Opinion
F060675
01-17-2012
THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE CARDOZA, Defendant and Appellant.
John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Brook Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 07CM7118 & 09CM2771)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Thomas DeSantos, Judge.
John Hardesty, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Charles A. French and Brook Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Lawrence Cardoza guilty of one count of aggravated battery by gassing, three counts of battery by a prisoner, and one count of obstructing officers in the performance of their duties. In the unitary trial, the jury also found true the enhancement allegations of a prior strike and two prior prison terms.
On appeal, Cardoza contends (1) that the trial court abused its discretion in admitting prior convictions for impeachment purposes and subsequently reunifying the bifurcated trial on the enhancement allegations; (2) that the trial court abused its discretion by excluding the testimony of a witness; (3) that the prosecutor committed prejudicial misconduct; (4) that the trial court erred by imposing a full consecutive term on the gassing offense; and (5) cumulative error. He also argues that the abstract of judgment should be amended to add the actual time he served in prison prior to sentencing. The People agree on this last point.
We agree that the trial court incorrectly imposed a full consecutive term on the gassing offense. We vacate the judgment and remand the case to the trial court to sentence Cardoza under Penal Code section 1170.1, subdivision (a). We also instruct the court to correct the credit for time served in the abstract of judgment to include the number of actual days Cardoza spent in prison. In all other respects, we affirm the judgment.
FACTUAL AND PROCEDURAL HISTORIES
Cardoza was incarcerated at Corcoran State Prison on November 19, 2006, when an incident occurred which gave rise to this case.
According to correctional officers, on that day, Cardoza ignored direct orders to go to his housing unit cell and became verbally abusive. Correctional officers Randall Gillespie and Andrew Johnson handcuffed Cardoza and escorted him out of the housing unit to a holding cell in a medical clinic. Johnson testified that the intention was for Cardoza to receive verbal counseling from a sergeant for failing to comply with orders. Cardoza was belligerent when they arrived at the holding cell. Gillespie, Johnson, and another officer, Nathan Scaife, attempted to place him in the holding cell. Cardoza turned toward the officers and again was verbally abusive. He refused to move into the cell and pushed his body against the officers. The officers put leg restraints on Cardoza because he was kicking. Cardoza continued to resist and push the officers with his body. Scaife put a dust mask or surgical mask on Cardoza's face to prevent him from spitting on them, but Cardoza was able to turn his head and brush the mask off using the side of the cell. Cardoza spit on Gillespie's face. Cardoza also cussed and called the officers names.
According to Cardoza, he "got beat up that day." Cardoza claims he was not being aggressive with the officers as he was placed in the holding cell, but Scaife "smashed [his] head into the cage [i.e., holding cell]," and Gillespie elbowed him in the face. He admitted that he used profanity at various times, but he denied spitting on anyone and said the mask stayed on his face during the incident. Cardoza made an internal prison complaint alleging excessive force by the officers.
On February 28, 2007, the district attorney for Kings County filed a complaint against Cardoza related to the November 19, 2006, incident, case No. 07CM7118. On March 4, 2007, Cardoza was paroled on the offense for which he had been serving a prison term at the time of the incident—a 2005 conviction for evading the police. He was transferred from state prison to the Kings County Jail and was held to answer on the complaint.
On May 8, 2007, Cardoza was released on bail after a bond was posted. On August 7, 2007, he failed to appear in court for a pretrial hearing, and a bench warrant was issued. Cardoza was taken into custody in Sacramento County on August 15, 2007, and transferred to the Kings County Jail. He was released on bail again on September 18, 2007. On October 17, 2007, Cardoza failed to appear in court again, and a bench warrant was issued.
On November 8, 2007, a six-count amended information was filed in case No. 07CM7118. Count 1 alleged battery by gassing of correctional officer Gillespie while confined in state prison. (Pen. Code, § 4501.1, subd. (a).) Counts 2 through 4 alleged battery of Gillespie, Johnson, and Scaife, while confined in state prison. (§ 4501.5.) Count 5 alleged obstructing or resisting officers in the performance of their duties. (§ 69.) Count 6 alleged failure to appear after being released from custody on bail. (§ 1320.5.) With respect to counts 1 through 5, it was further alleged that Cardoza had been convicted of a prior serious or violent felony or juvenile adjudication, i.e., a "strike" (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had suffered prior convictions for which he served time in prison (§ 667.5, subd. (b)).
Subsequent statutory references are to the Penal Code unless otherwise indicated.
According to a probation officer's report, Cardoza was arrested on December 8, 2007, in Sacramento County. He committed new offenses after he was released on bail, and a jury in Sacramento County subsequently convicted Cardoza of assault on a peace officer with a deadly weapon, evading the police, and evading the police while driving the wrong way. On February 13, 2009, he was sentenced to 18 years 4 months in prison.
On October 20, 2009, the district attorney for Kings County filed a two-count information, case No. 09CM2771. It was alleged that Cardoza twice failed to appear as required after being released from custody on bail in violation of section 1320.5—on August 7, 2007 (count 1) and again on October 17, 2007 (count 2). It was further alleged that, at the time of the offenses, Cardoza was released from custody on bail within the meaning of section 12022.1. It was further alleged that Cardoza had been convicted of a prior strike (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served prior prison terms (§ 667.5, subd. (b)).
In case No. 07CM7118, the trial court granted the People's motion to dismiss count 6 (failure to appear), and a jury trial began on May 24, 2010. Gillespie, Johnson, Scaife, and Sergeants Jose Espinoza and Steven Marsh testified for the prosecution. Cardoza testified in his own behalf. On May 27, 2010, after about an hour of deliberation, the jury found Cardoza guilty of all five counts and found true the allegations of a prior strike and prior prison terms.
On June 1, 2010, in case No. 09CM2771, the parties reached a plea agreement. Cardoza agreed to enter a plea of no contest to count 2 and admit the prior strike in exchange for dismissal of count 1 and the allegations of prior prison terms; the parties also agreed to a sentence of 16 months to be served consecutively to the sentence to be imposed in case No. 07CM7118.
On July 21, 2010, the trial court sentenced Cardoza in both cases. In case No. 07CM7118, the court imposed the upper term of four years on count 1, doubled because of the strike to eight years, plus two years for prior prison terms, for a total of 10 years. On each of counts 2 through 4, the court imposed a consecutive sentence of one-third the middle term of three years, doubled by the strike to two years, for an additional six years. On count 5, the court imposed a six-year term, but stayed it pursuant to section 654. In case No. 09CM2771, the court sentenced Cardoza to 16 months to run consecutively, the sentence the parties had agreed to in the plea agreement.
DISCUSSION
I. Use of prior convictions
Before the start of trial, defense counsel moved to bifurcate trial of the enhancement allegations of a prior strike and prior prison terms, and the trial court granted the motion. After the prosecution presented its case, defense counsel indicated that Cardoza would testify. The trial court ruled that evidence of Cardoza's prior convictions for crimes involving moral turpitude could be used to impeach him. The prosecutor then requested that the case be reunified so the jury could decide the enhancement allegations. The court agreed it was "appropriate to unbifurcate this case" if Cardoza were to testify.
Cardoza testified in his own defense. Before cross-examination, the trial court granted the prosecutor's motion to reunify the trial. The prosecutor then asked Cardoza about 10 prior convictions. These included the conviction alleged to be a strike for purposes of sections 667 and 1170.12 and the convictions alleged to be prison priors pursuant to section 667.5.
On appeal, Cardoza raises various claims of error in the use of these prior convictions. We reject his claims.
A. Impeachment
Prior convictions for crimes involving moral turpitude are admissible to impeach, subject to the court's discretion under Evidence Code section 352. (People v. Harris (2005) 37 Cal.4th 310, 337; see also Evid. Code, § 788 [prior felony convictions may be used to attack credibility of witness].)
We review for abuse of discretion a trial court's decision whether to admit prior convictions for impeachment purposes. (People v. Green (1995) 34 Cal.App.4th 165, 182-183.) "A trial court's exercise of discretion will not be disturbed unless it appears that the resulting injury is sufficiently grave to manifest a miscarriage of justice. [Citation.] In other words, discretion is abused only if the court exceeds the bounds of reason, all of the circumstances being considered. [Citation.]" (People v. Stewart (1985) 171 Cal.App.3d 59, 65.)
In this case, before Cardoza testified, his counsel made an oral motion in limine raising two issues. First, he argued that Cardoza's 2009 convictions should not be used for impeachment purposes "because they occurred after this incident, which occurred in 2006." Second, Cardoza was in a wheelchair at the time of trial because of injuries he sustained when he was shot by police in 2007. This incident gave rise to three 2009 convictions in Sacramento County for (1) assault on a peace officer with a deadly weapon, (2) evading the police, and (3) evading the police while driving the wrong way. Defense counsel requested that Cardoza not be questioned about how he came to be in a wheelchair because the circumstances leading to his injuries (being shot by the police while fleeing) would be more prejudicial than probative. The prosecutor, on the other hand, did not want the jury left with the impression that the 2006 incident with the correctional officers had caused Cardoza to be in a wheelchair. The parties agreed to stipulate that Cardoza was in a wheelchair at the time of trial because of an event that occurred when he was out of custody and had nothing to do with the November 19, 2006, incident.
With respect to defense counsel's motion to exclude the 2009 convictions, the prosecutor argued: "[Cardoza is] testifying here today in May of 2010 and his credibility is at issue today. Therefore all of his felony convictions that are crimes of moral turpitude are relevant to his credibility today." Defense counsel responded that the reason for introducing prior convictions for impeachment was "to show ... the nature of the types of offenses committed, not the number of offenses committed." He asserted that the 2009 convictions were "cumulative" and "not necessary." The trial court allowed the 2009 convictions to be used for impeachment. The court reasoned:
"Under [Evidence Code section] 352, I have to consider whether or not it unduly prejudices the defendant, whether or not it confuses the issue, and whether or not it misleads the jury, or is an undue consumption of time.
"Asking the defendant or showing the defendant, whether or not he was convicted of three felony matters, all of which are of moral turpitude matters in 2009, or at any time before he testifies would be appropriate.
"It's not an undue consumption of time. I do not believe it misleads the jury. Obviously it's prejudicial, but not to, not other than normally what the law would allow for impeachment purposes."
The trial court then asked the prosecutor if he planned to use any other convictions for impeachment purposes. The prosecutor identified seven additional convictions: In 1999, Cardoza was convicted of (1) car-jacking and (2) vehicle theft; in 2002, he was convicted of (3) vehicle theft, (4) evading the police, and (5) receiving stolen property in one case and (6) resisting arrest in another case; and in 2005, he was convicted of (7) evading the police. The convictions were all felonies and, the prosecutor asserted, were all crimes of moral turpitude.
The trial court asked defense counsel if he wished to respond, and counsel asked that reference to the 2009 conviction for assault of a peace officer with a deadly weapon be limited to assault on an officer. The court rejected this request. Defense counsel raised no other objections to the use of Cardoza's prior convictions for impeachment.
The court ruled:
"In this matter it appears that these are appropriate convictions to come in under impeachment. The Court has weighed under Evidence Code Section 352. The decision as to, as I previously indicated materiality probative value, whether or not it's an undue consumption of time.
"The Court believes that while it may be prejudicial is not more than unduly prejudicial than what the law intended prior convictions, felony convictions of moral turpitude to be, for which they are to be used, and the Court will allow all those convictions to be used to impeach the defendant, should he testify."
On appeal, Cardoza argues that the trial court abused its discretion by failing to conduct an evaluation of the prior convictions pursuant to Evidence Code section 352 and the Beagle guidelines.
People v. Beagle (1972) 6 Cal.3d 441, 453 (Beagle), superseded by statute on other grounds by the California Constitution, article I, section 28. Although not intended to establish rigid standards, our Supreme Court in Beagle identified "certain suggested factors to be considered in the exercise of discretion [in determining whether to admit prior convictions for impeachment purposes]—namely, (1) whether the prior conviction reflects on honesty and integrity; (2) whether it is near or remote in time; (3) whether it was suffered for the same or substantially similar conduct for which the witness-accused is on trial; and, (4) finally, what effect admission would have on the defendant's decision to testify." (People v. Castro (1985) 38 Cal.3d 301, 307.)
First, as a procedural matter, Cardoza argues that the trial court declared its decision to allow impeachment with 10 prior felonies in "conclusory fashion," suggesting that the trial court should have evaluated each felony individually on the record. Cardoza has forfeited this argument because his counsel did not request more extensive evaluation under Evidence Code section 352 from the trial court or object to its ruling. Defense counsel did not argue that any of the convictions should have been excluded under the Beagle factors. (People v. Roberts (2010) 184 Cal.App.4th 1149, 1193 ["A party forfeits the right to claim error as grounds for reversal on appeal when he or she fails to raise the objection in the trial court"].)
Further, the argument fails on the merits. In rejecting an argument similar to Cardoza's that a trial court's decision to admit evidence was "too short and conclusory," our Supreme Court recognized, "when ruling on [an Evidence Code] section 352 motion, a trial court need not expressly weigh prejudice against probative value, or even expressly state it has done so. All that is required is that the record demonstrate the trial court understood and fulfilled its responsibilities under Evidence Code section 352." (People v. Williams (1997) 16 Cal.4th 153, 213-214; see also People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6 [disavowing language in earlier cases indicating trial court was required to weigh probative value against prejudice explicitly on record].) Here, the trial court stated on the record that it "weighed under Evidence Code Section 352." This was sufficient.
Second, as a substantive matter, Cardoza argues that the trial court abused its discretion by admitting all of Cardoza's prior convictions. He argues that his convictions for resisting an officer, evading an officer, and assault on a police officer with a deadly weapon did not reflect on his honesty in any way and were substantially similar to the charges against him at trial. Again, Cardoza failed to preserve these issues for appeal because he did not object on these grounds at trial. (People v. Carrera (1989) 49 Cal.3d 291, 324.)
Even if defense counsel had raised these objections, the trial court would not have abused its discretion by overruling the objections and admitting the convictions. Convictions such as Cardoza's are crimes of moral turpitude and are admissible for impeachment purposes. (See, e.g., People v. Williams (1999) 72 Cal.App.4th 1460, 1465 [obstructing officer in performance of duties]; People v. Dewey (1996) 42 Cal.App.4th 216, 223 [evading police]; People v. Armendariz (1985) 174 Cal.App.3d 674, 681-682 [assault with deadly weapon]; People v. Clarida (1987) 197 Cal.App.3d 547, 552 [battery on peace officer].) To the extent Cardoza's argument is that the trial court simply admitted too many prior convictions, we observe "there is no limitation on the number of prior convictions with which the defendant's credibility can be impeached." (People v. Mendoza (2000) 78 Cal.App.4th 918, 927 [10 convictions admissible to impeach defendant]; see also People v. Clark (2011) 52 Cal.4th 856, 932-933 ["a series of crimes may be more probative of credibility than single crime"].)
Further, "[p]rior convictions for the identical offense are not automatically excluded. 'The identity or similarity of current and impeaching offenses is just one factor to be considered by the trial court in exercising its discretion.' [Citation.]" (People v. Green, supra, 34 Cal.App.4th at p. 183 [four identical prior convictions admissible for impeachment].) Cardoza argues that only the theft and car-jacking convictions were admissible for impeachment purposes, but Cardoza was convicted of car-jacking and vehicle theft in 1999 and vehicle theft in 2002. One of the four Beagle factors is nearness or remoteness in time. (Beagle, supra, 6 Cal.3d at p. 453.) If defense counsel had raised objections to the use of Cardoza's other convictions, it would not have been an abuse of discretion for the trial court to determine that Cardoza's convictions for evading the police in 2005 and assault on a peace officer with a deadly weapon and evading the police in 2009 were relevant to credibility because they were Cardoza's most recent convictions.
B. "Unbifurcating" the trial
After the trial court ruled that Cardoza's prior convictions were admissible for impeachment, the prosecutor moved to reunify the trial regarding the enhancement allegations. The prosecutor argued: "[T]he jury's already going to be aware that he has those convictions. At that point there's no prejudicial issue, which is the whole reason behind bifurcating the priors." The prosecutor also indicated that he would need to reopen the case to introduce Cardoza's "969(b) packets." Defense counsel requested that the trial remain bifurcated, stating, "there is an issue of whether these convictions are actually valid convictions legally." Cardoza does not challenge the constitutionality of the prior convictions on appeal.
Section 969b provides that certified copies of state prison records are prima facie evidence that a defendant has been convicted of a crime and served a prison term. (People v. Pearl (2009) 172 Cal.App.4th 1280, 1286; People v. Scott (2000) 85 Cal.App.4th 905, 910-911.)
The court agreed to reunify the trial, explaining, "It does not appear that the defendant would be [any more] prejudiced with the convictions coming in for impeachment purposes, or as well as with respect to the case-in-chief of the People in proving prior convictions in this matter. [¶] I do not see ... any other prejudice that has either been argued to me or shown to me that the defendant would receive, other than the normal prejudice that comes in with prior convictions." The trial court referred to People v. Burch (2007) 148 Cal.App.4th 862 and concluded that "it's appropriate to unbifurcate this case should the defendant testify .... "
A trial court's broad discretion to control the conduct of a criminal trial includes the authority to bifurcate the determination of the truth of a prior-conviction allegation from the determination of guilt of the charged offense. (People v. Calderon (1994) 9 Cal.4th 69, 75 (Calderon).) "[B]ifurcation is not required in every instance. In some cases, a trial court properly may determine, prior to trial, that a unitary trial of the defendant's guilt or innocence of the charged offense and of the truth of a prior conviction allegation will not unduly prejudice the defendant." (Id. at p. 78.) For example, "when it is clear prior to trial that the defendant will testify and be impeached with evidence of the prior conviction [citation], denial of a request for a bifurcated trial generally would not expose the jury to any additional prejudicial evidence concerning the defendant." (Ibid.) Whether a trial should be bifurcated rests within the discretion of the court, and the court's decision will be reversed on appeal only if the trial court abuses its discretion. (Id. at p. 79.)
Here, the trial court properly considered whether there was a risk of undue prejudice in reunifying the trial as Calderon requires. The court determined, "It does not appear that the defendant would be [any more] prejudiced with the convictions coming in for impeachment purposes, or as well as with respect to the case-in-chief of the People in proving prior convictions in this matter." We conclude there is no abuse of discretion.
Cardoza argues that we must follow our earlier decision in People v. Martinez (1985) 175 Cal.App.3d 881 and disregard Calderon as dictum. We disagree. In Martinez, our court followed the "judicial rule of practice" stated in People v. Bracamonte (1981) 119 Cal.App.3d 644, 654, that whenever a defendant pleads not guilty of priors he is entitled to a bifurcated proceeding. (Martinez, supra, at p. 892.) In Calderon, however, our Supreme Court addressed and disavowed the Bracamonte rule, adopting a rule that a unitary trial is acceptable where the trial court has determined that it will not prejudice the defendant. (Calderon, supra, 9 Cal.4th at pp. 72, 78 ["Contrary to the holding of the Court of Appeal in Bracamonte, however, bifurcation is not required in every instance"].)Since the decision in Martinez is premised on the Bracamonte rule, which was overruled by our Supreme Court, it is no longer persuasive authority.
Two prison packets, which showed Cardoza's prison history, were admitted into evidence. On appeal, Cardoza claims "[t]here can be little doubt that these exhibits gave the jury the impression that [he] was the type of recidivist who must have a general criminal disposition." He points out that the prison packets showed he was sentenced to nine years for car-jacking, even though he was a minor at the time, and the prison chronological log included notations such as "WCL 30 days." He argues that the jury would have known that "WCL" refers to work credit loss and would have understood that Cardoza had misbehaved in prison. This argument is speculative. Although it may be better practice to redact prison packets admitted to show prior convictions or prison terms, we cannot say that allowing the admission of Cardoza's unredacted prison packets in this case exceeded the bounds of reason. We conclude there is no abuse of discretion.
C. Ineffective assistance of counsel
Finally, Cardoza argues that, to the extent he has forfeited the issue of use of prior convictions because defense counsel failed to object during trial, counsel rendered ineffective assistance of counsel. We reject this argument.
"A cognizable claim of ineffective assistance of counsel requires a showing 'counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed ... by the Sixth Amendment.'" (People v. Jones (2009) 178 Cal.App.4th 853, 859-860, quoting Strickland v. Washington (1984) 466 U.S. 668, 687.) To prevail on an ineffective-assistance-of-counsel claim, a defendant must also show prejudice, i.e., a reasonable probability that, but for counsel's errors, the result of the proceeding would have been different. (People v. Jones, supra, at p. 860.)
Cardoza cannot show prejudice because, as discussed above, the trial court did not abuse its discretion by admitting the prior convictions for impeachment purposes or by reunifying the trial after Cardoza testified. (See People v. Jones, supra, 178 Cal.App.4th at p. 860 [no error where counsel failed to object to admission of evidence, and trial court did not abuse its discretion by admitting evidence].)
II. Excluding Scaife as a defense witness
Cardoza contends the trial court abused its discretion by precluding defense counsel from pursuing a line of questioning of Correctional Officer Scaife. To address this contention, we begin by describing the prison's attempts to videotape an interview with Cardoza immediately after the incident.
During the November 19, 2006, incident, as correctional officers attempted to place Cardoza in the holding cell, Sergeants Steven Marsh and Jose Espinoza arrived at the scene. Marsh was able to close the holding cell door and lock Cardoza inside. Looking through the mesh of the holding cell, Espinoza could see Cardoza's injuries— scratches and "a little bit" of blood on his forehead. Cardoza told Marsh he was going to sue the officers for what they had done to him. In addition, Cardoza requested "an excessive force video" to document his internal prison complaint against the officers.
About an hour after Cardoza was locked in the holding cell, Espinoza tried to conduct a videotaped interview with Cardoza regarding his excessive-force complaint. Espinoza started the camera, introduced himself, and stated the reason for the interview. He videotaped "an overview [of Cardoza], his whole body sitting down in a chair." Cardoza then told Espinoza that he (Espinoza) had been involved in the incident and Cardoza felt that Espinoza would be biased in the investigation. Espinoza stopped the interview and rewound the videotape. He estimated that he had recorded Cardoza for about a minute to a minute and a half.
Lieutenant John Callow then tried to videotape an interview with Cardoza. Cardoza told Callow he did not want to say anything that "they could try to use against [him]." Callow never started the camera. Instead, he turned it and the camera equipment over to Lieutenant Kavanaugh.
On October 28, 2009, defense counsel filed a motion to compel discovery seeking any videotapes of interviews with Cardoza. (Cardoza testified that another videotape was made by Lieutenant Pena about a week or week and a half after the incident.) A prison report prepared by Lieutenant Kavanaugh suggested the existence of a brief interview videotape. Kavanaugh wrote: "A video taped interview was initiated as medical examination revealed inmate Cardoza had suffered head injury. Inmate Cardoza's refusal to cooperate with the interviewer was videotaped." When defense counsel later made an informal discovery request for the videotape, however, the deputy district attorney responded, "There is no physical videotape."
The importance of the videotape for the defense was to show what Cardoza looked like immediately after the incident. Cardoza alleged he was the victim of excessive force and suffered various injuries—a cut and laceration on the right side of his forehead, which was bleeding, a cut on the left side of his forehead, swelling and redness on his cheek, welts on his wrists and ankles, a swollen finger, and cuts on his fingers. Defense counsel asserted that the interview videotape could confirm the seriousness of the injuries, potentially bolstering Cardoza's claim that he was the victim, not the perpetrator, in support of a claim of self-defense.
A hearing on the motion to compel was conducted on November 20, 2009. Espinoza and Callow testified about their attempts to interview Cardoza, as described above. Correctional Officer Scaife (one of the three victims in this case) then testified in his capacity as evidence officer of the Investigative Services Unit at Corcoran. Scaife brought to the hearing an eight-millimeter videotape, which bore a sticker with Cardoza's name and incident log numbers on it.
Scaife explained that the videotape was never processed into evidence. Rather, he had obtained the videotape from the Use of Force Coordinator, an employee who reviews all incidents where force is used by correctional staff. Scaife had reviewed the videotape and testified that it was blank. There was no indication where the videotape came from or who was its author. In other words, Scaife could not say whether the videotape was the one Espinoza had used for his aborted interview with Cardoza back in 2006. At the conclusion of the hearing, the trial court ordered the parties to meet and confer and, if possible, arrange to view the videotape to confirm that it was blank.
At trial, after Cardoza testified, defense counsel called Scaife as a witness. Scaife testified that he worked in the Investigative Services Unit and had been in charge of the evidence room. Defense counsel then asked if Scaife recalled the hearing on the motion to compel, at which point the prosecutor objected on relevance grounds.
Outside the presence of the jury, defense counsel said he planned to elicit testimony from Scaife that he had control of the evidence room and provided the blank videotape with Cardoza's name on it. The point was that Scaife was also an alleged victim in the case and had an interest in not releasing a videotape that would show the extent of Cardoza's injuries. Defense counsel argued: "[W]hen I had requested these videos I get a blank CD. So the relevance is to impeach his credibility that my client did suffer injuries, the video showed that he had a bias in this case and interest."
The trial court recalled the hearing on the motion to compel. "[A]t that November 20th, 2009 hearing, ... I believe Mr. Espinoza indicated he [rewound] the tape thereby, generally when you rewind something, you erase everything that you've put on it .... [¶] And I think that's the conclusion the Court came to that there was a blank, blank recording shall we say, concerning Espinoza's recording ... so at this point in time I don't see any reason to call this officer."
The prosecutor argued that defense counsel was trying to suggest Scaife erased the video or destroyed it during his time at the Investigative Services Unit, but "the video was found to be blank long before Officer Scaife was ever in charge of evidence or even in the ISU." Our review of the record cannot confirm the prosecutor's assertion. Scaife told the court he began working in the Investigative Services Unit in the summer of 2007 and was in charge of the evidence room starting in 2008. We find nothing in the record establishing that the videotape was found to be blank earlier than the summer of 2007.
The trial court ruled that further testimony from Scaife was not relevant. It reasoned: "[T]aking into consideration the hearing that it held back on November 20th, '09 as well as the offer of proof that is given at this point in time, finds that without anything more, the questioning ... is merely speculative at this point. [¶] ... [The tape] was blank, and there was no chain of custody. It was only received through a use of force officer, never booked into evidence, and . this officer was not taking any possession of the tape given or taken on ... November 19th, 2006."
On appeal, Cardoza contends the trial court abused its discretion by not allowing defense counsel to ask Scaife about his involvement with the videotape, and the court's error violated Cardoza's rights to due process and a fair trial. We disagree.
"'Under Evidence Code section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time. [Citation.]' [Citation.] A trial court's discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion. [Citation.] '"[T]he latitude section 352 allows for exclusion of impeachment evidence in individual cases is broad. The statute empowers courts to prevent criminal trials from degenerating into nitpicking wars of attrition over collateral credibility issues." [Citation.]' [Citation.]" (People v. Lewis (2001) 26 Cal.4th 334, 374-375.)
Cardoza argues that, if Scaife had testified, it would have appeared likely that he erased the videotape. He asserts there would be no reason to do so if the videotape supported the officers' version of events. Therefore, "the inevitable conclusion would be [the correctional officers] were lying and [Cardoza's] version was correct."
The trial court determined that this line of questioning was speculative. We agree that, under these circumstances, there was no abuse of discretion. As the court noted, Scaife testified that he obtained the videotape with Cardoza's name on it from the Use of Force Coordinator and there was no chain of custody. Although we may not agree with the trial court's assumption that rewinding a videotape erases it, we do agree that any inference about Scaife's credibility based on the existence of a blank videotape would be speculative.
Even if we assume the trial court erred, however, any error was harmless. Espinoza testified he had videotaped Cardoza immediately after the incident. In closing argument, defense counsel argued that the correctional officers used excessive force against Cardoza and he only acted in self-defense. To illustrate the point, in his opening statement, defense counsel told the jury, "[The officers] gave him an old-fashioned beat down" and "an old-fashioned kick-ass beat down." Counsel argued:
"Where are the photos? I asked officer, I believe it was Scaife, 'Was there any investigation done?' He said, 'No.' [¶] [I]f there was any investigation done, these officers were going to be in trouble, okay? ... [¶] What about a video? Well, we know Sergeant Espinoza said he took a video, that he initiated it. Maybe he didn't complete it, but he had at least video footage of Mr. Cardoza's injuries, okay? That it was on. He acknowledged that ....[¶] We can't even show you the video. Mr. Cardoza testified that there were two other videos. We don't even have that video."
Defense counsel presented Cardoza's defense of self-defense, and he argued that the absence of any videotapes or photographs showed that the correctional officers were not credible. Defense counsel implicitly asked the jury to infer from the absence of the brief interview videotape recorded by Espinoza that (1) the videotape showed Cardoza's injuries were so serious he was likely the victim of excessive force, and (2) the correctional officers or prison must have hidden or destroyed the videotape because it would have proved the officers engaged in misconduct.
We conclude that in reaching its verdict the jury must have rejected defense counsel's argument. Further, it is not reasonably probable that Cardoza would have obtained a more favorable result had defense counsel been permitted to elicit testimony from Scaife that, about three years after the incident, he obtained a videotape with Cardoza's name on it from the Use of Force Coordinator, and that videotape was blank. (See People v. Cunningham (2001) 25 Cal.4th 926, 999.)
We also reject Cardoza's constitutional claims. Cardoza failed to preserve any federal claims because he failed to object based on these grounds in the trial court. (People v. Wader (1993) 5 Cal.4th 610, 636.) Cardoza acknowledges that case law dictates that the asserted error is nonconstitutional, but argues the point to preserve his right to federal review of the issue. "Although the complete exclusion of evidence intended to establish an accused's defense may impair his or her right to due process of law, the exclusion of defense evidence on a minor or subsidiary point does not interfere with that constitutional right. [Citation.] Accordingly such a ruling, if erroneous, is 'an error of law merely,' which is governed by the standard of review announced in People v. Watson (1956) 46 Cal.2d 818, 836. [Citation.]" (People v. Cunningham, supra, 25 Cal.4th at p. 999.)
III. Prosecutorial misconduct
Cardoza claims the prosecutor committed prejudicial misconduct in his closing argument and during cross-examination of Cardoza. We address each instance of alleged misconduct.
"Under the federal Constitution, to be reversible, a prosecutor's improper comments must '"so infect[] the trial with unfairness as to make the resulting conviction a denial of due process."' [Citations.] '"But conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves '"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."'" [Citations.]' [Citation.]" (People v. Cunningham, supra, 25 Cal.4th at p. 1000.)
A. No videotape because Cardoza refused to cooperate
During his closing argument, defense counsel told the jury that no investigation of Cardoza's excessive-force claim was conducted; there were no photographs of Cardoza's injuries; and there was no videotape, even though Espinoza started a videotaped interview of Cardoza about an hour after the incident. He suggested that the officers knew what they had done was wrong and lied about Cardoza's conduct in order to avoid being sued or getting into trouble. He argued: "Mr. Cardoza testified that his injuries consisted of lacerations to the forehead, a couple of places on his wrists, on his legs and other parts of the body, okay? I don't have any photos to show you. I don't have any videos to show you. [¶] Unfortunately this is a situation where Mr. Cardoza is by himself. He has no one out for him. He does not control the investigation."
In his rebuttal, the prosecutor responded, "Now, the video or alleged videos, you know, Mr. Cardoza wasn't very cooperative when I tried to ask him questions about this, but I think you can deduce from the evidence the reason there's no video to show you is because Mr. Cardoza wouldn't cooperate. As soon as he made a complaint ... of excessive force, the first thing those officers did was follow per procedure and Sergeant Espinoza set up a video camera but Mr. Cardoza refused to be videotaped." Cardoza had another opportunity to have a videotaped interview, but "Mr. Cardoza wouldn't let that individual videotape him either because he wanted to see the reports, he talked about he didn't want them to be able to get anything on him.... The reason there's no video, I submit to you, is because of [Cardoza's] own behavior."
On appeal, Cardoza argues that it was willful misconduct for the prosecutor to tell the jury there was no videotape, and it was even more egregious to inform the jury that no videotape existed because Cardoza failed to cooperate. Defense counsel, however, did not object to the prosecutor's statements or request that the jury be admonished.
Generally, the failure to object forfeits a claim of prosecutorial misconduct on appeal, but Cardoza asserts that an objection would have been futile because the trial court had determined that the videotape was erased when Espinoza rewound it. (People v. Clark, supra, 52 Cal.4th at p. 960 [failure to object and request jury admonition excused if doing either would have been futile].) We disagree that an objection would have been futile. The trial court appeared to believe that Espinoza made a brief recording of Cardoza, but the recording was erased when the videotape was rewound. If defense counsel had objected to the prosecutor's statement that there was no videotape because Cardoza did not cooperate, the trial court may have sustained the objection, reasoning that the recording did exist at one time but was not available because it had been erased—not because of Cardoza's failure to cooperate.
In any event, the argument does not succeed on the merits. "When, as in the present case, the claim is based upon 'comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]'" (People v. Cunningham, supra, 25 Cal.4th at p. 1001.) Here, defense counsel suggested that the prison did not document Cardoza's injuries or investigate his excessive-force claim in order to cover up officer wrongdoing. He argued he had no photographic or video evidence to show the jury because Cardoza was not in control of the investigation.
In response, the prosecutor pointed out that the evidence showed the prison tried to conduct a videotaped interview of Cardoza immediately after the incident, but he twice refused to be interviewed. Therefore, the prosecutor argued, there was no videotape because Cardoza did not cooperate. Viewed in context, this was a fair comment on the state of the evidence. (People v. Medina (1995) 11 Cal.4th 694, 756.) The jury likely would have understood the prosecutor's argument to mean that there was no completed videotaped interview because Cardoza refused to participate when given the opportunity. "When we consider the challenged comments as a whole, we cannot conclude that the prosecutor used a 'deceptive' or 'reprehensible' method to persuade the jury." (People v. Cunningham, supra, 25 Cal.4th at p. 1001.) Consequently, we conclude there is no prosecutorial misconduct.
B. Vouching for correctional officers' testimony
During the trial, Espinoza agreed that an officer could be suspended, fired, or possibly placed in jail for using excessive force. Scaife testified that he had been a correctional officer for five and a half years and was working toward eventual retirement. He had never testified against an officer but said he would if he saw one do something inappropriate. Johnson said he had never testified against another officer in a trial. In the previous two years, Johnson estimated that he had reported officers who had done something inappropriate on two or three occasions.
Gillespie also said he had not testified in trial against another officer. Defense counsel asked, "Is it, because it's a good old [boys] club, [officers] don't testify against other officers; is that why?" Gillespie responded, "That is not true."
In his closing argument, defense counsel suggested the correctional officers lied to protect themselves and each other: "These are officers. Officers are real people, okay? Officers have kids. Families, they know that if they were to testify against one another potentially they could lose their job or [be] suspended, fired for criminal charges, okay? These are officers who are friends who are going to protect each other."
In his rebuttal, the prosecutor argued:
"[Defense counsel] talked about how, and he'd like for you to believe that all officers are loyal to each other and that they brought up the point that I think all three of them said they never testified against another officer. Well, if you think about it, would you expect them to, not because of loyalty, but how often do you think it is that an officer is accused of a crime in a trial? Probably not very often. They're not inmates. They're officers. They are professional law enforcement officers. They rarely commit crime, I think it's fair to say. But they all told you that they would and they have a vested interest in making sure that they're profession is kept clean and reputable, so that we don't have people coming into court and accusing them of these kinds of things. They have an interest in making sure they keep their force of good officers, and I think they would all tell you, and they did tell you, they wouldn't have any hesitation about reporting a bad officer."Again, defense counsel did not object.
Defense counsel did not object. Later, the prosecutor asked the jury:
"So imagine ... what would have had to happen for the defendant's story to be the truth. Why would all five of these gentlemen, career law enforcement officers, come in here and commit perjury, which obviously is a criminal offense in and of itself, risk their careers and their retirements and encourage the defendant's personal lawsuit? What motive would they have?"
On appeal, Cardoza complains that the prosecutor improperly vouched for the correctional officers. His counsel, however, did not object to the prosecutor's statements or request that the jury be admonished. As a result, Cardoza may not complain about this alleged prosecutorial misconduct on appeal. (People v. Medina, supra, 11 Cal.4th at p. 756.)
In any event, the argument fails on the merits. Defense counsel suggested that the correctional officers lied to protect their jobs and because they are friends. In response, the prosecutor pointed out that lying at trial would also put the officers' jobs at risk. This appears to be a fair response to a line of argument initiated by defense counsel. We agree with Cardoza that no evidence was presented to substantiate the prosecutor's statement that officers are probably not accused of crime very often. However, even assuming for the sake of argument this was improper, taken in context, we conclude there is no reasonable probability that Cardoza was prejudiced by the prosecutor's statement in this case. (People v. Padilla (1995) 11 Cal.4th 891, 946, overruled on another point in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
C. Propensity to commit crimes based on prior convictions
Cardoza's prior convictions were admitted for impeachment purposes and to prove the enhancement allegations. Cardoza contends that the prosecutor improperly argued that the prior convictions showed that he had a criminal character and propensity to commit crime. We are not persuaded.
In his rebuttal, the prosecutor compared the credibility of the witnesses:
"Let's talk about the background of the witnesses, background of the officers. We have here five non-felons. We have three sergeants because we know Officer Johnson has now been promoted to sergeant since this incident and we have two other officers. These are career law enforcement officers. This is their job. They all work everyday with felons who pose a threat to their personal safety, their careers, and their personal livelihood. There is no reason, and even Inmate Cardoza could come up with no reason, why these officers would single him out for their old-fashioned beat down as [defense counsel] called it. [¶] ... [¶] How about the background of the defendant? We have a ten time career felon here, all right? He was a felon before this incident. He was a felon during this incident. And he's still a felon. He was a felon after because we know, although you don't have any documents about this, he admitted he has additional convictions that he incurred after this incident between 2006 and now. Of his ten felonies six of these are anti-police, and I think that says a lot about his character and his personality. One of his recent convictions—"
At this point, defense counsel objected. The court observed that demeanor and background were relevant to credibility. Defense counsel responded, "I think he said character is what he was talking about now." The court then said, "Well, background I would assume would be character as well. [¶] You're only allowed to argue the points that were brought up in the middle of trial, during trial, Mr. [Prosecutor]." The prosecutor continued by identifying all of Cardoza's criminal convictions, but he did not argue that this showed a propensity to commit crime.
Later in his rebuttal, the prosecutor told the jury:
"Of course [Cardoza] immediately makes a complaint, excessive force, but because his personality is so anti-authoritarian he won't even cooperate in a process that's designed to help him. He won't even let the sergeant make the video of him immediately after the event has happened.Defense counsel made no objection, and at no point did he ask for a curative instruction. Once again, Cardoza's contention has been forfeited on appeal and fails on the merits.
"Why? Because he's always the victim. He's the eternal victim. Not only have these officers just unfairly beaten him up using excessive force, he believes that Sergeant Marsh is there to conspire with [them].
"And you know, again, he is, he has another opportunity to do a video and he doesn't do it. Why? Because he's anti-authoritarian. Because that is his nature. That is who he is. That's how he's always been, and that's who he will always be."
Evidence of a person's character is not admissible to prove his conduct on a specified occasion. (Evid. Code, § 1101, subd. (a).) Consequently, it would not be appropriate for a prosecutor to argue that prior convictions are evidence that a defendant committed a particular charged offense. In this case, however, the prosecutor did not make such an argument.
The prosecutor specifically told the jury that Cardoza's prior convictions could not be used as evidence of guilt in the current case:
"Now [defense counsel] said something about my using the priors to distract you. And I want to be clear that that is not why I'm using them.
First of all, I have to prove to you these prior allegations. I have to prove to you through these documents. But I want to be clear on how you use the prior convictions. I am not allowed to argue to you what we call 'propensity,' which means just because Mr. Cardoza has done similar things in the past means that he's guilty in this case. That's not what you're to use it for, and I don't ever want you to think that that's what I'm arguing to you.
"What you can use those prior convictions for is in determining his credibility as a witness. Whether or not he was being truthful to you when he got up there and testified yesterday."
The trial court also instructed the jury: "Consider the evidence presented on these allegations only when deciding whether the defendant was previously convicted of the crimes alleged, and for the limited purpose of assessing credibility. [¶] Do not consider this evidence as proof that the defendant ... committed any of the crimes with which he is currently charged or for any other purpose."
Although the prosecutor did use the words "character" and "personality" in relation to Cardoza's "anti-police" prior convictions, it was in a discussion of Cardoza's credibility as a witness, not as an explanation of his conduct during the incident with the correctional officers. When the prosecutor described Cardoza as "anti-authoritarian," he was explaining why Cardoza did not participate in a videotaped interview. The prosecutor never argued that Cardoza's anti-authoritarian or anti-police prior convictions were evidence that he was guilty of the charged offenses. Viewing the rebuttal argument as a whole, we do not believe the prosecutor's individual comments amount to misconduct. Given the prosecutor's admonition and the trial court's instructions to the jury, we conclude there is no reasonable likelihood the jury would have taken the complained-of comments in an objectionable way.
D. Provoking Cardoza on the witness stand
During the cross-examination of Cardoza, the prosecutor asked him whether he had withdrawn his internal prison complaint against the officers. After Cardoza responded no, the prosecutor asked to approach to show a document. Defense counsel objected. After a brief discussion, the reporter's transcript reflected the following:
"[Prosecutor]: Well, actually, your Honor, this [i.e., the document he intended to show the witness] is not a report. I'm not trying to refresh his recollection. He's denying something that I asked him, and I want to ask him why this piece of paper says that he withdrew his appeal [i.e., his prison complaint].
"THE COURT: If he knows.
"[Prosecutor]: If he knows.
"[Cardoza]: Your Honor, it doesn't say that.
"[Defense counsel]: Your honor, I renew my objection. The People are bringing just whatever document they want to and trying to read it verbatim.
"THE COURT: Hey, move back both of you.
"[Cardoza]: I was pointing at the paper.
"THE COURT: No sir, you too. Sit down, no more. [¶] Court's in recess for 15 minutes. Remember the admonition.
"[Cardoza]: This is his whole purpose."
Outside the presence of the jury, the trial court addressed Cardoza: "Mr. Cardoza, this is your second warning on the situation. I don't want anymore mark ups. The Court did note[] that you tend to grab the paper that was in [the prosecutor's] hand." The court told the prosecutor, "with respect to you, you know better than to lean on the witness' table like that.... [I]f you're going to be arguing, move away from the witness on the matter." The court continued, "Act professionally. Both of you." A recess was taken.
After the recess, there was a discussion about the document the prosecutor wanted to show Cardoza. The court ruled that the prosecutor could not question Cardoza about the document. The following discussion occurred, outside the presence of the jury: "[Defense counsel]: On a different matter .... Your Honor, we just took a break, 15 minutes, I believe because there was some type of—" The Court responded:
"We took a break because tensions were high. That's all that needs to be said. I think [everything] else understands the tensions were high.
"[Defense counsel]: Your Honor, I am concerned about my client's safety, and I would be asking that if the People were to approach that he not use a pen or pencil and [wave] it in front of my client. [¶] He asked permission, proper protocol is to ask permission to approach, to do so in such an aggressive manner.
"THE COURT: You're afraid [the prosecutor] might stab your client?
"[Defense counsel]: No, but maybe swipe at him. I don't know. I don't know. I'm just trying to prevent, earlier I objected, I asked for some protocol because I was concerned for exactly what did occur, I wasn't doing it ... because I felt Cardoza was going to do something to [the prosecutor], but it appears that [the prosecutor] is very emotionally caught up in this case, and I just wanted to ease out the tensions, you know, I knew that—
"THE COURT: Okay. [¶] I've heard enough. I have advised Mr. Cardoza, I've admonished [the prosecutor], I've cautioned you a couple times, [defense counsel].
"Again, I'm cautioning everybody, and as far as I'm concerned the matter is closed. You're all going to be acting professionally from here on out. That's fine. [¶] My bailiff will take control of the situation, and again, everybody's asking for permission to approach, if they're not given then they can highlight the documents, give them to the bailiff, and go that route. [¶] Again, I'm assuming you're all professional in this manner and can act accordingly from here on out."
On appeal, Cardoza argues that the prosecutor engaged in misconduct by trying to provoke a reaction from Cardoza. He posits, "It is reasonable to infer that a seasoned prosecutor would not approach a defendant charged with battery on correctional officers in this manner, a defendant whom the prosecutor himself had termed 'anti-authority' and violent, unless he wanted to provoke an outburst." We cannot agree. Cardoza's argument is speculative at best. From this record, we discern only that "tensions were high." We do not see that the prosecutor intended to provoke Cardoza.
Finally, we reject Cardoza's ineffective-assistance-of-counsel claim because we have concluded there was no prosecutorial misconduct, and any potential misconduct was harmless.
IV. Sentencing
As we have mentioned, Cardoza was convicted of assault on a peace officer with a deadly weapon, evading the police, and evading the police while driving the wrong way in Sacramento County in 2009. In the Sacramento case, case No. 07F11523, Cardoza was sentenced to a full term of 10 years for the assault offense (upper term doubled for prior strike), plus a consecutive one-third term of 16 months for evading, plus enhancements of five years for a prior serious felony and two years for two prior prison terms for a total of 18 years 4 months. The conviction for evading the police while driving the wrong way was stayed pursuant to section 654.
In the present case, the trial court sentenced Cardoza to a full term for gassing (count 1 of case No. 07CM7118) and consecutive one-third terms for the remaining counts (excluding count 5, which was stayed under § 654). The total, 17 years 4 months, was added to the sentence in the Sacramento case for a total prison term of 35 years 8 months. The trial court relied on section 1170.1, subdivision (c), to impose a full term for the gassing offense rather than one-third of the middle term.
On appeal, Cardoza contends the trial court erred and should have sentenced Cardoza pursuant to section 1170.1, subdivision (a). For the reasons set forth below, we agree.
Under section 1170.1, subdivision (a), when "a defendant is convicted of more than one offense carrying a determinate term [whether in a single proceeding or different proceedings], and the trial court imposes consecutive sentences, the term with the longest sentence is the 'principal term'; any term consecutive to the principal term is a 'subordinate term.' (§ 1170.1, subd. (a).) The court imposes the full term, either lower, middle, or upper, for the principal term. However, in general (there are exceptions), the court imposes only 'one-third of the middle term' for subordinate terms. (Ibid.)" (People v. Felix (2000) 22 Cal.4th 651, 655.)
A special scheme applies, however, for in-prison offenses. Section 1170.1, subdivision (c), provides: "In the case of any person convicted of one or more felonies committed while the person is confined in a state prison ... and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison. If the new offenses are consecutive with each other, the principal and subordinate terms shall be calculated as provided in subdivision (a)."
"It is well settled that under section 1170.1(c), a term for an in-prison offense or multiple in-prison offenses begins to run at the end of the prison term imposed for the original out-of-prison offenses. [Citations.] As one appellate court explained, in-prison offenses 'are exempt from the general sentencing scheme. [Citation.] A sentence under subdivision (c) is longer than a sentence imposed under subdivision (a) because the in-prison offenses are fully consecutive to the sentence for the offense for which the defendant was in prison. Using sentencing jargon "the in-prison offense is treated as a new principal term rather than as a subordinate term to the out-of-prison offense." [Citations.]' [Citations.] Thus, 'the term for an in-prison offense does not become part of the aggregate prison term imposed for those offenses which were committed "on the outside." Instead, the defendant is imprisoned for a total term consisting of the sum of his aggregate sentence computed under section 1170.1(a) plus the new aggregate term imposed under section 1170.1(c). [Citation.] The latter term starts to run at the end of the prison term imposed for the defendant's original "outside" offense. [Citation.]' [Citations.]" (In re Tate (2006) 135 Cal.App.4th 756, 764-765.)
Here, Cardoza committed his in-prison offenses in 2006 and was released from prison for his original out-of-prison offense in 2007. By the time Cardoza was sentenced for his in-prison offenses, he was in prison again for different out-of-prison offenses, which he committed in 2007. The issue is whether section 1170.1, subdivision (c), applies in these circumstances.
Our task in interpreting a statute "is to discern the Legislature's intent. The statutory language itself is the most reliable indicator, so we start with the statute's words, assigning them their usual and ordinary meanings, and construing them in context. If the words themselves are not ambiguous, we presume the Legislature meant what it said, and the statute's plain meaning governs." (Wells v. One2One Learning Foundation (2006) 39 Cal.4th 1164, 1190.)
Subdivision (c) of section 1170.1 deals with in-prison offenses and focuses on the person's commitment status at the time he commits the offense, not at the time he is sentenced. Subdivision (c) provides that a new prison term for an in-prison offense "shall commence from the time the person would otherwise have been released from prison." Under the most natural reading of the statute, "'the time such person would otherwise have been released from prison'" refers to the end of the prison term the person was serving at the time he committed the in-prison offense. Indeed, we have read section 1170.1, subdivision (c), in this manner previously, recognizing that the prison term for in-prison offenses is "imposed consecutively to the existing term a defendant is serving at the time the new offenses are committed." (People v. Lamont (1986) 177 Cal.App.3d 577, 584 (italics added), disapproved on another point in People v. Arant (1988) 199 Cal.App.3d 294, 298.)
Consequently, if at the time he was sentenced Cardoza was still serving his prison term for the offense for which he was in prison at the time he committed the in-prison offenses, section 1170.1, subdivision (c), would apply and he would be sentenced to a full principal term for the gassing offense. Since he was not in prison for his original offense at the time he was sentenced, the general sentencing scheme of section 1170.1, subdivision (a), applies.
In other words, subdivision (c) of section 1170.1 does not apply where a defendant is in prison for an original out-of-prison offense when he commits an in-prison offense, he subsequently is released from prison on the original out-of-prison offense, and still later he is incarcerated again on a different offense. To read "the time the person would otherwise have been released from prison" (§ 1170.1, subd. (c)) to refer not only to the prison term being served at the time of the in-prison offense, but also to any other prison term the defendant is sentenced to in the future—after the in-prison offense has been committed—is too strained an interpretation.
Further, even if we were to assume for the sake of argument this latter interpretation is also a reasonable construction of section 1170.1, subdivision (c), we would choose the interpretation that is more favorable to defendant. "[W]e must ... adhere to the ... well-settled principle of statutory interpretation that '"[w]hen language which is reasonably susceptible of two constructions ... in a penal law[,] ordinarily that construction which is more favorable to the offender will be adopted. [¶] The defendant is entitled to the benefit of every reasonable doubt, whether it [arises] out of a question of fact, or as to the true interpretation of the words or the construction of language used in a statute." [Citations.]' [Citation.]" (People v. Arant, supra, 199 Cal.App.3d at p. 297.)
We are not persuaded by the People's arguments that section 1170.1, subdivision (c), should apply in this case. The People observe that the purpose of the statute is to punish in-prison offenses more harshly than offenses committed out of prison. (See, e.g., People v. White (1988) 202 Cal.App.3d 862, 869 ["The Legislature wanted in-prison crimes to be punished more severely than crimes committed 'on the outside'"].) Yet, it is not the case that every in-prison offense is sentenced as a full principal term. For example, in People v. Venegas (1994) 25 Cal.App.4th 1731, 1744, the court held that, after a defendant has been sentenced under section 1170.1, subdivision (c), to a full principal term for an in-prison offense, that defendant may not be sentenced to another full principal term for a later in-prison offense committed while the defendant is still serving his original prison term. In rejecting the argument for harsher punishment, the court recognized, "we can serve the legislative purpose of harsher punishment without contravening or going beyond the language of the statute." (Venegas, supra, at p. 1744.) Likewise, in this case we will not go beyond the language of the statute in order to ensure harsher punishment. Of course, should Cardoza commit a new in-prison offense and he is sentenced while he is still serving his current prison term, the sentence for the new in-prison offense will be governed by section 1170.1, subdivision (c). (See People v. Reed (1993) 17 Cal.App.4th 302, 306-307.)
We conclude that the trial court erroneously sentenced Cardoza to a full 10-year term on the gassing offense in case No. 07CM7118 while he was also serving a full 10-year term for assault on a peace officer with a deadly weapon in the Sacramento case, resulting in an unauthorized sentence. Under section 1170.1, subdivision (a), the court should have aggregated the Sacramento case and the two current cases, sentencing one offense as the principal term and the remaining offenses as subordinate terms. The sentence is vacated and the case is remanded to the trial court to impose the appropriate sentence pursuant to section 1170.1, subdivision (a). (People v. Massengale (1970) 10 Cal.App.3d 689, 693.)
V. Cumulative error
Cardoza asserts that cumulative errors tipped the scale against him and made his trial unfair. (See, e.g., People v. Hill, supra, 17 Cal.4th at pp. 844-845.) We disagree. We have concluded that the trial court did not abuse its discretion by admitting prior convictions for impeachment, reunifying the trial, and precluding certain questions of Scaife. We have also concluded that the prosecutor did not engage in misconduct. We considered the possibility that the prosecutor's comments to the effect that (1) correctional officers are not accused of crime often, and (2) Cardoza's prior convictions demonstrate an anti-authoritarian and anti-police tendency were improper and found the comments harmless. There is no reasonable probability that the comments, taken together, affected the outcome.
VI. Custody credit
In a supplemental letter brief filed with the court on January 25, 2011, Cardoza contends the abstract of judgment should be amended to add custody credit for the actual days served in prison in the Sacramento case, case No. 07F11523. The People agree.
When a court resentences a defendant to a single aggregate term pursuant to California Rules of Court, rule 4.452, the court must credit him with all actual days spent in custody, whether in prison or jail. (People v. Saibu (2011) 191 Cal.App.4th 1005, 1012-1013.) For this reason, we remand to the trial court to correct the abstract of judgment to include both the presentence custody credit earned in the present case and the actual days Cardoza has served in custody (in prison or jail) in the Sacramento case, case No. 07F11523.
California Rules of Court, rule 4.452 implements section 1170.1, subdivision (a). It provides in part: "If a determinate sentence is imposed under section 1170.1(a) consecutive to one or more determinate sentences imposed previously in the same court or in other courts, the court in the current case must pronounce a single aggregate term, as defined in section 1170.1(a), stating the result of combining the previous and current sentences."
--------
DISPOSITION
The sentence is vacated and the trial court is directed to sentence Cardoza pursuant to section 1170.1, subdivision (a). In addition, the trial court is directed to correct the abstract of judgment to include custody credit for the actual days Cardoza has served in custody in case No. 07F11523, as well as the presentence custody credit he earned in this case. The trial court shall prepare an amended abstract of judgment and forward it to the appropriate authorities. The judgment is affirmed in all other respects.
_________________________
Wiseman, Acting P.J.
WE CONCUR:
_________________________
Poochigian, J.
_________________________
Detjen, J.