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People v. Colaneri

California Court of Appeals, Fourth District, First Division
Mar 18, 2008
No. D049487 (Cal. Ct. App. Mar. 18, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JOSEPH COLANERI, Defendant and Appellant. D049487 California Court of Appeal, Fourth District, First Division March 18, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of San Diego County No. SCN207862, Timothy M. Casserly, Judge.

IRION, J.

A jury convicted Joseph Colaneri of one count of assault by means likely to produce great bodily injury. (Pen. Code, § 245, subd. (a)(1).) The jury also found that Colaneri used a deadly weapon in committing the assault, and that he inflicted great bodily injury. (§§ 1192.7, subd. (c)(23), 1192.7, subd. (c)(8), 12022.7, subd. (a).) The jury found Colaneri not guilty of a second count of assault by means likely to produce great bodily injury. The trial court found that Colaneri had two prior strike convictions, as well as two prison priors (§§ 667, subd. (b)-(i), 667.5, sub. (b)), and sentenced him to 30 years to life in state prison under the Three Strikes law.

All statutory references are to the Penal Code unless otherwise indicated.

Colaneri appeals. He argues that his conviction must be reversed because the trial court abused its discretion in declining to replace his court appointed attorney, and in declining to declare a mistrial when one of the witnesses referenced the fact that Colaneri was on parole. Colaneri also contends that the trial court's findings with respect to his prior strikes must be reversed because those findings were not supported by substantial evidence. Finally, Colaneri contends that the trial court abused its discretion by declining to strike at least one of his prior strikes. As discussed below, we conclude that Colaneri's contentions lack merit, and affirm.

FACTS

On February 16, 2006, Gregory Mastrangelo was fixing the tire on his bicycle in a riverbed encampment near the intersection of State Highway 76 and Loretta Street in Oceanside. Mastrangelo's friend, Charles Ross, was nearby. Colaneri suddenly confronted the pair, wielding a knife. Colaneri "rushed" Ross with the knife, causing a minor wound to Ross's left shoulder and then punched Ross in the eye. Ross fled the scene. Mastrangelo told Colaneri, an acquaintance, to "knock it off." Colaneri attacked Mastrangelo, plunging the knife into Mastrangelo's chest. Fearing for his life, Mastrangelo fled up a rocky area to a nearby road to seek assistance. Mastrangelo reunited with Ross at the road, and together they flagged down a passerby who called 911. Paramedics arrived and transported Mastrangelo to a nearby airport for a helicopter "Life Flight" to Scripps Hospital in La Jolla.

Mastrangelo and Ross were later interviewed by police and identified Colaneri as their attacker. Mastrangelo also identified Colaneri in court, while Ross claimed in his testimony that he did not recall the assault and did not know Colaneri. The prosecution played tape recordings of police interviews with both Ross and Mastrangelo for the jury; in the recordings, each victim identified Colaneri as having committed the assault.

After the assault, Colaneri wrote a note to Mastrangelo that stated in part, "I'm sorry anyone is saying I stabbed you"; "please, come and see me we are friends and I should be able to explain my side to you first. I wish you all the love in the world so be cool and don't let me take the fall for this shit. . . . However, the cops figure I did it. Okay but don't go along with it you at least owe me that much. . . . Love Joe."

DISCUSSION

I

The Trial Court Did Not Abuse Its Discretion in Denying Colaneri's Marsden Motions

People v. Marsden (1970) 2 Cal.3d 118 (Marsden).

Colaneri contends that the trial court abused its discretion in denying his Marsden requests that the court replace his appointed counsel. We analyze this contention after summarizing the relevant procedural history.

A. Procedural History

Colaneri made three separate Marsden motions during the proceedings below. Colaneri's first request for substitution of his attorney was heard on May 19, 2006, less than a month prior to the then-scheduled trial date of June 8. During that hearing, the trial court informed Colaneri that his attorney, Jeff Reichert, "is an excellent lawyer" with "lots of experience," and noted that Reichert's pretrial efforts had obtained a favorable plea offer from the prosecution (given Colaneri's exposure to a life prison term as a third strike offender) of striking his prior strikes and stipulating to a nine-year prison term.

Colaneri stated that he was having trouble obtaining all the discovery materials from Reichert, and "what . . . happens is I get separated from Mr. Reichert" and "can't get in contact with him" because the prison "get[s] locked down . . . and I don't get to use the phone." Reichert informed the court that he had previously provided Colaneri with a copy of the redacted discovery materials, and that he had "made a copy of everything for him today." Reichert also explained that he had visited Colaneri in jail and had spoken with him "three times on the phone," providing Colaneri with information about his case and answering his questions.

When the trial court asked Colaneri if he had any further concerns, Colaneri stated he felt Reichert had not adequately pursued a challenge to the prosecution's use of police officer, rather than victim, testimony at the preliminary hearing. The court explained that the prosecution was permitted by law to rely on police officer testimony at a preliminary hearing. (See § 872, subd. (b) [stating that the "finding of probable cause" at a preliminary hearing "may be based in whole or in part upon the sworn testimony of a law enforcement officer . . . relating the statements of declarants made out of court offered for the truth of the matter asserted"].) Colaneri added that Reichert had yelled at him "unprofessionally" earlier that day, and he did not "like[] the way [Reichert] talked to [him]."

Colaneri had previously written a letter to the judge who presided over the preliminary hearing, relating his contention that he could not be bound over for trial due to the failure of Mastrangelo to testify at the preliminary hearing. The judge responded by letter that the victim's failure to appear "does not affect the bind over by the court" and suggested that Colaneri "discuss this matter" with his attorney.

Colaneri further explained that Reichert had advised him not to represent himself, saying, "I haven't fucked up your case. You should probably let me do it . . . ." Colaneri found the statement unprofessional. The court suggested that Reichert omit any "foul language" in speaking to Colaneri. Reichert stated this would not be a problem and promised not to "use any four letter words" in future discussions. The court then asked Reichert if he "would continue to represent Mr. Colaneri's interest professionally," to which Reichert responded that he would.

The court cautioned Colaneri that he had "cut [the court] off several times during the course of th[e] hearing" — at one point causing the bailiff to interject "shut it for just a second" and "[l]isten to what [the judge] has to say." The court stated, "I think frankly you would have issues probably with any lawyer because you don't let people finish their statements and you appear to be very angry. You do." The court suggested that Colaneri "listen to Mr. Reichert" and "[d]on't talk over him"; "in order to have somebody hear you, you have to listen to them as well. I think that's what's going on here. You really haven't been listening to Mr. Reichert."

At the conclusion of the hearing, the trial court ruled that despite the fact that Colaneri did not "like the way that [Reichert] has conducted himself," that "isn't a basis to relieve him as . . . counsel." The court set a status hearing for the next week, and asked that Colaneri and Reichert meet again to discuss the case before that date, after Colaneri had "cool[ed] off."

On May 23, Colaneri wrote a letter to the supervising judge, narrating what had occurred at the Marsden hearing, and seeking her intervention because Colaneri felt he had not been treated fairly by the "unfamiliar judge" who had heard the matter (and the bailiff who had interjected). Supervising Judge Marguerite Wagner provided a written response to Colaneri, noting that his Marsden request had been denied and adding that his letter contained "no indication that Mr. Reichert's representation is ineffective." Judge Wagner concluded the letter by stating, "it does not appear that you have any cognizable claim or request."

On June 2, 2006, Reichert provided the district attorney with a written discovery request that reflected requests for materials that Reichert concluded, after a "long phone conversation with Mr. Colaneri," were "well within reason." The request included "[a]ny hospital records." At the conclusion of the letter, Reichert noted that Colaneri would be making another Marsden motion that, if granted, would necessitate a continuance.

On June 14, the court held a second Marsden hearing. At the outset of the hearing, the court asked Colaneri to state "why you want a different lawyer; why Mr. Reichert is not representing you properly." Colaneri suggested that he had not received some of the discovery, although he indicated that this was "not . . . Mr. Reichert's fault," and noted that Reichert refused to file a Pitchess motion to obtain information regarding one of the officers in the case, Officer Stracke. (See Pitchess v. Superior Court (1974) 11 Cal.3d 531 [describing limited right of discovery for criminal defendants from law enforcement personnel files].) Reichert confirmed that the defense had received some late discovery, but he did not believe there was any "hay" to be "made of it" because the defense had ultimately received the materials, the delay did not appear to be "purposeful," and the materials (that Reichert had requested after "Mr. Colaneri . . . pointed out a couple of things") were not "of any moment." Reichert believed the Pitchess motion suggested by Colaneri to be ill advised because "a big [credibility] attack on Officer Stracke isn't going to go anywhere"; Stracke had tape-recorded the interviews with the victims and consequently the key to the case, in Reichert's opinion, was the victims' identifications of Colaneri on tape and in court and not the police investigation.

Colaneri also stated that he had not received any medical reports, although he was unable to articulate the significance of the reports to the case. The court responded that Colaneri was "grasping at straws" and "focusing on minutia and not on the key facts of the case." The court, then, denied Colaneri's request for new counsel on the ground that the disagreements Colaneri raised were a matter of trial tactics. The court stated that what Colaneri had "told [the court] so far is just simply not a basis to remove [Reichert] as your attorney."

After being found guilty at trial, Colaneri brought a third Marsden motion immediately prior to sentencing. In that hearing, Colaneri launched into a disjointed commentary on the trial, stating at one point, "I just pray that I'm not putting myself in a position that Mr. Reichert holds judgment on me." Colaneri again took issue with Reichert's yelling at him, and reiterated that he had not "received" medical "reports from Scripps Hospital, Mercy Air Six and the Oceanside Fire Department."

We deny Colaneri's request (made five days prior to oral argument) to unseal and include in the appellate record a letter that Colaneri purportedly submitted to the trial court in support of the presentencing Marsden request.

Asked to respond to Colaneri's wide-ranging contentions, Reichert stated while Colaneri's negative characterization of their relationship was exaggerated, there had been some yelling: if Colaneri "raised his voice to me, I raised it back. That's true." Reichert also stated that he had raised his voice when, after trial, Colaneri told him for the first time that he had indeed stabbed Mastrangelo, but had done so by accident; Reichert said he responded in a loud tone, "You made us proceed on a theory that you knew was fundamentally false." Reichert also stated there had been a long-standing disagreement between him and Colaneri as to the tactical value of attacking the veracity of the police officer testimony in the case.

At the conclusion of the hearing, the trial court found Colaneri not credible to the extent his version of events differed from Reichert's, and denied the request for substitution of counsel, noting that all Colaneri had demonstrated were differences as to trial tactics. The court stated Reichert had done "everything he possibly could to win the case," and there was "nothing" to indicate that Reichert should be replaced as counsel.

See People v. Smith (1993) 6 Cal.4th 684, 696 ("To the extent there was a credibility question between defendant and counsel at the [Marsden] hearing, the court was 'entitled to accept counsel's explanation' ").

B. Colaneri Fails to Demonstrate Any Abuse of Discretion

On appeal, Colaneri contends that he was "entitled to have his first [Marsden] request honored" because the trial court "failed to address the strain in [attorney-client] communication" and "instead merely relied on its own experience with Mr. Reichert as a competent attorney." In making this contention, Colaneri relies on excerpts from all three Marsden hearings, and contends that the record shows that he and his attorney had "become embroiled in an irreconcilable conflict making effective representation unlikely."

Colaneri does not explain how assertions made by Colaneri in the second, and particularly the third (posttrial), Marsden hearings are relevant to determining whether the trial court abused its discretion in denying the first Marsden motion. Nevertheless, we assume for purposes of our discussion that Colaneri is, in essence, challenging all three of the trial court's Marsden rulings.

A criminal defendant's right to counsel includes the right to substitution of an appointed attorney when that attorney is not providing constitutionally adequate representation. (See Marsden, supra, 2 Cal.3d 118.) When a defendant seeks to replace his appointed counsel, the trial court "must permit the defendant to explain the basis of his contention and to relate specific instances of inadequate performance." (People v. Smith (2003) 30 Cal.4th 581, 604.) Once this record is made, "[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." (Ibid.)

Ultimately, the decision as to whether "[s]ubstitution of counsel" is appropriate "lies within the court's discretion." (People v. Smith, supra, 30 Cal.4th at p. 604.) A trial court will not be deemed to have abused its discretion unless the defendant demonstrated in the lower court proceeding "that a failure to replace counsel would substantially impair the defendant's right to assistance of counsel." (Ibid.)

Colaneri fails to demonstrate an abuse of discretion in the instant case. Each time Colaneri raised an issue as to the adequacy of his counsel's performance, the trial court conducted a lengthy, confidential hearing during which Colaneri was asked "to explain the basis of his contention and to relate specific instances of inadequate performance." (People v. Smith, supra, 30 Cal.4th at p. 604.) At each hearing, Colaneri raised issues as to tactical disagreements (e.g., the failure to file a Pitchess motion) or isolated instances of conflict (e.g., raised voices, foul language) between him and his appointed counsel. These complaints did not require replacement of appointed counsel. (See People v. Cole (2004) 33 Cal.4th 1158, 1192 (Cole) [holding that neither " 'the number of times one sees his attorney, and the way in which one relates with his attorney' " nor "disagreement as to tactics" are sufficient to "compel discharge of appointed counsel"]; People v. Hill (1983) 148 Cal.App.3d 744, 753 ["disagreement between defendant and attorney on [tactical] matters is not a basis for substitution of counsel"].) Colaneri's contention that he had not been provided discovery as quickly as he would have preferred (a failing that appears to have been partly, or wholly, due to the prosecutor's late disclosure of materials) also did not warrant Reichert's removal from the case — particularly as the record reveals that when Colaneri raised issues as to omitted discovery, Reichert promptly drafted a written discovery letter seeking the pertinent materials from the prosecutor.

In his reply brief, Colaneri highlights a comment in the third Marsden hearing, where he stated he had never "received" medical "reports from Scripps Hospital, Mercy Air Six and the Oceanside Fire Department"; Colaneri argues that the trial court's failure to "inquire into the reasons for counsel's failure to provide appellant with the requested discovery" requires reversal. We disagree. "Neither Marsden nor any subsequent Supreme Court decision requires the court to question counsel when a motion to substitute appointed counsel is made." (People v. McElrath (1985) 175 Cal.App.3d 178, 184.) Thus, while it is widely recognized that the trial court generally should inquire of counsel during a Marsden hearing, a response from counsel is required only as to points for which "an explanation for counsel's attitude or conduct is 'necessary' to determine whether counsel can provide adequate representation." (McElrath, at p. 184; People v. Penrod (1980) 112 Cal.App.3d 738, 747 [same]; People v. Young (1981) 118 Cal.App.3d 959, 966 [same].) In light of Reichert's general responses during the colloquy with the trial court and his statement that "[t]here was really no doubt that someone had been stabbed, and the real issue was who did it," we do not believe the trial court abused its discretion in failing to inquire further as to the provision of medical records to Colaneri. Indeed, this is particularly true as Colaneri made the highlighted comment during the posttrial Marsden hearing, and the issue had no apparent relevance to Reichert's ability to provide effective representation at sentencing. (See People v. Smith, supra, 6 Cal.4th at p. 695 ["Whenever the [Marsden] motion is made, the inquiry is forward-looking in the sense that counsel would be substituted in order to provide effective assistance in the future"].) (Reichert stated at sentencing, without any dispute from the trial court or prosecutor, that Mastrangelo was released from the hospital the day after the stabbing and "made a full recovery.") Colaneri's reliance on People v. Groce (1971) 18 Cal.App.3d 292, 296, is unavailing. In Groce, there was no inquiry at all into counsel's conduct, and thus the case is easily distinguishable from the circumstances here where the trial court conducted three separate in camera hearings at which it solicited extensive input from Reichert regarding Colaneri's contentions.

The record of the Marsden hearing also does not demonstrate a strain in the attorney-client relationship that rose to the level of " ' "a total lack of communication preventing an adequate defense." ' " (People v. Smith, supra, 30 Cal.4th at p. 606.) It was clear from the record that Reichert and Colaneri were in regular communication regarding defense strategy and case developments, and while they may have disagreed at times on strategy or appropriate attorney-client demeanor, there was nothing to suggest these disagreements rose to such a level that they would prevent Reichert from providing an adequate defense. (People v. Smith, supra, 6 Cal.4th at p. 696 ["Although clearly some heated words were spoken between client and attorney . . ., that alone does not require a substitution of counsel absent an irreconcilable conflict"].)

In addition, the record supports the trial court's finding that to the extent the attorney-client relationship had become strained, the strain stemmed from Colaneri's focus on irrelevant "minutia" and his demeanor (as evidenced by his interactions with the trial court and the bailiff) that suggested Colaneri would have had similar "issues . . . with any lawyer." (People v. Smith, supra, 6 Cal.4th at p. 696 ["a defendant may not force the substitution of counsel by his own conduct that manufactures a conflict"]; People v. Smith, supra, 30 Cal.4th at p. 606 [no abuse of discretion in denial of Marsden motion even when defense counsel agreed that relationship had broken down because "[d]efendant did not show that defense counsel did anything to cause any breakdown in their relationship"].) Thus, the trial court could reasonably conclude that any problems in the attorney-client relationship were not irreconcilable — Colaneri needed only to give Reichert "a fair opportunity" for any attorney-client tension to dissolve. (Cole, supra, 33 Cal.4th at p. 1192 [" 'the trial court need not conclude that an irreconcilable conflict exists if the defendant has not tried to work out any disagreements with counsel and has not given counsel a fair opportunity to demonstrate trustworthiness' "].)

In short, Colaneri's showing in the Marsden hearings did not demonstrate either an irreconcilable conflict requiring the replacement of counsel, or that Reichert " 'was incompetent or would not provide adequate representation if he received defendant's cooperation.' " (Cole, supra, 33 Cal.4th at p. 1192.) Consequently, there was no abuse of discretion in the trial court's denial of Colaneri's Marsden requests.

Colaneri also contends that the trial court's denial of his Marsden motions constitutes federal constitutional error. As Colaneri recognizes, however, the analysis under federal law is essentially identical to that under state law. (See Cole, supra, 33 Cal.4th at p. 1193, fn. 5 [rejecting defendant's claims of federal and state constitutional error "because, as we have concluded, the court's denial of his [Marsden] motion was not erroneous" under state law]; People v. Smith, supra, 30 Cal.4th at pp. 606-607 [explaining that the review applied by the federal courts for a claim of constitutional error for failure to substitute appointed counsel "are consistent with California law under People v. Marsden . . . and its progeny"].) Thus, for the same reason that we conclude that Colaneri has failed to demonstrate error under state law, we also conclude that he has failed to demonstrate any constitutional violation — a conclusion that is consistent with the federal appellate case law Colaneri cites on this issue. (See, e.g., U.S. v. McKenna (9th Cir. 2003) 327 F.3d 830, 843, 844 [holding no error under federal Constitution where California trial court "held lengthy in camera hearings" on Marsden motions, "asked specific questions" related to the motions "and received detailed answers that revealed an absence of animosity," trial counsel did not "argue against [the] motion[] for substitution of counsel," and attorney-client disagreements pertained primarily to whether to file certain motions].)

II

The Trial Court Did Not Abuse Its Discretion in Denying Colaneri's Motion for a Mistrial

Colaneri contends that the trial court abused its discretion in declining to grant his request for a mistrial after Mastrangelo stated on direct examination that Colaneri was on parole. We evaluate this contention after setting forth the applicable procedural history.

A. Procedural History

Toward the conclusion of his direct examination testimony, Mastrangelo was asked about an incident that occurred "in the tent with you and Joe" on the night prior to the stabbing. Mastrangelo responded:

"Well, I was — he needed me. It was a little cold, and so I told him to come in. I threw him out the night before. I threw him out because he was supposed to go to his parole officer. He was abandoning. He never went. So I threw him out. Then he came back."

At the conclusion of the direct examination testimony, Colaneri requested that the trial court declare a mistrial based on Mastrangelo's reference to Colaneri's being on parole. The trial court denied the request.

The court ruled that Mastrangelo's answer would be stricken, and the court would instruct the jury to disregard the statement and to assume that Colaneri had no prior record. The court noted that "[i]n some ways that's going to be better" for the defense "than if nothing had been said at all because I guarantee you this jury already suspects, given where [Colaneri] was living and the circumstances of this case, that he has some prior record of some sort, so my instructing them" that they should assume he has no prior record "actually would be a benefit to [Colaneri]."

Prior to the defense cross-examination of Mastrangelo, the court instructed the jury as follows:

"Ladies and gentlemen, before we begin the cross-examination, there's one matter I need to bring to your attention. At some point I think the witness mentioned something about the defendant possibly being on parole or something like that.

"First of all, that answer, if it was said, is stricken. There is no competent evidence before you that the defendant is either on parole, probation, or that he has any prior record whatsoever, and since there is no evidence before you in that regard, you should assume he has no record."

At the conclusion of the evidence, the court added in its general instructions to the jury: "If I ordered testimony stricken from the record, you must disregard it and must not consider that testimony for any purpose."

B. The Trial Court Did Not Abuse Its Discretion

Colaneri contends that the trial court's admonition to the jury to disregard the offending portion of Mastrangelo's testimony "could not 'unring the bell,' " and consequently, the trial court's denial of the mistrial motion was an abuse of discretion. We disagree.

A defense motion for a mistrial should be granted " 'if the court is apprised of prejudice that it judges incurable by admonition or instruction.' " (People v. Stansbury (1993) 4 Cal.4th 1017, 1060, reversed on other grounds in Stansbury v. California (1994) 511 U.S. 318.) " 'Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.' " (People v. Stansbury, supra, 4 Cal.4th at p. 1060; see also People v. Harris (1994) 22 Cal.App.4th 1575, 1581 [same].)

Colaneri fails to demonstrate an abuse of discretion in the instant case, due to the nature of the improper testimony and the strength of the trial court's admonition. Mastrangelo's reference to Colaneri's parole status was an isolated and brief portion of his direct examination testimony, nonresponsive to the question asked, and unrelated to any issue before the jury. The reference was also vague, and did not include any information suggesting the type or seriousness of the offense for which Colaneri had been placed on parole. No further reference was made during trial to Colaneri's criminal past.

By contrast, the defense elicited testimony from Mastrangelo that Mastrangelo was on parole and had four prior criminal convictions — for weapons possession, drug transportation, violating a court order and vandalism.

Reacting promptly to the offending testimony, the trial court gave a firm admonition to the jury at the next natural breaking point, between direct and cross-examination. The admonition directed the jurors not only to disregard the testimony, but to assume that Colaneri had no criminal record. (See People v. Cox (2003) 30 Cal.4th 916, 961 [holding, in evaluating prejudicial impact of inappropriate testimony, that "[i]t must be presumed that the jurors acted in accordance with the instruction and disregarded the question and answer"].) In light of these factors, we conclude the trial court's determination that the admonition was sufficient to cure any prejudice caused by Mastrangelo's reference to Colaneri's parole status was not so unreasonable as to constitute an abuse of discretion. Consequently, reversal on this ground is unwarranted. (People v. Stansbury, supra, 4 Cal.4th at p. 1060 [trial court's denial of mistrial request after witness testified "she had heard defendant had been in prison" was not an abuse of discretion where the witness's assertion was "brief," constituted hearsay and "was never touched on again"]; People v. Jordan (2003) 108 Cal.App.4th 349, 364 [inadvertent provision of police report to jurors that informed them of defendant's parole status did not require reversal because the evidence of guilt was "strong," and the offense for which the defendant was on parole did not suggest a predisposition to commit the charged crime]; People v. Stinson (1963) 214 Cal.App.2d 476, 482, 483 [officer's inappropriate reference to defendant's parole status did not warrant reversal where "the trial court promptly instructed the jury to disregard the offending information," and there was not a reasonable probability that the reference affected the verdict].)

As we conclude that the trial court did not err, we reject Colaneri's contention that the trial court, by refusing the mistrial request, "fail[ed] to assure the jury's proper conduct and determination of questions of law," and thus violated Colaneri's right to due process under the Fourteenth Amendment to the federal Constitution.

III

The Trial Court's Finding that Colaneri Suffered the Prior Convictions Alleged by the Prosecution Is Supported by Substantial Evidence

Colaneri contends that the trial court's findings that he had suffered prior convictions as alleged by the prosecution, including two prior strike convictions, must be reversed because they were not based on substantial evidence. We evaluate this contention after setting forth the pertinent procedural history.

A. Procedural History

The prosecution alleged that Colaneri had suffered two prior strike convictions and three prison priors. After the jury found Colaneri guilty, Colaneri waived his right to a jury trial regarding the prior conviction allegations and a bench trial was held for the trial court to determine the truth of those allegations.

At the bench trial, the prosecution presented a forensic technician and expert in fingerprint comparisons, Andrea Duncan, who testified that the fingerprints of the defendant included in the certified records of the prior convictions matched the fingerprints on "the print card for the current booking." On cross-examination, Duncan acknowledged that she had not encountered Colaneri prior to her testimony and had not personally taken his fingerprints. At the conclusion of Duncan's testimony, the trial court admitted the booking documents as well as the certified records of the prior offenses into evidence.

During argument, the trial court stated that it was clear that all the fingerprints came from the same source, but asked the prosecutor, "how do we know these prints are Mr. Colaneri's prints?" The prosecutor argued that this fact was established by the booking number, which matched the booking number on the information in the instant case, and the picture of Colaneri included with the booking packet. The prosecutor also noted that the packet included a certification that all of the documentation in the booking packet (including the photograph) came from "the same record source."

After hearing argument from defense counsel, the court concluded, ". . . I am convinced beyond a reasonable doubt that these priors belong to him." The court noted, however, that the prosecution's presentation was "sloppy," "stinks" and "is not the way to put on a trial on the priors." The court stated that in future cases, the prosecution should present direct evidence that the fingerprints compared to those contained in the records of a prior conviction were obtained from the defendant.

B. Sufficient Evidence Supports the Trial Court's Findings

Colaneri contends that because "the prosecution did not provide any evidence to prove that the fingerprints on either the current booking chart or for the old records of conviction, belonged to" him, the trial court's findings must be reversed. We disagree.

While contending that the allegations were not proven, Colaneri does not dispute that he actually suffered the prior convictions at issue. In fact, Colaneri's counsel acknowledged the convictions in a pretrial hearing evaluating whether Colaneri's record would be admissible as impeachment were he to testify. In that hearing, counsel did not dispute that the convictions had been suffered by Colaneri, but argued only that they occurred too far in the past to qualify as proper impeachment.

In a trial of allegations that a defendant has suffered prior convictions, the prosecution bears the burden of proving the truth of the allegations " 'beyond a reasonable doubt.' " (People v. Jones (1995) 37 Cal.App.4th 1312, 1315; In re Yurko (1974) 10 Cal.3d 857, 862.) When the defendant challenges the sufficiency of the evidence on appeal, however, the question is much narrower. We determine only " ' ". . . whether a reasonable trier of fact could have found that the prosecution sustained its burden of proof beyond a reasonable doubt. In making this determination, [we] must consider the evidence in a light most favorable to the judgment and presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. The test is whether substantial evidence supports the [trial court's conclusion], not whether the evidence proves guilt beyond a reasonable doubt." ' " (Jones, at p. 1315.)

In the instant case, it was uncontested that the person who suffered each of the prior convictions alleged by the prosecution had identical fingerprints to those on the booking card for the instant case. The only disputed question was whether there was sufficient evidence to demonstrate that the fingerprints on the booking card belonged to Colaneri. In light of the photograph of Colaneri (to which the trial court could compare Colaneri's in-court appearance) and other identifying information in the booking packet (e.g., the case number on the fingerprint card which matched the case number on the information), the trial court could reasonably conclude, beyond a reasonable doubt, that the fingerprints on the booking card were obtained from Colaneri. Consequently, we reject Colaneri's challenge to the sufficiency of the evidence supporting the trial courts findings.

IV

The Trial Court Did Not Abuse Its Discretion in Declining to Strike Colaneri's Prior Strikes

Colaneri contends that the trial court abused its discretion by declining to strike one or both of his prior strikes.

A. Procedural History

Prior to sentencing, Colaneri's counsel filed a motion to dismiss Colaneri's prior strikes. In the motion and at sentencing, counsel cited Colaneri's difficult childhood, ongoing emotional problems, drug and alcohol abuse, and the asserted minor nature of his prior strikes in arguing for this exercise of the court's discretion. Counsel also emphasized that due to Colaneri's age (46), virtually any significant sentence would provide ample assurance that Colaneri would no longer be a danger to society upon release from prison.

The trial court denied the request, noting that it was having "a lot of difficulty" reaching a conclusion that Colaneri was "outside the spirit of the Three Strikes law." The court stated that "[t]he current case is clearly a serious felony" that could have resulted in death, and that Colaneri's record demonstrated that he was a "career criminal." Consequently, there was "simply . . . no basis to strike a strike," it was not even "a close call" and, "[i]n fact, I think if the court were to strike a strike in this case, the court of appeal may well find that it was an abuse of discretion."

B. The Trial Court Did Not Abuse Its Discretion

Colaneri reiterates on appeal the mitigating factors he cited in the trial court in support of his request to strike a strike. He argues that in light of these mitigating factors, the trial court's denial of his request constituted an abuse of discretion. We disagree.

A trial court may strike a finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony on its "own motion or upon the application of the prosecuting attorney . . . in furtherance of justice." (§ 1385, subd. (a); People v. Williams (1998) 17 Cal.4th 148, 158 (Williams), citing People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) In determining whether to do so, the court "must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, at p. 161.)

The trial court's "failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary." ' " (Id. at p. 376.) Second, " ' " '[a]n appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge,' " ' " and consequently, the trial court's " ' "decision will not be reversed merely because reasonable people might disagree." ' " (Id. at p. 377.) Taken together, these two precepts establish the overarching principle on review that "a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Ibid.)

The trial court did not abuse its discretion. As Colaneri himself recognizes, he "has a criminal record stretching back many years." Leading up to the instant offense, Colaneri had been convicted on 12 separate occasions of criminal offenses of generally elevating seriousness. Colaneri committed the instant offense while on parole for the most recent of these prior offenses. The probation officer's report further notes that Colaneri has consistently performed poorly on parole and probation, failed to appear in court when directed to do so, and was "a chronic absconder" with "continual contact with police officers."

The probation officer's report states that Colaneri was convicted of driving under the influence in 1979; leaving the scene of an accident and eluding a police officer in 1980; assault on a police officer in 1980; possession of a concealed weapon in 1981; conspiracy to violate the Uniform Controlled Substances Act (Health & Saf. Code, §§ 11000 et seq.) in 1982; assault in 1988; breaking and entering in 1989; attempted larceny in 1989; child stealing in 1990; robbery in 1992 (for which he was sentenced to three years in prison); robbery in 1993 (for which he was sentenced to five years in prison); and possession of a controlled substance in 1997 (for which he was sentenced to seven years in prison).

Thus, the sentencing record adequately supported the trial court's conclusion that Colaneri was a "career criminal" — precisely the type of offender that the Three Strikes Law is intended to either deter or, if deterrence is not achieved, incapacitate. (See People v. Strong (2001) 87 Cal.App.4th 328, 338 ["extraordinary must the circumstance be by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack"].) Indeed, "[b]ecause the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit' " of the Three Strikes law, "the circumstances where" an appellate court would find an abuse of discretion when the trial court declined to strike a career criminal's prior strikes "must be even more extraordinary." (Carmony, supra, 33 Cal.4th at p. 378.) Given the seriousness of the instant felony and Colaneri's extensive criminal record, we cannot conclude that "extraordinary" circumstances are present here which would indicate that the trial court abused its discretion in concluding that Colaneri did not fall "outside the [Three Strikes] scheme's spirit." (Williams, supra, 17 Cal.4th at p. 161; People v. Philpot (2004) 122 Cal.App.4th 893, 906-907 [no abuse of discretion in declining to strike a strike where the "defendant consistently committed criminal offenses for the past 20 years," and "[h]is conduct as a whole was a strong indication of unwillingness or inability to comply with the law"].) Consequently, we reject Colaneri's contention that the trial court abused its discretion in declining to strike a strike.

Colaneri also highlights the trial court's statement that it believed the Court of Appeal " 'may' " reverse its ruling were it to strike a prior strike. Colaneri contends that based on this statement, reversal is required because "the sentencing judge did not understand the scope of his discretion under current law." (See People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8 ["Defendants are entitled to sentencing decisions made in the exercise of the 'informed discretion' of the sentencing court"].) We disagree.

The sentencing record indicates that the trial court was well aware of its statutory discretion to strike one or both of Colaneri's prior strikes. (Cf. People v. Mosley (1997) 53 Cal.App.4th 489, 496 [recognizing that "[t]he general rule . . . that a trial court is presumed to have been aware of and followed the applicable law" applies with equal force "to sentencing issues"].) The court's statement that were it to exercise its discretion in Colaneri's favor it risked reversal on appeal merely reflected the court's view that the question of striking a strike was not "a close call" and thus would be vulnerable to appellate challenge. (See, e.g., Williams, supra, 17 Cal.4th at p. 165 [affirming appellate court's reversal of trial court's decision to strike a prior strike].) This is not grounds for reversal.

DISPOSITION

Affirmed.

WE CONCUR: McCONNELL, P. J. O'ROURKE, J.


Summaries of

People v. Colaneri

California Court of Appeals, Fourth District, First Division
Mar 18, 2008
No. D049487 (Cal. Ct. App. Mar. 18, 2008)
Case details for

People v. Colaneri

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOSEPH COLANERI, Defendant and…

Court:California Court of Appeals, Fourth District, First Division

Date published: Mar 18, 2008

Citations

No. D049487 (Cal. Ct. App. Mar. 18, 2008)