Opinion
H045744
09-30-2019
THE PEOPLE, Plaintiff and Respondent, v. CLARENCE AROSTEGUI, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1638090)
A jury convicted defendant Clarence Arostegui of first degree burglary, attempted first degree burglary, and receiving stolen property. Defendant waived his right to a jury trial on prior conviction allegations. Following a court trial on those allegations, the trial court found true that defendant had suffered a prior strike conviction and a prior serious felony conviction. The trial court sentenced defendant to a prison term of 10 years four months. That term included a consecutive five-year enhancement under Penal Code section 667, subdivision (a)(1) for the prior serious felony conviction.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant challenges the validity of his jury trial waiver. He also requests remand for resentencing in light of recent amendments to sections 1385, subdivision (b) and 667, subdivision (a), which grant trial courts the discretion to strike prior serious felony convictions for purposes of the five-year enhancement. We reject defendant's challenge to his jury trial waiver but reverse and remand the matter for resentencing.
I. BACKGROUND
A. Factual Summary
Diane K. testified that when she returned home from work on February 22, 2016, she found a window in her San Jose home broken and her bedroom ransacked. Jewelry, $250 in cash, a container of loose change, and gift cards were missing. Diane estimated that the stolen items were worth approximately $8,000.
Eleanor A. testified that, on the morning of February 23, 2016, she heard a loud banging noise while inside her home in San Jose. She walked toward the noise and saw a man banging on the glass portion of the back door. Based on the manner in which the man was hitting the glass, Eleanor believed he was trying to break in. She opened a window and told the man to leave, which he did. At trial, Eleanor identified defendant as the man who was banging on her door. After defendant left, Eleanor called police.
Later that morning, the responding police officer located defendant passed out on a bus stop bench approximately one block from Eleanor's home. Defendant had a backpack over one shoulder and a second bag on the bench beside him; there were empty liquor bottles nearby. Defendant smelled of alcohol and was nonresponsive. Eleanor came to the bus stop and identified defendant as the man who had been banging on her door.
Police later searched the bags found with defendant. Inside they found paperwork bearing defendant's name, jewelry, loose change, and a Costco card belonging to Diane K., among other items. Some of the jewelry in defendant's possession belonged to Diane K. and had been missing from her home since February 22, 2016.
B. Procedural History
The Santa Clara County District Attorney charged defendant with first degree burglary (§§ 459, 460, subd. (a)); count 1), attempted first degree burglary (§§ 459, 460, subd. (a)), 664; count 2), receiving stolen property (§ 496, subd. (a); count 3), and vandalism (§ 594; count 4). The information alleged that defendant had previously been convicted of burglary (§§ 459, 460, subd. (a)), an offense that qualified as a strike (§ 667, subds. (b)-(i)) and a serious felony (§ 667, subd. (a)). The vandalism charge was later dismissed on the prosecutor's motion.
The trial court granted defendant's pretrial request for a bifurcated trial on the prior conviction allegations and accepted his waiver of a jury trial on those allegations. Before accepting the waiver, defense counsel and the trial court conducted a brief colloquy with defendant as follows:
"[DEFENSE COUNSEL]: Mr. Arostegui, do you understand that you have the right to have a jury trial to determine your innocence or guilt on the prior conviction for residential burglary?
"[DEFENDANT]: Yes, I do.
"[DEFENSE COUNSEL]: And do you waive your right to have that issue decided by the jury?
"[DEFENDANT]: Yes, I do.
"[DEFENSE COUNSEL]: Is that sufficient, Your Honor?
"THE COURT: Just one follow-up. The prior is alleged as both a strike prior as well as what's known as a Prop 8 prior. You're waiving your right to have a jury make decisions as to both of those; is that correct?
"[DEFENDANT]: Correct.
"THE COURT: And you're protecting your right to have that decided by the Court; is that correct?
"[DEFENDANT]: Yes, Your Honor."
The case proceeded to a jury trial on the charged offenses. The jury returned guilty verdicts on the three remaining counts on June 1, 2017. The court held a bench trial on the prior conviction allegations on June 30, 2017. At that trial, the court admitted into evidence a certified minute order in Santa Clara County case No. B158122 dated September 16, 2015; a certified plea waiver form in the same case number, also dated September 16, 2015; and a certified sentencing minute order in the same case number dated November 19, 2015. No other evidence was submitted, and defense counsel offered no argument. The court found true that defendant had previously been convicted of residential burglary in violation of section 667, subdivision (a). The court further found that the burglary conviction qualified as a strike offense and as a serious felony.
Defendant filed a Romero motion to strike his prior conviction. On March 27, 2018, the trial court denied that motion and sentenced defendant to a total prison term of 10 years four months. The court imposed the low term of two years on the count 1 first degree burglary conviction, doubled to four years by the Three Strikes law. The court imposed 16 months (one third the middle term of four years) on count 2, to run consecutively. And the court imposed no additional punishment for count 3, finding that section 654 applied. Finally, the court imposed a five-year enhancement under section 667, subdivision (a)(1) for the prior serious felony conviction.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497. --------
Defendant timely appealed.
II. DISCUSSION
A. Waiver of Statutory Jury Trial Right on Prior Conviction Allegations
Defendant contends he did not knowingly and voluntarily waive his right to a jury trial on the prior conviction allegations because he was not adequately advised as to the right. In particular, he notes that he was not told that a jury is made up of 12 community members, that he could participate in selecting the jurors, or that all 12 jurors must unanimously agree on a verdict. Defendant says his fundamental constitutional right to a jury trial accordingly was violated, that the error was structural, and that it requires reversal without regard to whether he suffered prejudice. The Attorney General responds that defendant's right to a jury trial on the prior conviction allegations was statutory, not constitutional. The Attorney General argues that, accordingly, defendant forfeited the issue by failing to object below, the claim lacks merit, and any error was harmless.
1. Defendant Forfeited His Statutory Jury Trial Right
The Sixth Amendment right to a jury trial requires that "any fact that increases the penalty for a crime beyond the prescribed statutory maximum . . . be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) That general rule does not apply to "the fact of a prior conviction." (Ibid.) Thus, the Sixth Amendment is not implicated where a sentencing court " 'merely identif[ies] a prior conviction' " and adds punishment on that basis. (People v. Gallardo (2017) 4 Cal.5th 120, 135.) By contrast, the federal constitutional "jury trial right is violated when a court adds extra punishment based on factfinding that goes 'beyond merely identifying a prior conviction' by 'tr[ying] to discern what a trial showed, or a plea proceeding revealed, about the defendant's underlying conduct.' " (Ibid., quoting Descamps v. United States (2013) 570 U.S. 254.)
Here, the trial court merely determined the fact of defendant's prior conviction. Defendant does not contend the court engaged in any impermissible judicial factfinding. Therefore, defendant did not have a constitutional right to a jury trial on the prior conviction allegations.
Defendant did have a statutory right to a jury trial on the prior conviction allegations. (§ 1025; People v. Lloyd (2015) 236 Cal.App.4th 49, 57, fn. 7.) But he was required to object below to the discharge of the jury or the commencement of the court trial to preserve the claim that his waiver of that right was ineffectual. (People v. Grimes (2016) 1 Cal.5th 698, 738.) He did not object; therefore, the claim is forfeited.
2. Any Error Was Harmless
Notwithstanding defendant's failure to preserve the claim for appellate review, and even if his waiver was invalid, his claim on appeal nevertheless fails because he suffered no prejudice. State law errors, including the denial of a state statutory right to a jury trial on prior conviction allegations, are reviewed for prejudice under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Epps (2001) 25 Cal.4th 19, 29 (Epps) [applying Watson to erroneous denial of statutory right to a jury trial on prior conviction allegations].)
Under Watson, reversible error exists where "it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error." (Watson, supra, 46 Cal.2d at p. 836.) In this context, a "reasonable probability" is a reasonable chance, more than an abstract possibility; it need not be more likely than not. (People v. Wilkins (2013) 56 Cal.4th 333, 351.)
It is not reasonably probable that a result more favorable to defendant would have been reached had the jury, instead of the court, been tasked with determining whether defendant had previously been convicted of burglary. At the trial on the prior conviction allegations, the prosecutor submitted a certified minute order, a certified plea form, and a certified sentencing minute order evidencing defendant's prior conviction. Defense counsel offered no argument that these documents failed to prove the allegations. "Under those circumstances, the trial court's error could not possibly have affected the result." (Epps, supra, 25 Cal.4th 19, 29-30 [denial of statutory right to a jury trial on prior conviction allegations held harmless under Watson where "prior conviction records . . . clearly describing the alleged convictions" were admitted into evidence].)
B. Remand for Resentencing
The court found true the allegation that defendant had suffered a prior serious felony conviction and imposed a consecutive five-year term under section 667, subdivision (a)(1), as it was statutorily required to do at the time of defendant's sentencing. (Former § 667, subd. (a)(1) ["In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction which includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively"]; former § 1385, subd. (b) ["This section does not authorize a judge to strike any prior conviction of a serious felony for purposes of enhancement of a sentence under Section 667"].) "On September 30, 2018, the Governor signed Senate Bill 1393 which, effective January 1, 2019, amends sections 667[, subdivision] (a) and 1385[, subdivision] (b) to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.)" (People v. Garcia (2018) 28 Cal.App.5th 961, 971 (Garcia).)
The amendments to sections 667, subdivision (a) and 1385, subdivision (b) apply retroactively to defendant because his case was not final at the time they took effect. (Garcia, supra, 28 Cal.App.5th at p. 973; People v. Jones (2019) 32 Cal.App.5th 267, 272 (Jones); People v. Jimenez (2019) 32 Cal.App.5th 409, 426; see In re Estrada (1965) 63 Cal.2d 740, 744 ["If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies"].)
The parties dispute whether remand is appropriate in this case. " 'Defendants are entitled to sentencing decisions made in the exercise of the "informed discretion" of the sentencing court. [Citations.] A court which is unaware of the scope of its discretionary powers can no more exercise that "informed discretion" than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record.' [Citation.] In such circumstances, [our Supreme Court has] held that the appropriate remedy is to remand for resentencing unless the record 'clearly indicate[s]' that the trial court would have reached the same conclusion 'even if it had been aware that it had such discretion.' [Citations.]" (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Here, the trial court imposed the low term on count 1 and made no statements from which we can infer that it would have declined to strike defendant's prior serious felony conviction for sentencing purposes if it had had the discretion to do so. (Cf. People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [declining to remand for resentencing because "the trial court indicated that it would not, in any event, have exercised its discretion to lessen the sentence. . . . by imposing two additional discretionary one-year enhancements" and describing the defendant as " 'the kind of individual the law was intended to keep off the street as long as possible' "].) Jones, on which the Attorney General relies, is distinguishable. There, the court imposed the maximum possible sentence and stated that it "took 'great satisfaction' in imposing the 'very lengthy sentence' it imposed." (Jones, supra, 32 Cal.App.5th at p. 275.) The trial court in this case did not impose the maximum sentence, instead exercising its discretion to impose the low term on count 1. And while the court denied the Romero motion in view of defendant's "increase [in] criminality" and "poor" performance on probation, it made no statement like the one in Jones. Accordingly, remand is appropriate in this case to allow the trial court to exercise its discretion as to whether to strike defendant's prior serious felony conviction for sentencing purposes.
III. DISPOSITION
The judgment is reversed and the matter is remanded to the superior court with directions to resentence defendant in light of sections 667, subdivision (a) and 1385, subdivision (b), as amended by Senate Bill No. 1393.
/s/_________
ELIA, ACTING P. J. WE CONCUR: /s/_________
MIHARA, J. /s/_________
GROVER, J.