Opinion
F072103
01-25-2017
THE PEOPLE, Plaintiff and Respondent, v. REGINALD COOKE, Defendant and Appellant.
Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Jessica C. Leal, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. DF011649A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Robert S. Tafoya, Judge. Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Jessica C. Leal, Deputy Attorneys General, for Plaintiff and Respondent.
Before Kane, Acting P.J., Detjen, J. and Franson, J.
-ooOoo-
A jury convicted Reginald Cooke (defendant) of making a criminal threat (Pen. Code, § 422; count 1), found he had suffered a prior conviction for a serious felony (§ 667, subd. (a)) that was also a strike (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(e)), and further found he had served five prior prison terms (§ 667.5, subd. (b)). Defendant was sentenced to a total unstayed term of 12 years in prison and ordered to pay various fees, fines, and assessments.
All statutory references are to the Penal Code.
A second count of making a criminal threat was dismissed at trial at the request of the prosecutor.
On appeal, we hold the trial court did not err by clarifying the jury's finding as to one of the prior prison term allegations. Defendant is entitled, however, to have the judgment modified so that two of the prior prison term enhancements are stricken, rather than stayed. He is also entitled to correction of a clerical error in the amended abstract of judgment.
FACTS
On October 30, 2013, defendant, an inmate housed in the administrative segregation unit at North Kern State Prison, threatened to spear and "gas" (throw liquid or feces on) one of the correctional officers. Defendant also called the officer derogatory names, made sexual comments to him, and stated he had a cell phone, knew where the officer lived, and was going to kill the officer and the officer's family. Because of the reference to the cell phone, the officer believed defendant might be able to talk to someone outside prison. Defendant's statements caused the officer to fear for his safety and that of his family.
Defendant had made similar threats against another correctional officer and that officer's wife some three years earlier at a different prison.
DISCUSSION
I
THE TRIAL COURT PROPERLY HAD THE JURY CLARIFY ITS FINDING AS TO ONE OF THE
PRIOR PRISON TERM ALLEGATIONS.
A. Background
With respect to one of the section 667.5, subdivision (b) enhancements, the information alleged defendant was convicted of corporal injury to a child on or about December 3, 2001, in Los Angeles County Superior Court case No. GA047298-01. An abstract of judgment for that case, showing a conviction on that date, was admitted into evidence.
During deliberations, the jury sent out a note that read: "We, the jury, request your assistance as follows: Wrong Dates #4 Dec 3-2001 form Dec 3 2010[.]" The court determined there was a typographical error on the verdict form. With the agreement of both parties, the court responded to the jury in writing: "You are correct. The verdict form is inaccurate. The prior prison commit[]ment/conviction should read on December 3, 2001 the defendant was convicted of a violation of PC273(D)(A), corporal injury to child in Los Angeles County." For unknown reasons, a corrected verdict form was not given to the jury at this time.
Jurors returned a verdict that read, in pertinent part: "We, the Jury, . . . find it to be not true that the defendant . . . was on or about December 3, 2010, in the Superior Court of the State of California, County of Los Angeles, Case Number GA047298-01, convicted of a felony, . . . within the meaning of Penal Code Section 667.5(b) as alleged in the Information." In addition to underlining the "10" in "2010," the foreperson handwrote, underneath his signature: "Corrected Date Dec 3, 2001[.]"
In open court, the foreperson confirmed that rather than actually changing the language of the verdict, he indicated the correct date and attached the note the trial court sent in response to the jury's earlier question. This ensued:
"[THE COURT:] So, they found . . . this particular allegation to be not true.
"[PROSECUTOR]: And that was for the date of December 3rd, 2001?
"THE COURT: December 3, 2010.
"[PROSECUTOR]: Right, but that's what we had discussed should be changed to 2001. [¶] . . . [¶]
"THE COURT: . . . I want to get a clarification from the jury.
"I received a letter from the jury and it read:
"We the jury request your assistance as follows: It says, wrong date number 4, December 3, 2001, form, December 3, 2010. . . . And I'm assuming that you were indicating that the verdict form was incorrect.
"JUROR 10 [foreperson]: Correct, your Honor.
"THE COURT: And in response I put:
"You are correct, the verdict form is inaccurate. The prior prison commitment conviction should read on December 3, 2001 the defendant was convicted . . . in Los Angeles County. So I sent that response back. But your ruling nevertheless is that you found it not to be true.
"JUROR 10: As submitted it was not true, correct.
"[PROSECUTOR]: As submitted based on the date of 2010?
"JUROR 10: Correct.
"THE COURT: Right.
"[PROSECUTOR]: But, your Honor, we're confused here, because . . . our note back, the intention was to tell them that . . . the date should be . . . 2001.
"THE COURT: Which is what I did.
"[PROSECUTOR]: Right. But they're saying it's not true because of the 2010 date. [¶] . . . [¶]
"JUROR [10]: Right, yes, right.
"[PROSECUTOR]: They're not saying it's not true to the 2001 date. We need to have them determine whether or not —
"[DEFENSE COUNSEL]: Your Honor, the verdict is the verdict. They rendered a verdict.
"THE COURT: It's somewhat inconsistent, because they're attaching both the note and the form. And there is some confusion — [¶] . . . [¶] . . . — and so that has to be clarified on the record. [¶] . . . [¶] . . . So . . . I need to send the jury back as to this particular . . . verdict form.
"[PROSECUTOR]: Your Honor, what I request to do then is, to reprint a verdict form with the proper date of 2001 and then allow them to determine whether or not it is true or not true as to the correct date. Because my understanding given what's been discussed is that they decided it was not true because the verdict form said 2010, which is proper because there was no conviction for 2010."
The court sent the jurors back into the jury room, directed the prosecutor to provide an amended finding on the prior conviction at issue, and stated it was "going to send them back as to that one only." Defense counsel opposed the proposed course of action, arguing the jury had rendered a not true finding. The prosecutor argued the foreperson made it clear the jury voted not true to a conviction in 2010, which was neither alleged in the information nor supported by the evidence. Accordingly, the jury needed to be presented with the opportunity to determine whether it was true or not true that there was the conviction alleged from 2001. This ensued:
"THE COURT: And I'm confused and I have a duty to make a clear record. So, let's bring in the jury. And out of fairness to your client I'll ask them, folks, do you want this to stand or do you want to go back and deliberate? If they . . . don't want to deliberate, end of story.
"[PROSECUTOR]: Well, your Honor, I don't think that that's proper because up to this point they haven't deliberated on a prior that is alleged. . . . [¶] . . . [¶] . . . Because at this point it was my understanding that they haven't made a finding —
"THE COURT: They made — on the wrong date. It doesn't apply. [¶] . . . [¶]
"[PROSECUTOR]: Right, which is not what the prior alleges so —
"[DEFENSE COUNSEL]: But they did made [sic] a finding.
"THE COURT: Right. On something that's not relevant — [¶] . . . [¶]
"[PROSECUTOR]: On something that's not included in the case. [¶] . . . [¶]
"[DEFENSE COUNSEL]: . . . You know what, they said it's not true. [¶] . . . [¶]
"THE COURT: . . . The jury has now entered the courtroom.
"And I'm addressing my question to the foreperson. Juror number 10, I now have an amended findings [sic] on prior conviction for the December 3rd, 2001 incident. So this is amended. Is it your desire to go back and rule on this?
"JUROR 10: Yes, your Honor.
"THE COURT: What I'm going to do then is, I'm going to deliver this to my bailiff and you can all go back into the jury deliberation room and this will remain part of the record.
"Okay. But I just want to make it clear, your denying the truth of this allegation is based on the fact that it's the wrong date?
"JUROR 10: Correct, your Honor.
"THE COURT: Okay. Thank you. Go on back."
The jury subsequently returned a true finding on the prior prison term allegation at issue. They were polled as to all the prior conviction allegations, and each juror stated the findings accurately reflected his or her verdict. After the jury was discharged, defense counsel stated he was making a motion for mistrial or new trial based on what occurred. The trial court directed him to file a written motion.
Defendant subsequently filed a motion for a new trial, in which he claimed that by signaling its dislike for the not true finding and sending the jury back out to deliberate, the trial court was biased toward defendant. The trial court denied the motion; however, in order to avoid any prejudice to defendant, the court ruled it would impose a one-year term for the enhancement based on Los Angeles County Superior Court case No. GA047298-01, but suspend execution of that portion of the sentence. B. Analysis
"When there is a verdict of conviction, in which it appears to the Court that the jury have mistaken the law, the Court may explain the reason for that opinion and direct the jury to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it must be entered; but when there is a verdict of acquittal, the Court cannot require the jury to reconsider it." (§ 1161, italics added.)
Defendant contends the trial court violated this statute and due process by inviting the jury to reconsider its verdict of acquittal on the prior prison term enhancement allegation involving Los Angeles County Superior Court case No. GA047298-01. Relying largely on People v. Bonillas (1989) 48 Cal.3d 757, 770-771 (Bonillas), the Attorney General counters that the initial verdict was incomplete or otherwise irregular; hence, since jurors had not been discharged, the trial court had jurisdiction to reconvene the jury to fix or clarify the verdict. (See § 1164.)
Not true findings on enhancement allegations and acquittal verdicts on substantive offenses are equivalent for purposes of this case. (See People v. Guerra (2009) 176 Cal.App.4th 933, 941, fn. 2.)
"Generally, a verdict is complete under section 1164 if it has been read and received by the clerk, acknowledged by the jury, and recorded. [Citation.] However, a verdict is not complete if a juror dissents during polling [citation], it does not resolve a count charged [citation], or it does not make a required finding [citation]." (People v. Bento (1998) 65 Cal.App.4th 179, 188.)
Bonillas concerned a situation in which the instructions required the jury to fix the degree of murder if it found the defendant guilty of that offense, but the verdict form did not provide the means by which to do so. Under the circumstances, the California Supreme Court found the verdict was incomplete under the law and the instructions, and the trial court properly reconvened the jury (which had been temporarily excused but not discharged pending the penalty phase of trial) to fix the degree of the murder. (Bonillas, supra, 48 Cal.3d at pp. 768-770; see People v. Scott (2001) 91 Cal.App.4th 1197, 1207-1209.)
A somewhat different situation is presented here. The verdict form contained a typographical error with respect to the date of the alleged prior conviction. It can be argued this rendered the verdict incomplete, because it did not resolve an allegation. (See People v. Bento, supra, 65 Cal.App.4th at p. 188.) On the other hand, while a defendant who pleads not guilty cannot, generally speaking, be convicted of an offense with which he or she has not been charged (People v. Parks (2004) 118 Cal.App.4th 1, 5), a verdict must be read in light of the charging instrument, the plea entered by the defendant, and the instructions of the court (People v. Paul (1998) 18 Cal.4th 698, 706; People v. Jones (1997) 58 Cal.App.4th 693, 710; People v. Trotter (1992) 7 Cal.App.4th 363, 369-370). Thus, had the jury foreperson signed the verdict finding the allegation true, there is little doubt the verdict would have been read as referring to defendant's 2001 conviction. Had the jury foreperson simply signed the verdict form finding the allegation at issue not true and no juror dissented from the verdict (see § 1163; People v. Bento, supra, 65 Cal.App.4th at pp. 187-188, 189-191), section 1161 likely would have precluded the trial court from any action other than accepting the not true finding.
This entire issue could have been avoided had the verdict form been carefully proofread before it was given to jurors or, at the very least, had a corrected verdict form been provided when jurors called the error to the attention of the court and counsel.
Here, however, the foreperson did neither. Instead, he noted the correct prior conviction date on the verdict form and attached the jury's note and trial court's response. The court confirmed with the foreperson that the not true finding was based on the incorrect date.
The court did not poll the jury. Absent a request by either party, it was not required to do so. (§ 1163.) Moreover, we discern no prejudice to defendant from its failure to do so. (See People v. Masajo (1996) 41 Cal.App.4th 1335, 1340.)
"Reversal of a conviction for violation of section 1161 requires a showing of actual prejudice. 'Generally speaking, it is the duty of the court to see that verdicts are returned in proper form, and so far as form be concerned to aid the jury in returning correct verdicts. [Citation.] Of course if what the court did amounted in fact to telling the jury to reconsider a not guilty verdict it had returned, such direction would be improper [under section 1161], but even if such were the case it would have to appear further before prejudice could be claimed that on reconsideration a different verdict was returned.' [Citations.]" (People v. Caird (1998) 63 Cal.App.4th 578, 587; see § 1404.)
"[T]he real problem is to determine the jury's actual intent in returning the verdict form[] it did." (People v. Caird, supra, 63 Cal.App.4th at p. 589.) Clearly, jurors here did not intend to return a not true finding on the actual 2001 prior prison term allegation. Under the circumstances, the trial court's actions did not amount to telling the jury to reconsider a not true finding it had returned. (People v. Crawford (1967) 253 Cal.App.2d 524, 538-539 & fn. 6 [trial court properly clarified jury's finding defendant was not armed with deadly weapon when jury clearly intended to find defendant guilty of first degree robbery]; cf. People v. Espiritu (2011) 199 Cal.App.4th 718, 722-723, 727 [jury's not true finding on enhancement allegation was inconsistent with guilty verdict and other special allegation; trial court violated § 1161 by having jury redeliberate only on not true finding rather than asking it to clarify its verdict to show its true intent]; People v. Guerra, supra, 176 Cal.App.4th at pp. 935, 942-944 [jury convicted defendant of sex crimes against two children but found not true enhancement allegations that multiple victims were involved; trial court impermissibly invited jury to reconsider not true findings and allowed jurors to deliberate anew]; Bigelow v. Superior Court (1989) 208 Cal.App.3d 1127, 1129, 1133, 1135 [jury acquitted defendant of murder, but found true special circumstance allegations; by denying defendant's motion to receive and record verdict and sending jury out for further deliberations, trial court improperly directed jury to reconsider verdict of acquittal].)
Were we to find otherwise, we would question whether defendant has shown actual prejudice. Although jurors returned a different verdict, the enhancement must be stricken, as we explain, post.
"The touchstone of a jury verdict of acquittal is the jury's manifestation of a definite and final intent to acquit of the offense. [Citations.] [¶] . . . Once it is clear that the jury's intent is to acquit, the form of the verdict is not important; it is the intention to acquit that triggers the mandatory duty to receive and record the verdict and acquit the prisoner. 'The record ends with the finding of the jury not guilty.' [Citation.]" (Bigelow v. Superior Court, supra, 208 Cal.App.3d at p. 1134.)
In the present case, the jury's intent was not to acquit of the enhancement as alleged, but only as submitted with the incorrect date. Under these peculiar circumstances, we conclude the trial court did not violate section 1161, or defendant's constitutional rights, by having jurors deliberate on the actual enhancement and return a verdict in which that enhancement was correctly set out. Accordingly, defendant is not entitled to reversal of the jury's finding.
People v. Carbajal (2013) 56 Cal.4th 521 (Carbajal) does not compel a different result. In that case, the defendant was charged with sexually molesting two victims. A jury convicted him of some counts involving one victim, deadlocked on all counts involving the other victim, and returned a true finding on an allegation that the defendant committed offenses against multiple victims. Believing that finding was made in error, the trial court instructed the jury on the law and ordered further deliberations. When the jury returned, the trial court — believing jurors again had erred, this time by making a not true finding — did not receive the verdict, but gave a lengthy comment with additional instructions and ordered still further deliberations. When the jury returned a third time, it pronounced itself deadlocked on the multiple victims allegation. (Id. at p. 525.)
At issue before the California Supreme Court was whether the defendant could be retried on the multiple victims allegation. (Carbajal, supra, 56 Cal.4th at p. 525.) The court determined retrial was not barred by double jeopardy, since the original jury had no authority even to consider that allegation once it deadlocked on the counts involving the second victim. (Id. at p. 533.) The court explained, however, that "[t]he Legislature has set forth in prescriptive detail the procedures that trial courts must follow in receiving a jury verdict" (id. at p. 530) and that these provisions — which include section 1161 — "are intended to reduce the likelihood of a trial court unduly, even if inadvertently, influencing the jury to reach a particular outcome. [Citations.]" (Carbajal, supra, at p. 531.) The court concluded that "except as provided in section 1161, a trial court may not reject a jury's verdict and send the jury back for further deliberations based on the court's belief that the jury made a mistake." (Carbajal, supra, at p. 533.)
The state high court recognized there was case law permitting trial courts to clarify ambiguous verdicts. (Carbajal, supra, 56 Cal.4th at p. 532.) It explained that doing so in the situations presented in those cases "did not contravene the procedural requirements of the statutory scheme because it was not possible to understand whether the jury had actually convicted or acquitted the defendant of the specified counts. Clarification was necessary to determine whether there was an intelligible verdict at all." (Ibid.) In the situation before it, however, the trial court did not attempt to clarify an unintelligible verdict following the jury's second set of deliberations: "A verdict of true or not true on the special allegation would have been inconsistent with the jury's findings on the substantive counts, but it would not have been unintelligible in the way that a finding of guilt and acquittal on the same count is. [¶] Mere inconsistency does not provide a valid reason for courts to reject a jury verdict." (Ibid., italics omitted.)
In the present case, the jury's finding on the enhancement allegation was not merely inconsistent. Rather, in light of the notation on the verdict form of the corrected date and the jury's attachment of its communication with the court on that point, it was ambiguous. The trial court did not send the jury back for further deliberations based on the court's belief the jury had incorrectly decided the allegation as submitted on the verdict form, but rather in order to clarify their verdict with respect to the prior conviction as actually alleged.
II
THE TRIAL COURT WAS REQUIRED TO STRIKE , RATHER THAN STAY, THE PRIOR PRISON
TERM ENHANCEMENTS ON WHICH IT DECIDED NOT TO PUNISH DEFENDANT.
The trial court sentenced defendant to a total term of 12 years in prison, calculated as four years on count 1 plus five years pursuant to section 667, subdivision (a) plus three years for three enhancements pursuant to section 667.5, subdivision (b). As we previously noted, in order to avoid prejudice to defendant resulting from the confusion surrounding the 2001 prior prison term allegation, the trial court imposed a one-year term therefor, but suspended execution thereof. It did the same with respect to the 2003 conviction in Kings County Superior Court case No. 03CM7336. Defendant now contends — and the Attorney General appropriately concedes — the trial court was required to strike, rather than stay, those two enhancements.
"[A] section 667.5, subdivision (b) prior prison term enhancement may be stricken pursuant to section 1385, subdivision (a). [Citations.]" (People v. Garcia (2008) 167 Cal.App.4th 1550, 1561.) Where, as here, the trial court is doing so as a discretionary matter, it must strike, rather than stay, the enhancement. (People v. Lopez (2004) 119 Cal.App.4th 355, 364; People v. Haykel (2002) 96 Cal.App.4th 146, 151; People v. Jones (1992) 8 Cal.App.4th 756, 758.) "The failure to impose or strike an enhancement is a legally unauthorized sentence subject to correction for the first time on appeal. [Citations.]" (People v. Bradley (1998) 64 Cal.App.4th 386, 391; see People v. Scott (1994) 9 Cal.4th 331, 354.) We will modify the judgment accordingly.
III
THE AMENDED ABSTRACT OF JUDGMENT MUST BE CORRECTED TO REFLECT THE
CORRECT DATE OF THE OFFENSE.
The amended abstract of judgment, filed September 29, 2016, shows defendant's current offense was committed in 2010. In reality, the information alleged, and the evidence at trial showed, the crime occurred in 2013. Defendant contends, and the Attorney General agrees, this clerical error must be corrected. (See, e.g., People v. Mitchell (2001) 26 Cal.4th 181, 185; In re Candelario (1970) 3 Cal.3d 702, 705.)
The original abstract of judgment, filed July 20, 2015, does likewise. --------
DISPOSITION
The Penal Code section 667.5, subdivision (b) enhancements arising out of Los Angeles County Superior Court case No. GA047298-01 (Dec. 3, 2001) and Kings County Superior Court case No. 03CM7336 (Oct. 29, 2003) are stricken. As so modified, the judgment is affirmed. The trial court is directed to cause to be prepared a second amended abstract of judgment reflecting said modification and listing 2013 as the year in which the present offense was committed, and to forward a certified copy of same to the appropriate authorities.