Sentencing on both Case A and Case B took place September 28, 2011, and a sentence modification hearing on Case A was held October 13, 2011.
We set forth Alderete's sentencing in Case A in detail, as follows:
Count 1: 19 years, consisting of the upper term of 6 years (§ 211), plus 10 years (§ 12022.53, subd. (b)), plus 2 years (§ 12022.1), plus 1 year (§ 667.5, subd. (b));Alderete was given 246 days custody credits, plus 72 days statutory credits, for a total of 318 credit days. He was ordered to pay restitution in the amount of $10,000; a parole revocation fine of $10,000, suspended pending completion of parole; $40 pursuant to section 1202.5; a $320 court security fee; and a $240 criminal conviction assessment.
Count 2: 4 years concurrent (§ 459), plus 10 years (§ 12022.5);
Count 5: 7 years stayed pursuant to section 654, consisting of 3 years (§ 368, subd. (b)), plus 4 years (§ 12022.5, subd. (a));
Count 6: consecutive 8 months (§ 12021, subd. (a)(1));
Count 7: consecutive 1 year 4 months (§ 459);
Count 8: consecutive 7 years 4 months, consisting of 1 year 4 months (§ 459), plus 5 years (§ 12022.7, subd. (c)), plus 1 year (§ 12022, subd. (b)(1));
Count 9: 8 years stayed pursuant to section 654, consisting of 3 years (§ 245, subd. (a)(1)), plus 5 years (§ 12022.7, subd. (c));
Count 10: 9 years stayed pursuant to section 654, consisting of 3 years (§ 368, subd. (b)(1)), plus 5 years (§ 12022.7, subdivision (c)), plus 1 year (§ 12022, subd. (b)(1)).
In Case B, the trial court imposed a concurrent term of two years on each of the two counts to which he pled, both to run concurrent to the sentence in Case A, and awarded "the same credits given to you in the other case," namely 246 actual and 72 conduct, for a total of 318 credit days. He was ordered to pay a $200 restitution fine; a $200 parole revocation fine; $100 in restitution; a $80 security fee; and a $60 criminal conviction assessment.
Respondent concedes on each of Alderete's sentencing contentions. We address each contention in turn.
A. Great Bodily Injury Enhancement to Count 10
Alderete was charged in Count 10 with elder abuse (§ 368, subd. (b)(1)), and it was further alleged that he personally inflicted great bodily injury (§ 12022.7, subd. (c)) and that he personally used a deadly weapon (§ 12022, subd. (b)(1)). A jury found Alderete guilty in Count 10 of elder abuse and found that he personally used a deadly weapon in the commission of that offense. But there was no option to find, and therefore no finding by the jury, on the allegation that Alderete personally inflicted great bodily injury on that count. Alderete contends that the great bodily injury enhancement (§ 12022.7, subd. (c)) to Count 10, for which punishment was stayed, must be stricken because there was no finding by the jury on that allegation.
"All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact." (§ 1170.1, subd. (e); see People v. Najera (1972) 8 Cal.3d 504, 509-511 [gun use enhancement must be found by jury, not judge], disapproved on other grounds in People v. Wiley (1995) 9 Cal.4th 580, 587-588.) The imposition of punishment in excess of statutory provisions is an unauthorized sentence (People v. Scott (1994) 9 Cal.4th 331, 354) and may be corrected by this court (People v. Ayon (1996) 46 Cal.App.4th 385, 395-396, fn. 7, abrogated on other grounds in People v. Deloza (1998) 18 Cal.4th 585).
We agree that the sentence for great bodily injury enhancement pursuant to section 12022.7, subdivision (c) on Count 10 must be stricken.
B. Great Bodily Injury Enhancement to Count 8
At sentencing on September 28, 2011, the trial court designated Count 1 as the principal term. On Count 8, the trial court imposed a consecutive term of one year four months, one-third the middle term of four years. On the great bodily injury enhancement attached to that count, section 12022.7, subdivision (c), which provides for a five-year enhancement, the court imposed one year eight months, or one-third the five-year term. This sentence was in disagreement with the recommendation of the probation report to impose a full five-year great bodily injury enhancement to Count 8.
At the subsequent sentencing hearing on October 13, 2011, the trial court stated that "the clerk in going over the paperwork" had "noticed a problem" on Count 8. As stated by the court, "There [were] two special allegations. The court imposed one-third the midterm on both. That's wrong insofar as the 12022.7. That doesn't have a range." The trial court then imposed a five-year enhancement for the section 12022.7, subdivision (c) great bodily injury enhancement to Count 8.
Alderete contends that the trial court's original imposition of one year eight months on the section 12022.7, subdivision (c) great bodily injury enhancement to Count 8 was correct. Section 1170.1, subdivision (a), states, in relevant part:
"The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses."
We agree that the section 12022.7, subdivision (c) enhancement on Count 8 must be reduced to one year eight months, or 20 months.
C. Personal Use of a Deadly Weapon Enhancement on Count 8
The personal use of a deadly weapon enhancement attached to Count 8, section 12022, subdivision (b)(1), provides for an additional punishment of one year or, in this case, one-third of that amount or four months because the sentence in Count 8 was a subordinate term. The probation report incorrectly states that the applicable enhancement statute was section 12022.5, subdivision (a), which provides for an additional punishment of three, four, or 10 years.
At sentencing on September 28, 2011, the prosecutor placed on the record a discussion in chambers which recognized the error in the probation report, and the trial court enhanced punishment for Count 8 by four months pursuant to section 12022, subdivision (b)(1). At sentencing on October 13, 2011, the court repeated the mistake in the probation report and stated that the "midterm on the 12022.5 is appropriate, and that's going to stay." The abstract of judgment, apparently relying on the October 13, 2011, sentencing hearing, shows that Count 8 was enhanced 16 months pursuant to section 12022.5, subdivision (a).
We agree that the enhancement on Count 8 should be pursuant to section 12022, subdivision (b)(1) and must be reduced to four months.
D. Term on Count 2
At sentencing on September 28, 2011, the trial court designated Count 1, the first degree robbery (§ 211) of Reyna, as the principal term, and imposed the upper term of six years. It also imposed a four-year concurrent term on Count 2, the burglary (§ 459) of Reyna's home. Alderete contends that the trial court should have stayed punishment for the burglary under section 654 because the two crimes were committed with a single criminal objective, i.e., to take Reyna's property, and constituted an indivisible court of conduct.
We have determined in part II of the Discussion, ante, that the first degree robbery conviction in count 1 must be reduced to second degree robbery, for which the trial court may impose a two-, three-, or four-year prison sentence. (§§ 211, 213.)
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Section 654, subdivision (a) provides, in relevant part:
"An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision."
Whether the facts and circumstances reveal a single intent and objective within the meaning of section 654 is generally a factual matter; the dimension and meaning of section 654 is a legal question. (Neal v. State of California (1960) 55 Cal.2d 11, 17, disapproved on other grounds in People v. Correa (2012) 54 Cal.4th 331, 341.) The prosecutor argued during closing comments that the burglary of Reyna's home by Melchor occurred while Alderete robbed Reyna, holding a gun to his head and taking his money. Such evidence supports a conclusion the burglary was still in progress when Alderete committed the robbery and both offenses were committed pursuant to one objective and there was but a single continuous course of conduct. (People v. Irvin (1991) 230 Cal.App.3d 180, 184-185; People v. Estes (1983) 147 Cal.App.3d 23, 28.)
In imposing sentence, the trial court stated that the term for burglary "has to run concurrent to Count 1. If I can make it consecutive, I would, but I can't." The court's comments appear to be another example in which a trial court made the common error of imposing concurrent terms, in lieu of staying the term subject to section 654, as is required by People v. Miller (1977) 18 Cal.3d 873, 886-887 (overruling on other grounds recognized in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8).
We agree that the Count 2 term for burglary must be stayed pursuant to section 654.
E. Additional Presentence Credit
Alderete makes several claims of error in calculating his custody and conduct credits in both Case A and Case B.
According to the probation report, Alderete was arrested on January 5, 2011. A probation report filed for both cases calculated that Alderete had been in custody from January 5, 2011, until September 7, 2011, the initial date set for Alderete's sentencing, a total of 246 days. After sentencing was continued, first to September 8, 2011, and then to September 28, 2011, another probation report was filed, but the calculations for credit for time served was not updated.
At sentencing on September 28, 2011, the trial court did not mention presentence credits, but the minute order for that date shows that Alderete was awarded the amount of credit recommended in the two probation reports for both cases, i.e., 246 days of custody credit, plus 72 days of conduct credit pursuant to section 2933.1, subdivision (c), for a total of 318 days of presentence credit.
On October 12, 2011, the judgment in Case A was recalled. At the sentencing modification hearing October 13, 2011, the sentence in Case A was modified, but the trial court was again silent on the issue of presentence credits, and the minute order for that date does not mention them. The abstract of judgment reflects the credit awards contained in the minute order from the September 28, 2011, hearing, i.e., 318 days of total presentence credit in both cases.
Alderete contends he is entitled to additional custody credits in both Case A and Case B, for "days actually served" through and including the date he was sentenced in each case. Section 2900.5, subdivision (a), provides that, upon sentencing, defendants shall receive credit for all time in actual custody. (In re Marquez (2003) 30 Cal.4th 14, 19; see also Cal. Rules of Court, rule 4.472.) Counting each day served from January 5, 2011, through September 28, 2011, Alderete served 267 days. When concurrent terms are imposed in two cases in a combined sentencing proceeding, the defendant is entitled to credit for all days served in custody prior to sentencing against each term. (People v. Bruner (1995) 9 Cal.4th 1178, 1192, fn. 9.) A concurrent term was imposed in Case B. Therefore, as of the September 28, 2011, sentencing, Alderete was entitled to credit for 267 days served in both cases.
By this same analysis, Alderete is entitled to an additional 15 days presentence custody credits in Case A for the period of September 28, through October 13, 2011, when the trial court modified his sentence in that case. The result is a total of 282 presentence days in Case A. (See, e.g., People v. Johnson (2004) 32 Cal.4th 260, 266-268 [resentence on recall under § 1170, subd. (d), uses same method for credit calculation as for modification of sentence on remand].)
Finally, Alderete contends that the trial court erred in calculating presentence conduct credits in Case B. In that case, Alderete was awarded 246 actual days (which we have recalculated as 267, see above) and 72 days conduct credit. While conceding that the trial court correctly awarded conduct credit in Case A pursuant to section 2933.1, subdivision (c), he argues that the trial court erred in Case B by not awarding one-for-one presentence conduct credits based on former, now repealed, section 2933, subdivision (e).
Section 4019 specifies the rate at which prisoners in local custody may earn "'conduct credit'" against their sentences for good behavior. (People v. Brown (2012) 54 Cal.4th 314, 317 (Brown); People v. Ellis (2012) 207 Cal.App.4th 1546, 1549 (Ellis).)The Legislature has amended section 4019 multiple times between 2010 and the present. Before January 25, 2010, a defendant could earn a maximum of two days of local conduct credit for every four days spent in custody. (Brown, supra, at p. 318, fn. 4; former § 4019, subd. (f), as amended by Stats. 1982, ch. 1234, § 7, pp. 4553-4554.)
Effective January 25, 2010, amendments to section 4019 doubled the maximum rate to two days of presentence conduct credit for every two days spent in local custody. (Brown, supra, 54 Cal.4th at p. 318; People v. Lara (2012) 54 Cal.4th 896, 899 (Lara); Stats. 2009-2010, 3d Ex. Sess., ch. 28, § 50.) However, certain defendants who had suffered a prior conviction for a serious or violent felony as defined in section 667.5 and 1192.7, were ineligible for the accelerated rate and continued to accrue credits at the previously applicable rate. (Brown, supra, at pp. 318-319, fn. 5; former § 4019, subds. (b) & (c).)
Effective September 28, 2010, the Legislature again amended section 4019 to restore the "original, lower credit-earning rate" of two days of local conduct credit for every four days spent in custody. (Brown, supra, 54 Cal.4th at p. 318, fn. 3; former § 4019, subd. (f); Stats. 2010, ch. 426, § 2.) At the same time the Legislature amended section 2933 - which had previously applied only to prison worktime credits - to encompass presentence conduct credits for defendants who were ultimately sentenced to state prison. (Former § 2933, subd. (e); Stats. 2010, ch. 426, § 1; see Brown, supra, at p. 322, fn. 11.) Amended section 2933 provided that, notwithstanding section 4019, a prisoner was entitled to one-for-one presentence conduct credits, but excluded from this formula prisoners who had suffered prior serious or violent felonies or any prisoner required to register as a sex offender. (Former § 2933, subd. (e).) Such prisoners were subject to the less favorable two-for-four day rate.
Most recently, in conjunction with the 2011 realignment legislation, the Legislature repealed this version of section 2933, including subdivision (e) (Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 16) and amended section 4019 to its current version, operative October 1, 2011, to provide for a maximum of two days of conduct credit for every two days spent in actual confinement. (Ellis, supra, 207 Cal.App.4th at p. 1549; § 4019, subd. (f); Stats. 2011, ch. 15, § 482; Stats. 2011-2012, 1st Ex. Sess., ch. 12, § 35.) The current version of the law does not exclude prisoners who have suffered prior conviction for serious or violent felonies from this more generous formula. (See Lara, supra, 54 Cal.4th at p. 906, fn. 9; § 4019, subds. (f), (h); see generally §§ 2933.1, 2933.2.) Subdivision (h) of the current statute expressly provides that the new rate is to be applied prospectively only: "The changes to this section ... shall apply prospectively and shall apply to prisoners who are confined to a county jail ... for a crime committed on or after October 1, 2011. Any days earned by a prison prior to October 1, 2011, shall be calculated at the rate required by the prior law." (§ 4019, subd. (h).)
Alderete committed his offenses in Case B on April 20, 2010, and was sentenced on that case on September 28, 2011. Under the law in effect on either of those dates, he was entitled to one-for-one conduct credit under the then-applicable versions of sections 4019 and 2933, because neither of the offenses he pleaded to in Case B was a violent or serious felony, and he was not required to register as a sex offender. Alderete is therefore entitled to 267 days served and 267 days conduct credit, for a total of 534 days, in Case B.
F. Section 1202.5 Fine
At sentencing, the trial court imposed a fine of $40 pursuant to Section 1202.5. Alderete contends that the fine must be modified because only one $10 crime prevention fine was authorized.
Section 1202.5, subdivision (a) provides, in relevant part, that "[i]n any case in which a defendant is convicted of any of the offenses enumerated in Section 211, 215, 459, 470, 484, 487, 488 or 594, the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty or fine imposed." Although Alderete was convicted in Case A of one robbery (§ 211) and three burglaries (§ 459), the $10 crime prevention fine can be imposed only once in a case, rather than for each conviction in a case. (People v. Crittle (2007) 154 Cal.App.4th 368, 369-370.)
The section 1202.5 fine must therefore be reduced to $10. V. ABSTRACT OF JUDGMENT
Alderete contends that the abstract of judgment must be amended to correct certain clerical errors. The Attorney General concedes the errors and joins Alderete. We accept the concession and remand with orders to correct the abstract of judgment as follows. (People v. Mitchell (2001) 26 Cal.4th 181, 185)
A. Case A
Count 1
In part II of the Discussion, above, we determined that Count 1, first degree robbery, must be reduced to a conviction for second degree robbery. For that reason, we reduce the imposed sentence on Count 1 from the upper term of six years to the upper term of five years, as allowed by statute. (§ 213, subd. (a)(2).) Both the level of the offense and the reduced sentence must be noted in Section 1, Count 1, of the abstract of judgment.
Count 2
In part IV, section D of the Discussion, above, we determined that the sentence on Count 2 must be stayed pursuant to section 654. The abstract of judgment must be amended to reflect this stay in Section 1, Count 2. In addition, the enhancement attached to Count 2, a 10-year enhancement pursuant to section 12022.5, subdivision (a)(1) must also be stayed. The abstract of judgment must be amended to reflect this stay in Section 2, Count 2.
Count 5
In Count 5, the trial court selected the middle term of three years for the conviction and the middle term of four years for the firearm enhancement, and stayed punishment pursuant to section 654. The abstract of judgment does not include the length of the term in parenthesis in the column "Principal or Consecutive Time Imposed" (some capitalization omitted) in Section 1. It must be corrected to show "(3)." Also, on that same count, the columns for both "concurrent" and "stayed" are checked, although only the column for "stayed" should be checked.
Count 6
In Count 6, the trial court imposed a consecutive subordinate term of eight months, but the abstract of judgment erroneously indicates that a consecutive term of 16 months was imposed. The abstract of judgment must be amended in Section 1, Count 6, to reflect a consecutive term of eight months.
Count 8
In part IV, section B of the Discussion, we found that the five-year great bodily injury enhancement attached to Count 8 must be reduced to one year eight months. The abstract of judgment must be amended in Section 2, Count 8, to reflect the section 12022.7, subdivision (c) enhancement as "20 mos."
In part IV, section C of the Discussion, we found that the personal use of a deadly weapon enhancement attached to Count 8 must be reduced to four months. The abstract of judgment must be amended in Section 2, Count 8, to eliminate the reference to "PC12022.5(a)" and "16 mos" and corrected to reflect "PC 12022(b)(1)" and "4 mos."
Count 9
The trial court imposed the middle term of three years for the conviction in Count 9 and stayed punishment pursuant to section 654. The abstract of judgment must be corrected to include the length of the term in parenthesis, "(3)," in the column "Principal or Consecutive Time Imposed" (some capitalization omitted) in Section 1, Count 9. Also, the columns for both "concurrent" and "stayed" are checked for Count 9, and only the column for "stayed" should be checked.
Count 10
The trial court imposed the middle term of three years for the conviction in Count 10 and stayed punishment pursuant to section 654. The abstract of judgment must be corrected to include the length of the term in parenthesis, "(3)," in the column "Principal or Consecutive Time Imposed" (some capitalization omitted) in Section 1, Count 10. Also, the columns for both "concurrent" and "stayed" are checked for Count 10, and only the column for "stayed" should be checked.
In part IV, section A of the Discussion, above, we found that the great bodily injury enhancement pursuant to section 12022.7, subdivision (c) attached to Count 10, should be stricken because there was no jury finding on that allegation. The abstract of judgment must be amended to eliminate reference to "PC 12022.7(c)" and the attached "S" in Section 2, Count 10 of the abstract of judgment.
B. Case B
In Case B, Alderete was charged in Count 1 of receiving stolen property (§ 496, subd. (a)), and in Count 2 of possession of a completed check with intent to defraud (§ 475, subd (c).) Alderete entered a plea of no contest to these charges. The abstract of judgment Section 1 erroneously indicates that Alderete was convicted in Case B, Count 2 of a violation of section 487, subdivision (c), "Grand Theft." The "Section No." and "Crime" on that count must be corrected.
C. Total Time
Taking into account all of the above changes, the "total time" stated in the abstract of judgment in Section 8 must be changed to reflect 23 years 4 months.
D. Credit for Time Served
The presentence custody credits listed in Section 14 "Credit for Time Served" (some capitalization omitted) must be amended to provide that in Case A, Alderete is granted 282 days actually served, plus 72 days conduct credit, a total of 354 days. In Case B, it should state that Alderete is granted 267 days actually served, plus 267 days conduct credit, a total of 534 days.
E. Financial Obligation
In Section 9(c), the abstract of judgment must be amended to reduce the section 1202.5 fine from $40 to $10.
DISPOSITION
In Case A, Count 1 (§ 211), the conviction is modified to second degree robbery; the sentence imposed in Count 2 (§ 459) is stayed pursuant to section 654; and in Count 10, the great bodily injury enhancement (§ 12022.7, subd. (c)) is stricken. The section 1202.5 fine is reduced to $10. In Case A, the judgment is modified to reflect 282 actual days, 72 conduct days, and 354 total credit days. In Case B, the judgment is modified to reflect 267 actual days, 267 conduct days, and 534 total credit days. The trial court shall prepare an amended abstract of judgment reflecting these modifications, as well as the sentencing modifications detailed in part V of the Discussion, above, and forward a copy of the abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
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Franson, J.
WE CONCUR: ______________________
Gomes, Acting P.J.
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Kane, J.