Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Thomas E. Kelly, Judge. (Retired judge of the Santa Cruz Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.), Super.Ct.No. BLF005255
Nancy Olsen, 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, Assistant Attorney General, Gil Gonzalez and Tami Falkenstein Hennick, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury found defendant Robert Castaneda guilty of two counts of robbery (Pen. Code, § 211), two counts of first degree burglary (§ 459), and one count of being a prisoner who attempted to escape by means of force (§ 4532, subd. (b)). In regard to the first count of robbery, the jury found true the allegation that defendant used a deadly or dangerous weapon in the commission of the felony. (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23).) As to the second count of robbery, the jury found true the allegation that defendant personally used a firearm during the commission of the offense. (§§ 12022.53, subd. (b), 1192.7, subd. (c)(8).)
All further statutory references will be to the Penal Code unless otherwise indicated.
In regard to the first count of first degree burglary, the jury found true the allegations that (1) defendant used a deadly or dangerous weapon in the commission of the felony (§§ 12022, subd. (b)(1), 1192.7, subd. (c)(23)), and (2) a person, other than an accomplice, was present in the residence during the burglary (§ 667.5, subd. (c)(21)). As to the second count of first degree burglary, the jury found true the allegation that a person, other than an accomplice, was present in the residence during the burglary. (§ 667.5, subd. (c)(21).) The trial court found true the allegations that defendant suffered three prior convictions that resulted in prison terms. (§ 667.5, subd. (b).) The trial court sentenced defendant to state prison for a term of 22 years 8 months.
Defendant makes two contentions. First, defendant contends the trial court erred by denying his Marsden motion. Second, defendant asserts that the trial court violated his due process rights by modifying an essential element of the jury instruction related to the escape offense, bifurcating the trial as to that element, and permitting the prosecution to reopen its case-in-chief as to that element. We affirm the judgment.
People v. Marsden (1970) 2 Cal.3d 118.
FACTUAL AND PROCEDURAL HISTORY
A. ROBBERIES AND BURGLARIES
The victim lived in an apartment in Blythe. In June 2009, the victim met a woman by the name of Socorro. The victim and Socorro went out on two or three dates during June 2009. When the victim was dating Socorro, she told him that she had a boyfriend, Andy, who was in prison and who would be released soon. The victim and Socorro did not date after June 2009. The victim knew Socorro’s stepfather, because the victim and the stepfather worked together at a ranch. Employees at the ranch were typically paid every Friday. The victim usually cashed his paycheck every Friday.
On a Friday in early August 2009, at approximately 10:00 p.m., Socorro and defendant went to the victim’s apartment. The victim did not know defendant. The victim opened the front door of his apartment when he heard Socorro or defendant knock. Defendant was holding a metal bar in his hand. The victim recognized the bar as a tool from the victim’s pickup truck. The bar weighed approximately eight to ten pounds and was used for working on irrigation systems. Defendant held the metal bar above his shoulder. Still holding the bar, defendant entered the victim’s apartment, and told the victim that he wanted money. Defendant said “nothing was free and that [the victim] had to give him [his] money.” The victim assumed that the robber was Socorro’s boyfriend, Andy, and that he wanted money because the victim had dated her.
The victim was afraid of being harmed by defendant. The victim told defendant that he did not have any money. Defendant walked further into the victim’s apartment and told the victim that it would be “best” if the victim gave defendant his money. The victim told defendant where his wallet was. Socorro retrieved the victim’s wallet from the closet. Socorro gave the wallet to defendant. Defendant took the money out of the victim’s wallet, and threw the wallet on a table. Defendant and Socorro left the victim’s apartment with the victim’s $260. Defendant left the metal bar outside the victim’s apartment. The victim did not contact the police.
On the night of Friday, August 28, 2009, another incident occurred. The victim was sleeping in his apartment when he heard a loud noise. The victim went to check if his front door was locked. As the victim approached the front door, the door was “bashed in, ” almost striking the victim. Defendant and a second man entered the victim’s apartment. Defendant had a revolver in his hand, and he touched the gun to the victim’s head. The men pushed the victim facedown onto the floor. Defendant yelled at the victim not to move, and asked the victim where his money was located. The victim said that his money was in his pocket. The victim felt his wallet and cell phone being removed from his pockets. Defendant took $350 and a cell phone from the victim. Defendant threw the victim’s wallet onto the floor. The victim went to a neighbor’s house and borrowed a telephone. The victim called the mother of his child, and asked her to contact the police.
The victim told the police that he was robbed by Andy, Socorro’s boyfriend. Blythe Police Officer Servando Iniguez discovered that Andy was still in prison at the time of the incidents in this case. Officer Iniguez showed the victim a photographic lineup, which included Andy’s photograph and defendant’s photograph, as well as four other photographs. The victim picked defendant’s photograph from the lineup “[w]ithout hesitation.” Defendant was located, and Officer Iniguez transported the victim to look at a three-person infield lineup. The victim selected defendant from the infield lineup.
B. ESCAPE
Officer Iniguez arrested defendant for robbery and burglary; he placed defendant in handcuffs and walked him across a parking lot, from the police department to the jail. As Officer Iniguez was opening the first gate to the jail grounds, defendant head-butted the officer’s lower chest/abdomen area. Officer Iniguez lost his balance, and defendant ran towards the parking lot. Officer Iniguez chased after defendant and radioed for assistance. Ultimately, defendant was apprehended.
C. DEFENSE
The police searched defendant’s residence within hours of the second robbery. Only $35 was recovered during the police investigation. Neither the victim’s cell phone nor a weapon was found during the search. Fingerprints were not taken from the metal bar. Defendant’s sister, Karina, testified that defendant was at her house on August 28, 2009-the night of the second robbery. Karina stated that defendant arrived at her house at approximately 4:00 p.m. Karina left her house at approximately 8:30 p.m., and defendant stayed at the house to babysit. Karina returned home approximately four hours later, around midnight, which was approximately the same time that the police arrived at her house.
D. MARSDEN MOTION
At the beginning of the sentencing hearing, defendant made a Marsden motion. Defendant asserted that his trial attorney, Ronnie Hettena, had represented Socorro or Andy in a similar case possibly involving the same victim. Defendant contended that he wanted the mother of his children, Jodi, to testify, and that he asked Hettena to present her as a witness. Defendant also complained that Hettena never visited him and that they never talked about defendant’s case.
Hettena explained that Jodi would have testified about defendant’s character, which would have opened the door for the prosecution to impeach her testimony. Hettena asserted he was concerned that such a trial strategy would have harmed defendant. The trial court agreed that calling Jodi as a witness would have allowed the prosecution to ask about defendant’s “pretty extensive criminal history.”
In regard to communication, Hettena stated that he met with defendant in September 2009, while defendant was seated in the jury box. Hettena recalled that defendant was given a plea offer, which defendant declined. Defendant and Hettena then discussed the case. Hettena talked to defendant about the facts of the case prior to the preliminary hearing, and discussed the case with defendant at every court appearance. According to Hettena, the court appearance discussions took place on October 22, 2009, November 7, 2009, November 10, 2009, December 28, 2009, January 4, 2010, and January 6, 2010. The trial started on January 11, 2010. Hettena stated that he talked about defenses with defendant, and Hettena listed a variety of possible witnesses that were discussed, such as defendant’s son and defendant’s mother. Hettena said that he contacted all of the possible witnesses via telephone and “spoke with a lot of them.”
As to the alleged conflict of interest, Hettena stated that he could not remember if he represented Socorro or Andy. The trial court located Socorro’s file and found that Hettena was her trial attorney for a robbery case that was dismissed on December 15, 2008, which was more than six months before the incidents in the instant case. In regard to Socorro’s prosecution for the acts involving the victim, Hettena recalled that law enforcement and/or the prosecution had been unable to locate Socorro. The trial court recalled the victim testified that these two incidents were the first time that he had been a victim of robbery, and therefore, the trial court reasoned, this victim was not the same victim in Socorro’s 2008 case.
The trial court asked Hettena if he felt there was a conflict given the lack of factual nexus between Socorro’s 2008 case and the instant case. Hettena stated that he did not believe there was a conflict of interest, and that at the time of trial he had not recalled representing Socorro. Based upon the record, the trial court denied the Marsden motion.
DISCUSSION
A. MARSDEN MOTION
Defendant contends that the trial court erred by denying his Marsden motion. We disagree.
“‘When a defendant seeks new counsel on the basis that his appointed counsel is providing inadequate representation-i.e., makes what is commonly called a Marsden motion [citation]-the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance. A defendant is entitled to relief if the record clearly shows that the appointed counsel is not providing adequate representation or that defendant and counsel have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. Substitution of counsel lies within the court’s discretion. The court does not abuse its discretion in denying the motion unless the defendant has shown that a failure to replace counsel would substantially impair the defendant’s right to assistance of counsel. [Citation.]’ [Citation.]” (People v. Carter (2010) 182 Cal.App.4th 522, 527.)
In regard to calling Jodi as a witness, Hettena explained that he did not call Jodi due to a tactical decision. Hettena expressed concern that Jodi would be cross-examined about defendant’s criminal history, and that her testimony would ultimately be more harmful than helpful to defendant. Stated differently, defendant’s complaint regarding Jodi’s testimony concerns a tactical decision. There is no Marsden error where the complaint of inadequacy relates to tactical disagreements. (People v. Dickey (2005) 35 Cal.4th 884, 922.)
As to communication, it appears from the record that Hettena spoke to defendant multiple times. The record reflects that Hettena and defendant were present together in court on the following days: October 1, 2009, October 22, 2009, November 10, 2009, December 29, 2009, January 4, 2010, January 6, 2010, and January 8, 2010. The first day of trial was January 11, 2010. Hettena stated that he spoke to defendant about the case at all of the court appearances. Hettena offered, as proof of those discussions, the names of potential defense witnesses who had been discussed. Based upon the record, it appears that the trial court did not abuse its discretion in denying the Marsden motion on this point, because it seems that Hettena communicated with defendant on a fairly regular basis, and discussed meaningful topics related to the defense. (See generally People v. Valdez (2004) 32 Cal.4th 73, 96 [number of attorney-client visits does not establish attorney incompetence].)
Next, we address the conflict of interest issue. Conflicts of interest can arise when an attorney seeks to represent a client with interests that are potentially adverse to a former client of the attorney. (In re Charlisse C. (2008) 45 Cal.4th 145, 159.) When successive representation is an issue, “‘the chief fiduciary value jeopardized is that of client confidentiality.’ [Citation.]” (Ibid.) In order for an attorney to be disqualified due to a conflict based on successive representation, it must be shown that there is a substantial relationship between the subject matter of the previous case and the current case. (Flatt v. Superior Court (1994) 9 Cal.4th 275, 283-284.)
Socorro’s prior case involved a robbery; however, the matter was dismissed in December 2008-more than six months prior to the crimes in the instant case. Further, the victim testified that he met Socorro in June 2009; therefore, it can be inferred that a different victim was involved in Socorro’s 2008 case. Based upon the foregoing, it does not appear that there is a substantial relationship between the instant case and Socorro’s 2008 case, because different victims were involved, and more than six months elapsed between the 2008 dismissal and the offenses in the instant case. As a result, the trial court did not err when it concluded that retaining Hettena would not substantially impair the defendant’s right to assistance of counsel. In sum, the trial court did not err by denying defendant’s Marsden motion.
Defendant contends that the trial court did not adequately inquire into Hettena’s conflict of interest. Defendant asserts that the trial court should have asked defendant “about the source of his information about the prior case, or when [defendant] first learned about the potential conflict, or whether [defendant] discussed this issue with trial counsel at any time prior to or during the instant trial.” Defendant asserts that the trial court did not make a substantive inquiry into the potential similarities between the two cases, and therefore the trial court erred.
“‘[N]o single, inflexible procedure exists for conducting a Marsden inquiry.’” (People v. Lopez (2008) 168 Cal.App.4th 801, 814.) In the instant case, the trial court asked defendant about the alleged problems, asked Hettena about the alleged problems, reflected upon the court record, and reviewed the court file related to Socorro’s 2008 case. Although defendant may have preferred a different inquiry, we are not persuaded that the trial court’s inquiry was inadequate, because the trial court considered a variety of statements and records when ruling on the Marsden motion.
B. DUE PROCESS
1. PROCEDURAL HISTORY
After the close of evidence, in regard to the escape charge (§ 4532), Hettena moved the court to enter a judgment of acquittal based upon insufficient evidence. (§ 1118.1.) On the morning of January 13, 2010, the trial court and the trial attorneys “had a couple-hour discussion involving [the] 1118.1 motion, ” off the record. The next day, on the record, the trial court summarized the hours of discussion.
The court stated that it agreed with the defense that the escape charge had not been proven. (§ 4532.) Specifically, the court found the evidence insufficient because defendant escaped from the custody of the police officer, but defendant had not yet been booked into the jail. The prosecutor requested permission to reopen its case on the basis that defendant was on active parole, and therefore in constructive custody of the prison when he escaped. Defendant’s trial counsel objected to reopening the case and objected to the jury learning that defendant was a parolee, because the evidence would be prejudicial and there was no voir dire on the issue of defendant’s criminal history.
Section 4532, subdivision (b) provides: “(1) Every prisoner arrested and booked for, charged with, or convicted of a felony, ... who is confined in any county or city jail, ... who escapes or attempts to escape from a county or city jail, prison, ... or from the custody of any officer or person in whose lawful custody he or she... is guilty of a felony.... [¶] (2) If the escape or attempt to escape described in paragraph (1) is committed by force or violence, the person is guilty of a felony, punishable by imprisonment in the state prison for a full term of two, four, or six years to be served consecutively to any other term of imprisonment.” (Italics added.)
The prosecutor offered to bifurcate the trial. The bifurcation would work as follows: During the first portion of the trial, the jury would be instructed on all the elements of the escape charge, except for the booking element; then, if the jury found all those elements were satisfied, the jury would reassemble, evidence would be presented on the element of defendant’s parole status, and the jury would deliberate as to that one element.
Hettena objected to the trial court modifying the jury instruction “just to get the escape charge in.” Hettena argued that the trial court worked with the prosecutor to modify the jury instruction and complained that the courtroom was “not a classroom.” Hettena argued that the court should dismiss the escape charge or declare a mistrial as to the escape charge.
The prosecutor conceded that failing to prove defendant’s parole status was “an oversi[ght].” However, the prosecutor argued that (1) defendant knew he was on parole when he escaped; (2) defendant knew the offenses that he was charged with; and (3) the prison priors (§ 667.5) had already been bifurcated, and therefore the issue of defendant’s parole status would likely have been bifurcated too if the issue had been raised in a timely manner.
The trial court denied the defense’s section 1118.1 motion and granted the prosecutor’s request to reopen evidence. The jury returned a guilty verdict on the escape charge, without the booking/parole element. Defendant requested that the jury not return to hear the booking/parole issue, and that the element be decided by the trial court. The trial court dismissed the jury. A parole agent from the California Department of Corrections and Rehabilitation testified that on August 28, 2009, defendant was on active parole. After the prosecution rested, the defense submitted. The trial court found that defendant was on active parole status on August 28, 2009. Defendant was convicted of being a prisoner who attempted to escape by means of force. (§ 4532, subd. (b).)
2. DISCUSSION
Defendant separates his due process argument into two sections. Defendant’s first argument focuses on the trial court’s decision to bifurcate the booking/parole element. Defendant’s second argument centers on the trial court’s ruling permitting the prosecution to reopen its case-in-chief.
a) Reopening the Case-in-Chief
We start with defendant’s second argument. Defendant contends that the trial court erred when it permitted the prosecution to reopen its case-in-chief. We disagree.
Section 1093 provides the procedural order for criminal trials: the prosecution presents its case, the defense then presents its evidence, which is then followed by rebuttal testimony only, “unless the court, for good reason, in furtherance of justice, permit[s the parties] to offer evidence upon their original case.” (§ 1093, subds. (c) & (d).) Section 1094 also provides for a departure from the typical procedure “[w]hen the state of the pleadings requires it, or in any other case, for good reasons, and in the sound discretion of the court.” “Courts have interpreted sections 1093 and 1094 as giving a trial court ‘broad discretion to order a case reopened and allow the introduction of additional evidence [citations].’ [Citation.] ‘No error results from granting a request to reopen in the absence of a showing of abuse. [Citation.]’ [Citation.]” (People v. Riley (2010) 185 Cal.App.4th 754, 764 (Riley).)
A trial court has discretion to allow the prosecution to reopen its case-in-chief after a section 1118.1 motion “‘so long as the court is convinced that the failure to present evidence on the issue was a result of “inadvertence or mistake on the part of the prosecutor and not from an attempt to gain a tactical advantage over [the defendant].” [Citation.]’ [Citation.]” (Riley, supra, 185 Cal.App.4th at pp. 764-765, fn. 6, 766.) We review the trial court’s ruling on the motion to reopen for an abuse of discretion. (Id. at p. 767.)
The prosecutor stated that the failure to offer evidence of defendant’s parole status was “an oversi[ght].” The prosecutor explained that proving defendant’s parole status would be fairly simple because “there’s no witness or anything that the defense would be able to bring in to say he was not on parole.” At the bifurcated hearing, defendant’s parole status was proven with the testimony of one witness and court records; the defense submitted on the issue. Since the element of parole status was fairly easy to prove, it appears likely that the failure to offer the proof was truly an oversight on the part of the prosecutor. In other words, there does not appear to be a strategic reason for failing to offer the evidence during the original case-in-chief. Given the apparent mistake on the part of the prosecutor, we conclude that the trial court did not abuse its discretion by permitting the prosecution to reopen its case-in-chief. (See Riley, supra, 185 Cal.App.4th at pp. 766-767 [No abuse of discretion found in reopening the case where the prosecutor “simply made a mistake and failed to present evidence that the prosecution had in its possession.”].) Since there was no error, defendant was not denied due process. (People v. Sanders (1995) 11 Cal.4th 475, 510, fn. 3.)
Our reasoning follows the reasoning of Riley, which defendant argues is distinguishable from the instant case. In Riley, the prosecutor failed to present evidence that the amount of marijuana in the defendant’s possession was “‘usable.’” (Riley, supra, 185 Cal.App.4th at p. 759.) Evidence had been offered that the defendant possessed 0.5 grams or 0.47 grams of marijuana, but no evidence had been offered as to whether those amounts constituted a “usable” amount. (Id. at pp. 759-760.) The defendant made a section 1118.1 motion arguing that the prosecutor failed to prove the element of a “usable quantity.” (Ibid.) The trial court simultaneously considered the section 1118.1 motion and the prosecution’s motion to reopen its case. (Id. at p. 761.) The trial court decided to treat the matter as an inadvertent omission of evidence. (Id. at p. 762.) The trial court denied the defendant’s section 1118.1 motion, and permitted the prosecution to reopen its case for the purpose of establishing the element of a usable amount. (Ibid.)
The appellate court affirmed the trial court. (Riley, supra, 185 Cal.App.4th at p. 770.) The appellate court reasoned, “The purpose of section 1118.1 is to provide a procedure by which a defendant may promptly terminate a fatally deficient prosecution, not to provide the defendant with a tactical trap when the prosecution inadvertently fails to present evidence in its possession.” (Id. at p. 766.) The appellate court concluded that the prosecutor “simply made a mistake and failed to present evidence” that it had in its possession. (Ibid.) Accordingly, the appellate court held that the trial court did not abuse its discretion by permitting the prosecution to reopen its case. (Id. at p. 767.)
Defendant asserts that the instant case is distinguishable from Riley because, in Riley, the prosecutor offered evidence regarding the marijuana but failed to establish that it was a “‘usable’” amount, while the prosecutor in the instant case did not offer any evidence about defendant’s parole status. Defendant has only pointed out a factual distinction. It is not clear if defendant is arguing that the record does not support a conclusion that the prosecutor mistakenly forgot the evidence, or if the defendant is asserting a different theory. Since it is not clear why defendant pointed out this factual distinction, we do not address the point any further.
Second, defendant asserts that Riley is distinguishable from the instant case because, in the instant case, the trial court took an active role in remedying the prosecutor’s failure to offer sufficient evidence. Assuming, without deciding, that defendant is correct, we note that the cases are not distinguishable on this point. In Riley, when the trial court was discussing the defendant’s section 1118.1 motion, the court said to the prosecutor, “‘you have a right to... request that... your case be reopened to allow in testimony with respect to useable amount, which I’m assuming you would make.’ The prosecutor said, ‘I would absolutely [make that] motion.’” (Riley, supra, 185 Cal.App.4th at p. 760.) Based upon the summary of facts in Riley, it appears that the trial court suggested the resolution in that case as well. Consequently, we are not persuaded that Riley is distinguishable from the instant case.
b) Bifurcating
Defendant contends that the trial court violated his due process rights when it “abandoned its role as a neutral arbitrator, ” thereby assisting the prosecution in remedying the failure to prove the booking/parole status element. It is not clear from defendant’s appellate briefs if defendant is asserting (1) that the trial court showed judicial bias by moving, on its own motions, for the trial to be bifurcated and for the prosecution to reopen its case, or (2) the trial court showed judicial bias by exceeding its statutory authority in granting the motion for bifurcation. Out of an abundance of caution, we will address both arguments.
i) Motions by the Court
We first address the issue of whether the trial court showed judicial bias by making its own motions to bifurcate the trial and reopen the case in chief. We disagree that the trial court erred in this regard.
We independently review the record. (People v. Carter (2005) 36 Cal.4th 1215, 1244.) When the trial court summarized the hours-long, off-the-record discussion, it started the discussion by saying, “The DA wanted to reopen, and the issue, the reason that I thought a 1118.1 [motion] was appropriate was the defendant was, he did escape from the custody of the arresting officer, but he hadn’t been booked.” It appears from this statement that the idea of reopening the case came from the prosecutor, not the trial court. The trial court stated that the defense was opposed to reopening the case-in-chief because evidence of defendant’s parole status might prejudice the jury. The trial court stated, “And the People’s response was we could avoid any prejudice by bifurcating the trial.” Based upon the trial court’s summary of the long discussion, it appears the prosecutor requested that the case be reopened and that the booking element be bifurcated. Accordingly, it does not appear the trial court suggested remedies for the prosecution’s failure to provide evidence on the booking/parole element. In turn, we conclude defendant was not denied due process.
Defendant’s argument relies on the following statements the trial court made when summarizing the hours-long discussion:
“The Court: And I knew we bifurcated the issue of the [enhancement] priors from the jury. And so the issue of what to do in the way of jury instructions and whether to grant the 1118[.1] or not to grant it, I think the
“[Hettena]: May I interrupt?
“The Court: -that I crafted of having a bifurcated trial the
“[Hettena]: Could I interrupt?
“The Court: -is fair to both sides.”
Defendant asserts that the trial court’s statements are an “admi[ssion] that it crafted the remedy of bifurcating the trial after the court realized the prosecution failed to present evidence of the booking element of the escape offense.” Contrary to defendant’s position, the trial court’s statements do not reflect that it initiated the idea of bifurcating the trial. Rather, we interpret the trial court’s statement that it “crafted” a remedy as the trial court summarizing the fact that it elected bifurcation from the various remedies offered by the defense and the prosecution (the various remedies included granting the section 1118.1 motion, mistrial, or bifurcation). In sum, we find defendant’s argument unpersuasive.
ii) Statutory Authority
We now consider whether the trial court erred by granting the motion to bifurcate. We conclude that the trial court did not err.
In ruling on a motion to bifurcate, the trial court “should consider the potential prejudicial effect of admission of evidence that the defendant has suffered the alleged prior conviction.” (People v. Calderon (1994) 9 Cal.4th 69, 79.) “The determination [of] 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.” (Ibid.)
In the instant case, the prosecutor mistakenly failed to present evidence of defendant’s status as a parolee. As set forth ante, there was good reason to permit the prosecution to reopen its case; however, defendant argued that it would be prejudicial to reopen for the sole purpose of showing that defendant was a parolee. We agree that undue prejudice could have resulted if evidence were reopened for the sole purpose of proving that defendant was a parolee, because such a procedure could cause undue focus on defendant’s criminal history. (See People v. Hernandez (2004) 33 Cal.4th 1040, 1048 [prejudice may ensue if jury learns of a defendant’s prior convictions].) Due to this risk of prejudice, it was reasonable for the trial court to bifurcate the issue of defendant’s parole status. In other words, the trial court did not abuse its discretion. Since we find no abuse of discretion, we conclude that defendant was not denied due process. (People v. Sanders, supra, 11 Cal.4th at p. 510, fn. 3.)
c) Conclusion
In sum, we conclude that the trial court did not violate defendant’s rights to due process.
DISPOSITION
The judgment is affirmed.
We concur: HOLLENHORST Acting P. J., KING J.