Opinion
C076619
05-15-2017
THE PEOPLE, Plaintiff and Respondent, v. DERRIK MICHAEL BLANTON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. CM036623)
A jury convicted defendant Derrik Michael Blanton of first degree felony murder (count 1; Pen. Code, § 187, subd. (a)) and attempted robbery (count two; § 211) of John Ball, and three counts of assault with a semiautomatic firearm (counts 3, 4, & 5; § 245, subd. (b)) on Charles O., Catina D., and Jasmine S. The jury found true the allegations that defendant personally and intentionally discharged a firearm causing great bodily injury and death as to counts 1 and 2 (§ 12022.53, subd. (d)), that he personally used a firearm as to counts 3, 4, and 5 (§ 12022.5, subds. (a) & (d)), and that he personally inflicted great bodily injury as to counts 3 and 4 (§ 12022.7, subd. (a)).
Further statutory references to sections of an undesignated code are to the Penal Code.
The trial court sentenced defendant to a term of 25 years to life on count 1 plus 25 years to life on the enhancement to that count, plus 25 years to life on the count 2 enhancement, for a total indeterminate term of life with a minimum parole eligibility of 75 years. The trial court also sentenced defendant to a consecutive term of eight months on count 2 (attempted robbery), a consecutive term of nine years on count 3 (assault with a firearm) plus 13 years consecutive for the two enhancements to that count, and two consecutive terms of two years on counts 4 and 5 (assault with a firearm) plus a four-year four-month consecutive term for the enhancements to count 4 and a three-year four-month consecutive term for the enhancement to count 5. The total determinate term to which defendant was sentenced was 34 years 4 months.
Defendant raises a claim of juror misconduct, which is forfeited because he did not raise the issue below. Defendant argues the trial court failed to specify that his sentences were to run consecutively, and that he should have the benefit of section 669, subdivision (b), which provides that the second or subsequent judgment shall run concurrently where the court fails to determine how the terms shall run. We shall conclude that we may infer from the record that the court determined the sentences should run consecutively. We agree with defendant's argument that section 654 prohibits a separate sentence for attempted robbery when defendant was convicted of and sentenced for murder on a theory of felony murder in the course of the attempted robbery. We shall therefore stay the sentence for count 2 and its attendant enhancement.
FACTUAL AND PROCEDURAL BACKGROUND
One evening, Charles O. was in the bedroom of his apartment in Oroville with Joseph Adams, where Adams was teaching Charles how to use his computer. Charles's roommate, Ball, was in the living room with Catina D., Tamara Marolla, Jasmine S., and Nadine Finkes.
Defendant entered the apartment, carrying a gun and demanding money from Ball and demanding Ball open the safe. Defendant shot at the ground, and the bullet grazed Jasmine's leg. Jasmine ran into Charles's bedroom, screaming that she had been shot. Charles went into the living room, and defendant fired the gun at the floor again. Defendant pointed the gun at Charles and Ball, ordering Ball to open the safe. Ball responded that the safe was already open, but when defendant grabbed the safe door, the handle locked itself. Defendant ordered Ball to open the safe again. Charles told defendant to leave, and that this was "not going to happen." Defendant stepped toward the apartment door, Ball and Charles followed him, and defendant shot Charles in the chest and shot Ball four times in the head, torso, and foot. Ball died from his injuries.
DISCUSSION
I
Juror Misconduct
Defendant claims his right to a fair and impartial jury was violated as a result of the following incident. At the end of the second day of trial, the court deputy advised the court that when he collected the jurors' notebooks, he noticed that Juror No. 3's notebook had an imprint on the front cover. The trial court stated it looked as though a piece of paper had been placed on top of the notebook and someone had written "guilty first degree" on the paper, leaving an impression of the words on the notebook cover below. The deputy stated he did not remember the imprint being there prior to handing out the notebooks. There was nothing written inside the notebook.
The next day the trial court brought Juror No. 3 into to the courtroom and asked her if she knew how the impression got on the notebook. She responded: "No. I have not written anything in the notebook, and it's either been sitting in my basket or right here on top of the rail there." The trial court asked her if she had written anything on a piece of paper on top of the notebook that would have left an impression. She said, "No, I didn't." In response to questions, Juror No. 3 assured the court that she had not formed any opinion of defendant's guilt or innocence, had an open mind, and felt capable of participating in the deliberation process. The court then asked defense counsel if he had any questions, to which defense counsel responded, "No, I am comfortable with the Court's line of questioning." After Juror No. 3 left the courtroom, defense counsel stated, "Your Honor, we are comfortable with the juror's representations and the Court's questioning, so we are not going to make a challenge at this time."
The trial court noted that the deputy had a new notebook for Juror No. 3, then said, "Maybe I'll talk to administration about not reusing the notebook or tearing pages out and just using a brand new notebook in every case."
Defendant now argues that this misconduct violated his constitutional right to a fair and impartial jury, and that the trial court's inquiry into the juror's bias was inadequate.
There is absolutely no evidence of juror misconduct in this case from which a presumption of prejudice would arise. On these facts it is more likely that the impression was left on the notebook by a juror in a prior case, since the court apparently reuses notebooks from one trial to another.
In any event, defendant forfeited any argument of juror misconduct or any argument that the trial court failed to properly investigate juror misconduct. In People v. Lewis (2009) 46 Cal.4th 1255, 1308, the Supreme Court held that where a defense counsel had agreed with the trial court's questioning of a juror, stated at the conclusion of the inquiry that he had no questions, and had not objected to the juror's continued service or requested a mistrial on the ground of juror misconduct, the defendant had forfeited a claim that his constitutional right to an impartial jury had been violated. The case for forfeiture is even stronger here because defense counsel state he was "comfortable with the Court's line of questioning," and affirmatively stated defendant would not "make a challenge at this time."
Citing People v. Cowan (2010) 50 Cal.4th 401, 506-507, defendant argues he did not forfeit his claim that the court made an inadequate inquiry into juror misconduct. He is mistaken. People v. Cowan stated that whether or not the defendant requests an inquiry, the trial court has a duty to conduct an investigation "when the court possesses information that might constitute good cause to remove a juror . . ." (Id. at p. 506, italics added.) Here, the court did conduct an investigation, and correctly concluded that there was no evidence of juror misconduct. The investigation having turned up no evidence that might constitute good cause to remove the juror, the trial court had no further duty to investigate, and defendant forfeited any such claim on appeal.
II
Penal Code Section 654The trial court sentenced defendant to an indeterminate term of 25 years to life on the charge in count 1 of first degree felony murder in the attempted commission of the crime of robbery. The trial court sentenced defendant to an additional eight-month sentence for count 2, the underlying attempted robbery, and another 25 years to life sentence for the enhancement to count 2--intentional discharge of a firearm resulting in death.
Defendant also received a 25 years to life sentence on the enhancement to count 1, personally and intentionally discharging a firearm causing great bodily injury and death.
Defendant argues section 654 prohibits his punishment for both the felony murder in the attempted commission of a robbery and the attempted robbery. The People concede this argument and we agree.
Section 654 provides in 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." (§ 654, subd. (a).) Section 654 prohibits punishment both for felony murder and the underlying felony, and the attendant enhancement must also be stayed. (People v. Bracamonte (2003) 106 Cal.App.4th 704, 708-709, disapproved on another point in People v. Gonzalez (2008) 43 Cal.4th 1118, 1130, fn. 8.) We shall stay the sentence on count 2 and its enhancement.
III
Consecutive Sentences
Defendant argues the trial court did not properly designate which sentence terms were being imposed consecutively, and that pursuant to section 669, subdivision (b), the terms must be deemed concurrent. We conclude defendant has forfeited this argument, but in any event we find ample evidence in the record that the trial court determined to impose consecutive sentences.
Section 669 provides in pertinent part: "When a person is convicted of two or more crimes, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same judge or by different judges, the second or other subsequent judgment upon which sentence is ordered to be executed shall direct whether the terms of imprisonment or any of them to which he or she is sentenced shall run concurrently or consecutively. . . . [¶] . . . Upon the failure of the court to determine how the terms of imprisonment on the second or subsequent judgment shall run, the term of imprisonment on the second or subsequent judgment shall run concurrently." (§ 669, subds. (a) & (b).)
The probation report recommended the sentence that the trial court imposed: "Life With a Minimum Parole Eligibility of 75 years, Plus 34 years, 4 months." In explaining the calculation of the proposed sentence, the probation report specified that each indeterminate term was consecutive.
At the sentencing hearing, the trial court began by stating that it had read and considered the probation report, and its "intended ruling is upper-term state prison, as outlined in the probation officer's report." The trial court set forth the length of each term imposed, and stated that the aggregate sentence was "34 years and 4 months to be served prior to commencing the sentence on the indeterminate sentencing -- or the indeterminate sentence of life with the minimal parole date after 75 years." The trial court even set forth its reasons for imposing consecutive sentences. The court stated: "In assessing whether to propose consecutive rather than concurrent sentences, the Court has considered Rule of Court 4.425. I find the convictions for which sentences are to be imposed are numerous, and that there were multiple victims justifying the consecutive sentences that I've imposed."
California Rules of Court, rule 4.425 sets forth the criteria affecting the decision to impose consecutive rather than concurrent sentences. --------
The abstract of judgment shows each sentence term runs consecutively, and shows the total determinate term to be 34 years 4 months, and the indeterminate term to be 75 years to life--the same as the aggregate term announced by the trial court.
The Supreme Court has held that when a trial court fails to give reasons for its discretionary sentencing choices, the issue cannot be raised on appeal unless it was raised before the trial court. (People v. Scott (1994) 9 Cal.4th 331, 348-353.) This "waiver doctrine" applies "to claims involving the trial court's failure to properly make or articulate its discretionary sentencing choices." (Id. at p. 353.) Defendant apparently felt the sentence articulated by the trial court needed no clarification, and his failure to raise the issue below resulted in a forfeiture of the issue on appeal.
In any event, section 669 is inapplicable where it is apparent that the trial court intended to impose a consecutive sentence. (People v. Edwards (1981) 117 Cal.App.3d 436, 451-452.) In People v. Edwards, the defendant made the same argument made here. The court held section 669 was inapposite because it was clear from the record that the trial court intended to impose a consecutive sentence. (Edwards, at pp. 451-452.) Here, the probation report recommended consecutive indeterminate terms and the trial court stated it was following the probation report. The court announced the aggregate sentence term, and that aggregate sentence is consistent with consecutive sentences. The trial court even stated its reasons for imposing consecutive sentences.
It is clear from this record that the trial court intended to run defendant's sentences consecutively. Section 669, subdivision (b) mandates concurrent sentences only upon the trial court's "failure" to "determine how the terms of imprisonment" shall run, not when the trial court fails to expressly state that the sentences are consecutive. The record here does not lend itself to an interpretation that the trial court intended to impose concurrent sentences, or that it simply failed to consider whether the sentences would be concurrent or consecutive. We therefore reject defendant's argument that the sentences must be concurrent.
DISPOSITION
Defendant's sentence is modified by staying the eight-month sentence imposed for the attempted second degree robbery and its attendant 25-year-to-life enhancement, said stay to become permanent upon defendant's service of the remainder of his sentence. In all other respects, the judgment is affirmed. The trial court is directed to prepare an amended abstract reflecting the judgment as modified by this court and to forward a certified copy of the abstract to the Department of Corrections and Rehabilitation.
/s/_________
Blease, J. We concur:
/s/_________
Raye, P. J.
/s/_________
Nicholson, J.