Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County. No. 09CM7160, Timothy S. Buckley, Judge.
Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Richard J. Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Wiseman, Acting P.J., Dawson, J., and Detjen, J.
INTRODUCTION
Appellant, Curley Broussard, was charged in an information filed on February 22, 2010, with battery by a prisoner on a non-confined person (Pen. Code, § 4501.5). The information alleged a prior serious felony conviction within the meaning of the three strikes law. Between March 5, 2010, and September 15, 2010, Broussard filed six Marsden motions. At the conclusion of a jury trial, Broussard was found guilty of the battery allegation. In a bifurcated proceeding, the jury found the allegation of the prior serious felony conviction to be true.
Unless otherwise indicated, all statutory references are to the Penal Code.
People v. Marsden (1970) 2 Cal.3d 118.
On September 23, 2010, the trial court denied Broussard’s request to strike the prior serious felony allegation pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The court sentenced Broussard to prison for three years, doubling it to six years pursuant to the three strikes law. The sentence was ordered to be served consecutively to Broussard’s sentence for second degree murder. We are reviewing this appeal pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende).
Because Broussard was serving a sentence for second degree murder when he was tried for the instant offense, he was not entitled to custody credits for his incarceration during these proceedings. (See In re Joyner (1989) 48 Cal.3d 487.) Second degree murder is a serious felony pursuant to section 667.5, subdivision (c)(1). Broussard, therefore, is not entitled to additional custody credits pursuant to section 4019, as amended effective January 25, 2010, because such credits may not be awarded to one convicted of a violent or serious felony. (§ 4019, subds. (b)(2) & (c)(2).)
MARSDEN MOTIONS
On March 5, 2010, Broussard made his first Marsden motion. Broussard explained to the court that he was in a personal conflict with his attorney because Broussard believed his incarceration in prison was illegal. Broussard characterized his murder conviction as a miscarriage of justice. Broussard complained about an offer from the prosecutor for six additional years in prison for the current offense. Broussard thought his attorney, Robert Stover, had a personality conflict with him but Stover explained he had no such conflict with Broussard. Broussard was upset that he was not given access to a law library.
Stover stated he still wanted to represent Broussard. Stover explained that the only problem he had with Broussard was Broussard’s tendency to focus on issues other than those affecting his case. The court denied the Marsden motion.
Broussard filed a Marsden motion on May 12, 2010. On May 12, 2010, Stover informed the court an investigator had been appointed and that Broussard wanted Stover to research his commitment for murder rather than the current offense. Stover told the court Broussard had been evaluated pursuant to section 1368 and was found competent. Stover explained there was no merit to Broussard’s argument that he was unlawfully detained in prison. Broussard continued to maintain that he was illegally detained. The court denied the motion.
Broussard renewed his Marsden motions on June 1, 2010, August 16, 2010, August 17, 2010, and September 15, 2010. On June 1, 2010, Stover explained at length that he found no legal basis to tie Broussard’s murder conviction to the instant action and repeatedly explained this to Broussard. Stover did not believe there was any merit to Broussard’s double jeopardy argument. In each hearing, Broussard maintained that double jeopardy applied to his case or that he was wrongly incarcerated. At the August 17, 2010, hearing, Broussard also argued that the prison guard he allegedly assaulted had physically attacked him in the past and had threatened him. Stover explained to the court that threats remote in time would not be a sufficient basis for self-defense. Each Marsden motion was denied.
Broussard apparently had a writ proceeding before the United States District Court, Central District, challenging his conviction for murder.
FACTS
On February 13, 2009, at 6:00 a.m., Corcoran State Prison Correctional Officer Ray Cortez was performing a security check. When Cortez came to Broussard’s cell, cell 64, Cortez noticed Broussard was holding a state issued cup made of hard brown plastic. Broussard raised the cup and threw the contents of the cup at Cortez. A hot liquid, which smelled like coffee, hit Cortez’s clothing and skin. Cortez went to the acute care hospital in the prison. Cortez’s skin remained red until the following morning. Although Cortez had verbal disputes with Broussard in the past, this was the first time Broussard physically attacked him.
Antonia Palos, a registered nurse at the hospital, observed that Cortez suffered a first-degree burn on his neck. There were significant red spots on Cortez that Palos described as hot liquid burns.
During the bifurcated hearing on the truth of Broussard’s prior conviction for murder, the People submitted Broussard’s section 969b packet as evidence of his prior murder conviction. Broussard’s counsel objected to admission of the packet into evidence arguing that it did not clearly identify Broussard as the perpetrator of the prior offense. The trial court overruled defense counsel’s objection and found that Broussard was the person identified in the packet. The packet was received into evidence. Broussard testified that he had not been convicted of murder. The jury found the prior conviction allegation true.
APPELLATE COURT REVIEW
Broussard’s appointed appellate counsel has filed an opening brief that summarizes the pertinent facts, raises no issues, and requests this court to review the record independently. (Wende, supra, 25 Cal.3d 436.) The opening brief also includes the declaration of appellate counsel indicating that Broussard was advised he could file his own brief with this court. By letter on December 13, 2010, we invited Broussard to submit additional briefing. Broussard replied with a lengthy handwritten letter. Broussard’s arguments included challenges to the quality of his trial counsel’s representation and to the trial court’s jurisdiction to hear his case.
Broussard’s argument is meandering and veers into tangents. We understand Broussard’s contention to be like his argument during his numerous Marsden motions. At its crux, Broussard’s contention collaterally attacks his conviction in 1983 for second degree murder because he believes it was barred by double jeopardy. From this premise, Broussard reasons that his incarceration in state prison for murder is invalid, his incarceration was improper ab initio, he should not have been in prison during the incident involving the prison guard, and the trial court lacked jurisdiction to conduct a trial for assault of a prison guard. We reject these contentions.
Broussard attached uncertified copies of trial transcripts from his murder trial as exhibit A to his letter brief. The portions of trial transcript provided by Broussard are not certified reporter’s transcripts. They are not reliable evidence of what occurred in Broussard’s murder trial and we cannot take judicial notice of this exhibit.
Although we cannot rely on these partial transcripts as evidence, the contents of those transcripts we have do not show that Broussard was twice placed in jeopardy. Broussard was apparently tried by the trial court without a jury. The trial court found that the People failed to prove first degree murder beyond a reasonable doubt but did prove second degree murder beyond a reasonable doubt. Broussard’s argument throughout the trial proceedings and in his letter brief appears to be based on the premise that because he was acquitted of first degree murder, he could not be convicted of second degree murder. This premise is legally incorrect.
Double jeopardy bars retrial for the same offense, usually after an acquittal for that offense. (Stone v. Superior Court (1982) 31 Cal.3d 503, 514-515.) If the trier of fact acquits a defendant of an offense, double jeopardy does not bar a retrial of an offense necessarily included in the greater offense. (Id. at p. 522.) Second degree murder is a necessarily included offense within first degree murder. (People v. Taylor (2010) 48 Cal.4th 574, 623; People v. Anderson (2006) 141 Cal.App.4th 430, 443.) On the face of the transcript Broussard attached, he was not subject to a second trial for second degree murder. Rather, he was found guilty of the lesser included offense of second degree murder at the conclusion of a single trial in which the prosecutor apparently charged him with first degree murder.
Broussard has presented no evidence that he was tried twice for murder. On the face of the transcript he has provided, it appears that at the end of a bench trial for first degree murder, the trial court acquitted Broussard of that offense but found him guilty instead of the lesser included offense of second degree murder. In so finding, the trial court in the murder case did not violate the double jeopardy clause of the Constitution based on the limited, uncertified record before us. More importantly, the trial court in the instant action did not lack jurisdiction to try Broussard for his assault of a prison guard.
Our observations concerning Broussard’s conviction for murder are solely for the purpose of responding to the double jeopardy argument he made throughout the proceedings and in his letter brief. The record provided by Broussard from the murder case is very limited and uncertified. Reading this limited record, we find Broussard has failed to make an adequate showing that he was twice placed in jeopardy for the same offense.
After independent review of the record, we have concluded there are no reasonably arguable legal or factual issues.
DISPOSITION
The judgment is affirmed.