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People v. Barrios

California Court of Appeals, Second District, Seventh Division
Mar 18, 2008
No. B193796 (Cal. Ct. App. Mar. 18, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALEXANDER BARRIOS, Defendant and Appellant. B193796 California Court of Appeal, Second District, Seventh Division March 18, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County. Eric Taylor, Judge. Los Angeles County Super. Ct. No. YA063190

Elisa A. Brandes, under appointment by the Court of Appeal for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan D. Martynec and Kenneth N. Sokoler, Deputy Attorneys General, for Plaintiff and Respondent.

ZELON, J.

A jury convicted defendant Michael Alexander Barrios of one count of assault with a deadly weapon (Pen. Code, § 254, subd. (a)(1)), and one count of attempted robbery (Pen. Code, §§ 664, 211.) He contends the trial court erred in (1) failing to give his complete Boykin-Tahl admonishments; (2) denying his Romero motion to strike a prior strike; (3) failing to stay his sentence on the attempted robbery count under section 654; and (4) calculating his presentence custody credits. We affirm the judgment of conviction, and remand the matter for resentencing.

All statutory references herein, unless otherwise noted, are to the Penal Code.

Boykin v. Alabama (1969) 395 U.S. 238; In re Tahl (1969) 1 Cal.3d 122.

People v. Superior Court (Romero) 13 Cal.4th 497.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A. Prosecution Case.

On October 28, 2005, at approximately 11:00 p.m., Georgina Farley and her husband Darrell Farley were driving to his former wife’s home in the 18300 block of Kingsdale Avenue in Torrance. They saw a man walking down the sidewalk with a wobbly gait. Georgina Farley remarked to her husband that it looked like the man had been drinking, but it did not look that way to Darrell Farley, who believed the man “was just kind of walking a little odd.” The Farleys parked in front of the former wife’s house. While her husband and son went into the house, Georgina Farley stayed behind to rearrange some of the luggage in the car.

Georgina saw a shadow, and a man came from behind the car with a black-handled pocket knife with a two to three-inch blade. The man was about two feet away and said, “Don’t scream. Give me any money or jewelry.” She tried to run, but bumped into the open car door and fell down. Defendant approached her, waving the knife back and forth, and demanded her ring. Georgina Farley screamed for her husband, who came out of the house. The man ran off.

At this time, Darrell Farley, who had gone into the house, came out because he had heard yelling. He saw a man straddling his wife. Darrell Farley yelled for the man to stop. The man looked at Farley, stood up, and Farley could see his face. Farley thought the man looked like the man they had seen walking oddly down the street earlier. Defendant did not take any of Georgina Farrell’s property.

Darrell Farley and a friend of the family ran after defendant. Farley yelled into the house for his former wife’s boyfriend, who was an off-duty police officer, to come out. The man had run off, so Farley followed him. His ex-wife’s boyfriend had followed him, and gave Farley his cell phone and told him to call 911 and give a description. After they lost defendant’s trail, they went back to the house.

After Georgina Farley ran into the house, Darrell Farley’s former wife, Sandra Farley, called 911. Georgina Farley gave her a description of the suspect as Hispanic, in his 20s or 30s, with a slight moustache, about five feet five, and wearing a hooded sweatshirt. About 15 minutes later, Officer Fisher of the Torrance police arrived, and Farley gave Officer Fisher a description of defendant. Later, police took her to a location where they showed her an individual in police custody. The person had on the same clothing as the man who had attacked her, and she identified him as her attacker. Police also took Darrell Farley to a field show up, where he identified defendant.

Both Georgina Farley and Darrell Farley identified defendant in court.

Officer Marc Sandoval of the Torrance police was partnered with Officer Stephen Jangaard. As they approached Kingsdale, they saw a blue Blazer turn off 182nd Street. They shone their spotlight into the vehicle and saw defendant. They made a U-turn to follow defendant. Defendant accelerated to 60 miles an hour and they gave chase through the parking lot of a housing complex. At a dead end, defendant stopped the car and jumped out. Officer Sandoval gave chase. He followed directions from the air unit to track defendant, and located defendant between two trailers in the trailer park. They detained defendant. A search of defendant’s car yielded two red Swiss-army knives, a utility box-cutting knife, and a small stainless steel utility plier with a bladed knife on it.

B. Defense Case.

The defense played an audio recording of the police radio dispatches from the night of the attempted robbery. They described the suspect as an Hispanic male, wearing either all black or a black sweater and blue jeans, and armed with a knife. The suspect was being chased by an off-duty officer and running northbound on Kingsdale. The parties stipulated defendant was born June 3, 1970.

DISCUSSION

I. BOYKIN-TAHL ERROR.

Defendant contends that his admission of his prior convictions lacked the three requisite Boykin-Tahl admonishments, and therefore his conviction must be reversed. (Boykin v. Alabama, supra, 395 U.S. at p. 243 & fn. 5 (Boykin); In re Tahl, supra, 1 Cal.3d 122 (Tahl).)

A. Factual Background.

Before trial, defendant admitted he suffered a 1990 conviction for assault (§ 245, subd. (a)(1)) and a 1992 conviction for robbery (§ 211). Defendant advised the court his attorney had explained the consequences of these admissions to him. The prosecution then asked,

Defendant had three prior criminal convictions. (1) a 1989 conviction for possession, manufacture, or sale of a dangerous weapon (§ 12020, subd. (a)); (2) a 1990 conviction for assault with a deadly weapon (§ 245, subd. (a)(1)); and (3) a 1992 conviction for robbery (§ 211). In connection with his Romero motion, discussed infra, defendant admitted the 1990 conviction resulted from a guilty plea.

“Sir, you are aware that by admitting these two prior convictions the People do not have to prove these prior convictions and you are waiving a jury trial or a court trial on the issue of guilty as to these two prior convictions? Do you understand that?

“THE DEFENDANT: Yes.

“[The prosecutor]: Sir, do you also realize that by admitting these two prior convictions today, that makes the current case, should you be convicted, to be a 3rd strike case within the meaning of sections 1170.12 (a) through (d) and 667 (b) through (i) as to both counts in this case?

“[Defense counsel]: Yes, he understands that’s the People’s positions. He’s not acknowledging that the prior convictions constitute strikes, but he admits he was convicted of those Code sections.”

B. Discussion.

In In re Yurko (1974) 10 Cal.3d 857 (Yurko), the Supreme Court held that before accepting a defendant’s admission of a prior conviction the court must give the three Boykin-Tahl admonishments and obtain waivers of: (1) the right to a trial on the fact of the prior conviction; (2) the right to remain silent, and (3) the right to confront adverse witnesses. (Id. at p. 863.) For nearly two decades after Yurko, lack of express advisement, and waiver, of all three Boykin-Tahl rights was viewed as error requiring automatic reversal. (People v. Mosby (2004) 33 Cal.4th 353, 360 (Mosby).)

In People v. Howard (1992) 1 Cal.4th 1132 (Howard), the Supreme Court revisited the issue and came to a different conclusion, adopting a test of whether “the record affirmatively shows that [the admission] is voluntary and intelligent under the totality of the circumstances,” applying “the test used to determine the validity of guilty pleas under the federal Constitution.” (Id. at p. 1175.) “In replacing the old rule, the focus was shifted from whether the defendant received express rights advisements, and expressly waived them, to whether the defendant’s admission was intelligent and voluntary because it was given with an understanding of the rights waived.” (Mosby, supra, 33 Cal.4th at p. 361.) After the Howard decision, we must go beyond the courtroom colloquy to assess a claim of Yurko error. If the transcript does not reveal complete advisements and waivers, we examine the record of the entire proceeding to assess whether the defendant’s admission of the prior conviction was intelligent and voluntary in light of the totality of circumstances. (Ibid.)

In the case of incomplete Boykin-Tahl admonishments, Mosby held that a defendant’s prior experience with the criminal justice system was relevant to whether the defendant knowingly waived constitutional rights. Such prior experience was relevant to a “recidivist’s ‘knowledge and sophistication regarding his [legal] rights.’” (Mosby, supra, 33 Cal.4th at p. 365.) In Mosby, althoughthe defendant was only advised of his right to a trial on the prior conviction, the court found no error because that prior conviction was based upon a guilty plea, at which time the defendant would have received his Boykin-Tahl advisements; further he had just participated in a trial at which he would have understood his right to remain silent and confront witnesses. (Id. at p. 364.)

In the silent record cases, where the record showed no express advisements and waiver, Mosby concluded it could not be inferred the defendant made a knowing and intelligent waiver. (Id. at p. 362.)

Here, defendant admitted his prior conviction before trial. Unlike Mosby, he had not just participated in a trial where he would have been aware of his rights to remain silent and to confront witnesses. However, like Mosby, one of defendant’s prior convictions resulted from a guilty plea, at which he would have been given his Boykin/Tahl advisements; further, defendant had apparently participated in trials in connection with the other convictions, in which he would have understood his rights. (Mosby, supra, 33 Cal.4th at p. 365.) This demonstrates that under the totality of the circumstances, defendant knowingly and intelligently admitted his prior conviction despite the incomplete admonishments he received. (Ibid.)

II. SENTENCING UNDER ROMERO.

Defendant contends the trial court did not understand its discretion to dismiss a strike under People v. Superior Court (Romero) 13 Cal.4th 497, and therefore the matter must be remanded for resentencing.

A. Factual Background.

Defendant made a Romero motion to strike a 1990 conviction for assault that resulted from a guilty plea. Defendant argued that at the time of the plea, defendant was 19 years old, and questionable circumstances surrounded the making of the plea. Defendant offered letters from the members of defendant’s church for the court’s consideration. The court declined stating “[t]hose are things I can’t consider in a Romero motion.” The court noted that defendant’s oldest convictions were 14 and 16 years prior, and that it had been 10 years since defendant had gotten out of prison. However, the court found that “[w]e are here with another robbery,” an “[a]ttempted armed robbery with a knife, vulnerable victim.” The court denied the motion.

B. Discussion.

Under section 1385, the trial court has discretion to strike a prior felony conviction allegation in furtherance of justice. (People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) In deciding whether to strike a prior conviction under the Three Strikes law, the court “must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of [defendant’s] background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth.” (People v. Williams (1998) 17 Cal.4th 148, 161.) The court’s failure to dismiss or strike a prior conviction is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374-376 (Carmony).) A trial court will be found to have abused its discretion only when it is not aware of its discretion to dismiss or where it considers impermissible factors in declining to dismiss. (Id. at p. 378.) The burden is on the party attacking the sentence to show that the sentencing decision was irrational or arbitrary. The trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)

Here, the trial court was not “unaware of its discretion to dismiss,” nor did it “consider impermissible factors” in declining to dismiss. Rather, it was under the mistaken impression it could not consider defendant’s proffered letters from the members of his church. While the trial court was mistaken in this regard, its refusal to consider these letters does not amount to an abuse of discretion under Carmony.

The trial court, under Williams, was required to consider “whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of [defendant’s] background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies” (People v. Williams, supra, 17 Cal.4th at p. 161.) Defendant’s proffered letters constituted particulars of his background, character, and prospects, and the trial court should have considered them. However, the error is harmless, as the record establishes defendant’s prior criminal history involving weapons and the similarity of defendant’s prior convictions to the current offense, and supports the conclusion defendant is not outside Three Strikes scheme’s spirit. (Ibid.)

III. PENAL CODE SECTION 654.

The trial court imposed a 25 year-to-life sentence for assault on count 1, and a concurrent 25 year-to-life sentence for the attempt robbery on count 2. Defendant contends his sentence violates section 654 because the assault was the means used to attempt the robbery, and therefore, one of his sentences should be stayed. Respondent concedes this point, and asks us to stay the sentence on count 2 because the assault was committed for the purpose of carrying out the robbery.

Penal Code section 654 provides that “[a]n 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 . . .” In sum, section 654 prohibits punishment for two crimes arising from a single, indivisible course of conduct. (People v. Latimer (1993) 5 Cal.4th 1203, 1208.) Thus, if all of the crimes committed were merely incidental to or were the means of accomplishing or facilitating a single objective, the defendant may receive only one punishment. (Ibid.) Where an assault is incidental to a robbery and not motivated by a separate criminal objective, but was committed in order to accomplish the robbery, the defendant may be punished for only one of the crimes. (People v. Martinez (1984) 150 Cal.App.3d 579, 606, overruled on other grounds in People v. Hayes (1990) 52 Cal.3d 577, 628, fn.10.)

We agree with defendant that the record contains no evidence that he harbored any objective aside from committing a robbery, and therefore the sentence on count 2 must be stayed.

IV. RECALCULATION OF CUSTODY CREDITS.

At the sentencing hearing, the trial court limited defendant’s custody credits to 85 percent because it was a Three Strikes case. Defendant contends the trial court erred in calculating his custody credits under section 2933.1 because his current offense is not a violent felony under section 667.5, subdivision (c); if properly calculated under section 4019, he is entitled to 265 days of actual custody time plus 132 of conduct credit.

Respondent concedes this point, and we agree with defendant’s analysis. Section 2933.1, subdivision (a) provides, “[n]otwithstanding any other law, any person who is convicted of a felony offense listed in subdivision (c) of section 667.5 shall accrue no more than 15 percent of worktime credit, as defined in section 2933.” Section 667.5, subdivision (c) does not include attempted robbery and assault with a deadly weapon. Under section 4019, defendant is therefore entitled to 132 days of good time/work time for a total of 397 days of presentence custody credit.

DISPOSITION

The judgment of conviction is affirmed, and the judgment is modified to reflect defendant’s presentence custody credits, and the stay on count 2, in accordance with this opinion. The clerk of the superior court is ordered to prepare an amended abstract of judgment as set forth in this opinion and to forward a copy to the Department of Corrections.

We concur: PERLUSS, P. J.,WOODS, J.


Summaries of

People v. Barrios

California Court of Appeals, Second District, Seventh Division
Mar 18, 2008
No. B193796 (Cal. Ct. App. Mar. 18, 2008)
Case details for

People v. Barrios

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ALEXANDER BARRIOS…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Mar 18, 2008

Citations

No. B193796 (Cal. Ct. App. Mar. 18, 2008)