Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. BAF004527, Douglas E. Weathers, Judge.
Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
RICHLI, J.
In an information filed on March 23, 2006, defendant Parry Bunts was charged with robbery, a violation of Penal Code section 211. It was also alleged that defendant used a knife in committing the offense, within the meaning of sections 12022, subdivision (b)(1), and 1192.7, subdivision (c)(23).
All further statutory references will be to the Penal Code unless otherwise indicated.
An amended information filed on May 19, 2006, repeated the earlier charge and added a charge that defendant violated section 148, subdivision (a)(1), a misdemeanor, by resisting a police officer in the discharge of his duties. Defendant subsequently pled guilty to this charge.
Trial began on January 22, 2007, the day Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham), was filed. In Cunningham, the United States Supreme Court decided that California’s determinate sentencing law violated a defendant’s constitutional right to a jury trial to the extent it permitted a trial court to impose an upper term based on facts found by the court rather than by a jury beyond a reasonable doubt. (People v. Calhoun (2007) 40 Cal.4th 398, 406.)
In response to Cunningham, the prosecution filed a second amended information on the next day. The second amended information added a section entitled “Special Allegations of Aggravating Circumstances Pursuant to Cunningham . . . .” The allegations were: “1. The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness. [¶] 2. The defendant was armed with or used a weapon at the time of the commission of the crime. [¶] 3. The victim was particularly vulnerable.”
The jury found defendant guilty as charged and found the armed allegation (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)) and the three special allegations to be true.
Defendant was sentenced to the midterm of three years for the robbery and one year for the enhancement, for a total of four years in state prison.
Defendant appeals, contending that the trial court erred in denying his motion to bifurcate the trial on the factors in aggravation.
Defendant explains that, although the question of whether it is proper to allege aggravating factors in an information is a question of first impression, he does not raise it because the court imposed a midterm sentence.
FACTS
On December 20, 2005, Barbara Warren, the 60-year-old victim, was in the parking lot of a drug store in Banning at approximately 9:00 p.m. Defendant walked up to her and asked her for directions. He grabbed Warren’s purse and tried to take it from her. She resisted until he pulled out a knife and threatened her with it. Defendant then ran away with the purse.
A woman who saw the incident called police. She also identified defendant as the robber.
Defendant claimed misidentification but the jury convicted him of robbery as stated above.
The Trial Court’s Denial of the Motion to Bifurcate
When the second amended information was filed, defense counsel made an oral demurrer. Since Cunningham was less than 24 hours old, the trial court overruled the demurrer and stated that it would decide later how the issue was to be presented to the jury. Defense counsel then said, “If the Court decides that it’s appropriate to give the verdict forms as prepared by the D.A. as to the special circumstances or the aggravating factors, I think that I might have a right to bifurcate as to that, just as I would with a strike prior.” The trial court replied, “Logically that makes sense.” The prosecutor agreed and the trial court said, “We will handle it in that fashion.”
Subsequently, the court again addressed Cunningham. It first noted that Cunningham did not address the issue of bifurcation. Second, the trial court observed that the jury would hear the age of the victim, and possibly that she was handicapped. These factors went to the allegation of victim vulnerability. Because of the armed allegation attached to the first count, the jury would also learn that the perpetrator was armed. The only other special allegation was that based on the circumstances of the crime itself, i.e., that the crime “involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness.”
Defense counsel argued that it would be prejudicial for the jury to hear evidence on these allegations. The trial court disagreed because the jury was going to hear the evidence in any event. It tentatively decided against bifurcation. Eventually, the jury was instructed on the special allegations, and the special allegations were submitted to it for decision.
DISCUSSION
The parties agree that the trial court had the power to order bifurcation of the special allegations. The trial court’s authority derives from section 1044 and our Supreme Court’s decision in People v. Calderon (1994) 9 Cal.4th 69 (Calderon): “It is clear, therefore, that a trial court, through the exercise of its general powers under section 1044, may order that the determination of the truth of a prior conviction allegation be determined in a separate proceeding before the same jury, after the jury has returned a verdict of guilty of the charged offense. The more difficult question is under what circumstances, if any, must a trial court bifurcate the trial in this manner?” (Id. at p. 75.)
Section 1044 states: “It shall be the duty of the judge to control all proceedings during the trial, and to limit the introduction of evidence and the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.”
Answering this question, the court held that “the denial of a defendant’s timely request to bifurcate the determination of the truth of a prior conviction allegation from the determination of the defendant’s guilt is an abuse of discretion where admitting, for purposes of sentence enhancement, evidence of an alleged prior conviction during the trial of the currently charged offense would pose a substantial risk of undue prejudice to the defendant.” (Calderon, supra, 9 Cal.4th at pp. 77-78.)
Continuing the prior conviction analogy, defendant urges us to apply the rule of People v. Bracamonte (1981) 119 Cal.App.3d 644 (Bracamonte). In that case, the court held that proof of the prior convictions was clearly severable from proof of the charged crimes, and it was unnecessarily prejudicial to permit the jury to hear that proof at the guilt phase of the trial. (Id. at p. 650.) Accordingly, Bracamonte held that the trial court erred in denying defendant’s motion to bifurcate, and defendant was entitled to bifurcation of the issue of guilt and the issue of whether defendant had sustained the prior convictions. (Id. at pp. 650-651.)
As will be discussed, Bracamonte was overruled by Calderon, supra, 9 Cal.4th at pages 79-80.
Here, defendant argues that proof of the aggravating factors is equally prejudicial, and he was entitled to bifurcation of his trial on the aggravating factors. He argues that the aggravating allegations were solely relevant to sentencing and not to the substantive offense.
We disagree. Bracamonte was specifically overruled by Calderon to the extent it conflicts with Calderon. (Calderon, supra,9 Cal.4th at p. 80.) In Calderon, our Supreme Court rejected “a judicially created rule of procedure that would require bifurcation of the determination of the truth of a prior conviction allegation in all trials, regardless of the circumstances of the particular case.” (Id. at pp. 79-80.)
Instead, it required an evaluation of prejudice: “In ruling upon a defendant’s timely request for bifurcation, the trial court first should consider the potential prejudicial effect of admission of evidence that the defendant has suffered the alleged prior conviction. As noted above, this court long has ‘recognized the substantial prejudicial effect inherent in evidence of prior offenses [citation] . . . .’ [Citation.] The potential for prejudice will vary, however, depending upon the circumstances of each case. Factors that affect the potential for prejudice include, but are not limited to, the degree to which the prior offense is similar to the charged offense [citations], how recently the prior conviction occurred, and the relative seriousness or inflammatory nature of the prior conviction as compared with the charged offense [citations]. [¶] If it appears likely that admission of evidence of the prior conviction would unduly prejudice the defendant, the court should consider whether this potential for prejudice will be lessened for some reason, such as because evidence that the defendant has committed one or more uncharged criminal offenses will be admitted for purposes other than sentence enhancement. The determination whether the risk of undue prejudice to the defendant requires that the trial be bifurcated rests within the sound discretion of the trial court, and that determination will be reversed on appeal only if the trial court abuses its discretion. We observe, however, that the risk of undue prejudice posed by the admission of evidence of a prior conviction, considered against the minimal inconvenience generally caused by bifurcating the trial, frequently will militate in favor of granting a defendant’s timely request for bifurcation.” (Calderon, supra,9 Cal.4th at p. 79.)
If we continue the analogy to prior convictions, the prejudice from a unitary trial in this case is nonexistent. As the trial court noted, the only issue was identification. The issues presented by the special allegations all concerned the crime itself, and the facts upon which the allegations were based would be part of the trial testimony even if the jury was not considering special allegations.
Specifically, testimony that defendant used a knife was admissible to prove the armed allegation of count 1, as well as the special allegation. Testimony as to the violence used by defendant was integral to the testimony of the crime itself. Testimony that the victim was particularly vulnerable was also part of the testimony of the crime. The victim’s age was foundational, and the jury was able to evaluate her vulnerability by observing her on the witness stand. There was also evidence that she was parked in a designated handicapped parking space.
In other words, unlike most prior conviction allegations, the special allegations here all concerned facts relating to the crime. To use the People’s phrase, the facts of the special allegations were “inextricably intertwined” with the facts of the offense. The phrase derives from People v. Hernandez (2004) 33 Cal.4th 1040 (Hernandez). In that case, the issue was whether a gang enhancement should be tried separately. The court found less need for bifurcation in that case than in the case of a prior conviction allegation. It explained: “A gang enhancement is different from the prior conviction at issue in Calderon. A prior conviction allegation relates to the defendant’s status and may have no connection to the charged offense; by contrast, the criminal street gang enhancement is attached to the charged offense and is, by definition, inextricably intertwined with that offense. So less need for bifurcation generally exists with the gang enhancement than with a prior conviction allegation. [Citation.]” (Id. at p. 1048.) The court concluded: “Accordingly, defendants did not meet their burden ‘to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.’ [Citation.] The court acted within its discretion in denying bifurcation.” (Id. at p. 1051.)
Defendant argues that he was prejudiced because the trial court’s denial of bifurcation prevented him from testifying as to the aggravating factors without testifying as to the substantive charges. We disagree. Defendant was not prevented from testifying. He could have testified at trial if he wanted to, subject to applicable impeachment. Defendant cites no authority establishing a right to testify in one portion of the trial and not the other, particularly when the issues and the evidence were the same. Nor is it clear what his testimony would have been, as his only defense was misidentification.
In any event, as previously discussed, we find that defendant was not prejudiced in any way by the denial of the motion for bifurcation and the consideration of all factual issues, including the applicability of aggravating factors, in a unitary trial.
Although the context here was new, the governing principles are the same. Defendant sustained no prejudice from having the guilt phase jury hear evidence concerning the aggravating factors relating to the charged crime. Accordingly, the trial court was well within its discretion in denying bifurcation.
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ P. J., HOLLENHORST J.