Opinion
C041801.
11-7-2003
THE PEOPLE, Plaintiff and Respondent, v. JEREMY THOMAS BUCKMASTER, Defendant and Appellant.
A jury convicted defendant Jeremy Thomas Buckmaster of one count of first degree burglary and one count of second degree burglary (Pen. Code, §§ 459, 460; further undesignated section references are to the Penal Code). Defendant was sentenced to four years for the first degree burglary conviction and a concurrent term of two years was imposed for the second degree conviction.
On appeal, defendant contends (1) the prosecutor committed prejudicial misconduct, and (2) the court erred in imposing a $20 fine pursuant to Penal Code section 1202.5. We reject defendants first contention but find merit in his second claim. Additionally, we have discovered a sentencing error that requires remand for resentencing.
Facts and Proceedings
Around June 2000, defendant moved out of the apartment he had been sharing with Jacqueline Longhofer, leaving some of his belongings behind. Jacqueline kept the apartment but rarely stayed overnight because she feared defendant would return. Defendant and Jacqueline were unable to coordinate on a time for him to pick up the rest of his belongings.
On July 6, defendant telephoned Jacqueline and said he was coming over to get his things and that she had better be there or he would "make [her] bleed." Frightened, Jacqueline hung up on defendant and telephoned her father. He, in turn, called the police to oversee defendants behavior when he returned for his possessions.
Jacquelines father, as well as the police, arrived at Jacquelines apartment before defendant, who came with his friend, Kelly. While defendant removed most of his belongings, Jacqueline waited across the street and her father stood by the door monitoring the items defendant was taking.
On July 29, 2000, Jacqueline returned to the apartment and discovered that her entertainment center was missing. The center consisted of an Admiral five-disc CD changer, two JBL bookshelf-type speakers, a Sony television set, and two VCRs. These items had not been taken by defendant when he removed his property on July 6. Also missing were the rest of defendants clothing and mail. Jacqueline saw that the attic access panel had been moved, which permitted entry into the apartment from an area common to the apartment building but outside the apartment itself. Defendant had used this method of entry before.
Jacqueline suspected it was defendant who had burglarized her apartment. She telephoned him the following day and asked him to return the items taken. Defendant told her that he was "bitter" and "mad" and that he was not going to return them. When, after a few days, defendant had not returned Jacquelines property she called the police.
Detective Bradley Chew, assisted by Officer Thomas Shrum, was assigned to investigate the burglary of Jacquelines apartment. Chew interviewed defendants mother and brother, Scott, and they told him that defendant had admitted to them that he had gone to Jacquelines apartment and taken some of her property. Scott testified at trial, confirming Chews testimony.
Detective Chew also spoke with defendant who denied knowledge of the whereabouts of Jacquelines property. At a pawnshop near where Chew had interviewed defendant, Chew found receipts, dated July 29, 2001, showing that defendant had pawned two JBL speakers and a five-disc Admiral CD changer. Chew took custody of these items and showed them to Jacqueline who identified them as hers. Jacquelines remote control operated the CD changer.
Detective Chew again spoke with defendant, and again defendant denied knowing where Jacquelines property was located. When Chew confronted defendant about the speakers and CD changer at the pawnshop, defendant claimed that the items were his and that they were among the items he had removed during the civil standby. Defendant identified the pawned CD changer as a JVC six-disc model. Chew and Officer Shrum arrested defendant and transported him to the police station.
While being transported to the police station, defendant told Officer Shrum to check with his friend, Kelly, because she would verify his claim that he had taken the pawned items while removing his property during the civil standby. Shrum spoke with Kelly and an officer who was present at the civil standby to see if they could verify defendants claim. Shrum did not testify to what, if any, hearsay information he received.
Defendant neither testified nor did he call any witnesses.
Discussion
I
Prosecutorial misconduct
Defendants contention that the prosecutor committed prejudicial misconduct arises as follows. The prosecutor had subpoenaed Kelly as a witness, but defendant had not done so. However, defendant had requested that the prosecutor not release any of her witnesses. Kelly failed to appear but neither side requested a continuance or asked the court for a bench warrant to secure her presence.
During rebuttal, the prosecutor pointed out that defendant had told Officer Shrum to check with Kelly because she would verify his claim that he had removed the pawned items during the civil standby and that Shrum had checked with Kelly. The prosecutor then noted, "[I]f you had a good friend that helped you move a CD changer and a stereo out of a house during a civil standby and thats your friend and your friend can say, `Hey, yeah, I was there that day. I helped him drive it out of there, dont you think you would bring that person her to say that?"
At this point, defense counsel objected and suggested approaching the bench; however, the court overruled the objection, concluding that the argument was proper. When the prosecutor ended her rebuttal argument, defense counsel requested a "curing instruction." Defense counsel wanted the jury informed that Kelly had been under subpoena by the prosecutor but had failed to appear and that this was known to the prosecutor at the time she commented on the defense counsels failure to call Kelly as a witness. The court refused, observing that "[b]oth sides are entitled to bring in whatever witnesses they want, experts on fingerprints, whatever. Each side has the same ability to subpoena witnesses and bring them to court."
Relying on People v. Frohner (1976) 65 Cal.App.3d 95, defendant argues it was misconduct for the prosecutor to comment on his failure to call Kelly as a witness because the prosecutor knew that the witness had been subpoenaed but had intentionally failed to appear for trial. We disagree that the prosecutors comment was misconduct and find that Frohner is distinguishable.
Generally, "[p]rosecutorial comment upon a defendants failure `to introduce material evidence or to call logical witnesses is not improper." (People v. Wash (1993) 6 Cal.4th 215, 262-263, citing People v. Szeto (1981) 29 Cal.3d 20, 34 and People v. Ratliff (1986) 41 Cal.3d 675, 691.) Moreover, as the court accurately observed, "[b]oth sides are entitled to bring in whatever witnesses they want . . . ." (See U.S. Const., 6th Amend.; Cal. Const., art. I, § 15 [each embodying defendants right to the compulsory process of the court to secure witnesses].)
First, it is clearly incumbent on defendant to subpoena witnesses he believes are favorable to him. One might suspect that the prosecution subpoenaed Kelly and that defendant did not because Kelly, who had been interviewed by Officer Shrum, was a witness not favorable to the defense. In any event, if defendant had believed that Kelly would actually have given testimony favorable to him, he should have requested a continuance or made some attempt to secure her presence. However, he did not. Defendants failure to subpoena Kelly or to make any additional effort to secure her testimony when it became apparent she was not obeying her subpoena made those failures fair comment for the prosecution.
Finally, even if the prosecutors comment was misleading, given the overwhelming evidence against defendant, the comment could not conceivably have affected the verdict. Jacqueline testified that defendant admitted he had taken her property, which included the speakers and CD changer; defendants brother testified that defendant, in front of their mother, admitted taking Jacquelines property; Jacquelines father monitored defendants removal of property during the civil standby and defendant did not remove any of Jacquelines sound equipment; Jacquelines speakers and CD changer were found in a pawnshop near where defendant was interviewed by Detective Chew; and the pawnshop receipts showed that the items were pawned by defendant on July 29, the day Jacqueline discovered they were missing. Thus, even if the prosecutors comment was misleading, we may confidently conclude that in its absence, defendant would not have obtained a more favorable outcome. (See People v. Gionis (1995) 9 Cal.4th 1196, 1219-1220.)
People v. Frohner, supra, 65 Cal.App.3d 94, relied on by defendant, is factually distinguishable. In Frohner, defense counsel attempted to subpoena an informant who had participated in undercover drug buys from defendant and who testified for the prosecution at defendants preliminary examination. Prior to trial, counsel informed the court of his attempt to subpoena the informant at an address he had given at the preliminary hearing. Counsel set forth for the court his reasons for believing that the informant was an essential witness for defendants entrapment defense. Attempts to locate Covert were ineffective and he did not testify at trial. (Id. at pp. 100-102.)
During closing argument, the prosecutor commented on the informants absence, stating, "Counsel has subpoenas. If he wanted him here so you could look at him, he could have had him here." (People v. Frohner, supra, 65 Cal.App.3d at pp. 108-109.)
On appeal, with respect to the prosecutors comment, the reviewing court stated: "The prosecutors comment was inexcusable. He knew that subpoenas could not be served on Covert. The only apparent reason for the comment was an improper one: to suggest to the jury that defendant had purposely failed to call Covert as a witness." (Id. at p. 109.)
The circumstances in Frohner are significantly different from those in the present case. Here, defendant never attempted to subpoena Kelly, he never requested a continuance to locate Kelly when she failed to appear for trial, and he never made an offer of proof as to why her testimony would be favorable to him. Consequently, Frohner is of no aid to defendant.
II
Sentencing error
At sentencing, pursuant to Penal Code section 1202.5, the court imposed a $10 fine for each of defendants two burglary convictions. Defendant contends this section, in accordance with its express wording, permits only a $10 dollar fine per case, rather than per count as was done here. The People urge to the contrary, arguing that under defendants construction of the statute, inequitable results ensue. We agree with defendant.
Section 1202.5 provides, in relevant part: "(a) In any case in which a defendant is convicted of any of the offenses enumerated in Section . . . 459 . . . the court shall order the defendant to pay a fine of ten dollars ($10) in addition to any other penalty of fine imposed." The purpose of section 1202.5 is to aid local jurisdictions in implementing crime prevention programs. (§ 1202.5, subd. (b).)
In determining the Legislatures intent in enacting a law, the court first examines the words of the statute. (Walker v. Superior Court (1988) 47 Cal.3d 112, 121.) If the words are clear, no interpretation is necessary. (Ibid.)
A case consists of one or more counts, each of which alleges a separate criminal offense. (See §§ 949, 952, 954.) Section 1202.5 speaks only of cases and makes no reference whatsoever to counts or offenses within a case. Indeed, the Legislature frequently differentiates between a case and its constituent counts or offenses when imposing fines. For example, Health and Safety Code section 11372 provides that "[i]n addition to the term of imprisonment provided by law for a person convicted of violating [specified drug offenses], the trial court may impose a fine not exceeding twenty thousand dollars ($20,000) for each such offense." (Italics added.) The fees imposed pursuant to Health and Safety Code sections 11372.5 and 11372.7 for the offenses specified therein are for "each separate offense." (Health & Saf. Code, §§ 11372.5, subd. (a), 11372.7, subd. (a), italics added.) By contrast, section 1202.4, subdivision (b) provides for a felony restitution fine ranging from $200 to $10,000 per case, not per conviction.
Thus, had the Legislature intended that the fine provided for in section 1202.5 be imposed for each count rather than for each case, they obviously would have do so. Because Legislature did not do so, we conclude that the Legislature meant what it said — the fine is to be imposed per case.
The People contend that reading section 1202.5 in the manner which we have leads to inequitable results. They argue: "Under [such a] narrow reading of the statute, a defendant who has been convicted of multiple qualifying theft offenses (i.e., ten or twenty or even fifty counts) in the same case is subject to only the same ten dollar fine as the defendant who has been convicted of a single qualifying offense. That hardly seems equitable. Moreover, if the same defendant is convicted of multiple theft offenses (i.e., ten or twenty or fifty offenses), but the convictions occur in separate cases, then he or she is subject to ten or twenty or even fifty ten dollar fines instead of just one fine. Once again, that is not a fair result."
Circumstances analogous to those hypothesized by the People are present in section 667, subdivision (a), which, for qualifying defendants, mandates a five-year sentence enhancement for each prior serious felony conviction that has been "brought and tried separately." A defendant who has one prior serious felony conviction receives the same enhancement (five years) as does a defendant who has multiple prior serious felony convictions, where those multiple convictions were brought and tried in the same case. (People v. Deay (1987) 194 Cal.App.3d 280, 290.) On the other hand, a defendant who has multiple prior serious convictions, each of which occurred in a separate case, receives a five-year enhancement for each conviction. (People v. Bizieff (1990) 226 Cal.App.3d 130, 135-137.) The Legislature is free to make such choices and has done so here.
III
Unauthorized Sentence
The court stated that notwithstanding the probation departments recommendation for consecutive sentencing, it intended "to impose concurrent time on Count Two (second degree burglary)." The court then sentenced defendant as follows: "The Court designates Count One as the principal term. As to Count One, the defendant is sentenced to the midterm of four years state prison. [¶] As to Count Two, any sentence is one-third the term, eight months that would be served concurrently with Count One. The aggregate term in state prison is a total of four years." The sentencing range for felony second degree burglary is 16 months, two or three years. (§§ 18, 461.)
The principal/subordinate sentencing scheme applies to consecutive, not concurrent, sentencing. (See § 1170.1.) There is no statutory authorization for imposing one-third of the middle term for a sentence ordered to run concurrently. The trial court should have selected one of the terms from the 16 months, two- or three-year triad and imposed it, undiminished, to run concurrently. Imposing an eight-month concurrent term for the second degree burglary resulted in an unauthorized sentence.
"`"[W]hen the trial court pronounces a sentence which is unauthorized by the Penal Code that sentence must be vacated and a proper sentence imposed . . . . When the mistake is discovered while the defendants appeal is pending, the appellate court should remand the case for a proper sentence."" (People v. Iniguez (2002) 96 Cal.App.4th 75, 80-81, quoting People v. Hickey (1980) 426, 435.)
Disposition
The sentence for second degree burglary is vacated and the matter is remanded to the superior court with directions to resentence defendant on count Two in accordance with this opinion. The court is further ordered to strike $10 from the fine imposed pursuant to Penal Code section 1202.5 and to prepare an amended abstract of judgment reflecting these changes and to forward a copy of the amended abstract to the Department of Corrections.
We concur: DAVIS, Acting P.J. and NICHOLSON, J.