Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. NA069007., Charles D. Sheldon, Judge.
Joanna Rehm, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and J. Michael Lehmann, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P.J.
Paul Dickerson appeals from the judgment entered following a jury trial in which he was convicted of petty theft with a prior (Pen. Code, § 666). After striking one of the strike convictions, appellant was sentenced to eight years in prison, consisting of the upper term of three years, doubled by reason of the remaining strike, and two 1-year enhancements pursuant to Penal Code section 667.5.
Appellant admitted that on September 1, 2004 in case number BA270194, he had been convicted of burglary (Pen. Code, § 459).
FACTUAL AND PROCEDURAL SUMMARY
On March 7, 2006 at the arraignment, appellant’s Marsden motion was heard and denied.
People v. Marsden (1970) 2 Cal.3d 118.
On the first day of trial, appellant stated “[his] people called for an attorney, and he’s supposed to be here today.” He then stated he wished to exercise his Faretta rights. When appellant stated he was not ready to start trial, the court denied the Faretta motion finding it was made for purposes of delay. The court observed the discussion about another attorney was probably also for purposes of delay and that trial would go forward. The court noted that jurors were on their way from the jury room and that this was “the last day.” Thereafter, appellant made an oral motion pursuant to Code of Civil Procedure section 170.6 peremptorily challenging the judge. The motion was denied as untimely.
Faretta v. California (1975) 422 U.S. 806.
At the time of trial, the court advised the jury that the charge in the case was that on or about January 30, 2006, appellant committed a “petty theft with a prior or priors. [¶] So we had the defendant recently decide to admit the prior or priors so that there is nothing before you for your decision because the prior has been admitted. So all [you have] to do is decide on the evidence whether the defendant committed a petty theft because the other is taken care of. And that just cuts down the issues for you to decide. [¶] So with that in mind, I’m just telling you that’s what you’re going to be hearing evidence on.”
During the People’s opening statement, the prosecutor repeated the charge and stated as “the judge also told you that he has already admitted the prior conviction. So all you have to decide is whether a petty theft was committed on January 30, 2006.”
The evidence at trial established that on January 30, 2006, Andre Bentley was dressed in plain clothes working as a loss prevention investigator for a Home Depot Store in Gardena. On that date, he saw appellant select tools, an Allen wrench and a ratchet, from the tool corral and tuck them under his undershirt. Appellant was wearing jeans, a leather coat, a flannel shirt and an undershirt. Mr. Bentley thought he saw appellant looking at him so he “acted like [he] was a customer” and walked up to appellant and asked appellant about an Allen wrench. After about 30 or 40 seconds, appellant walked to the paint department. He selected four spray hoods and placed them inside his shirt. He then went to the electrical department and selected some electrical plates and placed them under his shirt. Thereafter, appellant walked to the front of the store, passed the main registers and exited the store. Outside of the store, Mr. Bentley approached appellant and identified himself as loss prevention for Home Depot. When Mr. Bentley told appellant he needed to talk to him about items for which he had not paid, appellant said he did not have anything and kept walking. With the assistance of a Home Depot associate, Juan Rico, Mr. Bentley “took [appellant] down to the ground.” While appellant and Mr. Bentley were scuffling on the ground, a man came up and asked what was going on. Appellant said something to the effect of, “‘Can you help me out? Help me. I need to pay for this stuff’ or ‘Help me out.’” Mr. Bentley told the man to back away because appellant was shoplifting. While Mr. Bentley escorted appellant to the loss prevention office, appellant said, “‘Let me pay for it. I’ll pay for it.’” At the office, Mr. Bentley grabbed the merchandise that was under appellant’s shirt. The merchandise was valued at $33.75. Police were summoned. While waiting for the police for approximately 20 minutes, appellant did not say anything further to Mr. Bentley.
While there were surveillance cameras for certain positions at the tool corral and at the exits, Mr. Bentley did not bring any surveillance tape to court and had not viewed any because he had seen the theft and did not feel tapes were necessary. Upon further questioning by the defense, Mr. Bentley acknowledged that at the preliminary hearing he testified there were no tapes of appellant that day. Mr. Bentley had not looked for any video footage of appellant. From the time he saw appellant select the wrench and put it underneath his shirt, to the time appellant exited the store, Mr. Bentley never lost sight of him. Mr. Bentley never saw appellant walk up to a register to pay for any items.
Juan Rico first saw appellant as he was walking by the registers out of the store. Mr. Rico saw appellant look around and walk out. Mr. Bentley was right behind appellant and motioned for assistance. Mr. Rico recalled that during the struggle with appellant, a gentleman with a cane approached and told them to let appellant go. Mr. Rico and Mr. Bentley walked appellant to the security office. Inside the office, appellant offered to pay for the merchandise; he stated, however, he had no money. Mr. Rico witnessed Mr. Bentley removing the merchandise from appellant’s armpit and waist area. Appellant had the merchandise tucked in under a couple of shirts and a jacket.
In defense, Albert James Brown testified that on January 30, 2006, he went to the Home Depot with appellant to return some previously purchased items. Appellant did not have identification which was needed to make the return and Mr. Brown was going to use his own identification. Upon return of merchandise without a receipt, the store gives a credit card. As Mr. Brown was walking back to the car, he did not see appellant so he walked back to the store. He then saw two or three men grab appellant and throw him to the ground. Mr. Brown asked the men why they were doing that. Mr. Brown told the men appellant was waiting for him “‘to bring the card, so he could pay for the stuff.” Mr. Brown and appellant had known each other for approximately 25 or 30 years and were good friends. Mr. Brown “had the card to buy the items” and had the receipt in his hand. Appellant “kept telling them, but they didn’t pay [any] attention.”
At sentencing, the trial court struck one of appellant’s prior convictions alleged as a strike, doubled the upper term of three years and imposed two, 1-year terms for two prior prison term enhancements for a total of eight years. The court selected the upper term based on appellant’s “lengthy serious prior record.”
The court struck the prior in case number A625047 from March 1983.
After review of the record, appellant’s court-appointed counsel filed an opening brief requesting this court to independently review the record pursuant to the holding of People v. Wende (1979) 25 Cal.3d 436, 441.
On April 3, 2007, we advised appellant that he had 30 days within which to personally submit any contentions or issues which he wished us to consider.
On April 26, 2007, he filed a supplemental brief claiming the court was prejudiced against him at the arraignment. Additionally, he challenged the ruling on his Marsden motion, claiming the court appeared to be prejudiced against him and that the court did not clear the courtroom. Additionally, appellant claimed he was threatened by the court on his first day of trial with “priors being allowed even before a verdict on the charge was in.” He asserted, in essence, that he was prejudiced by the court when it advised the jury “we had the defendant recently decide to admit the prior or priors . . . .” Appellant additionally asserted his sentence violated Apprendi v. New Jersey and Blakely v. Washington.
Apprendi v. New Jersey (2000) 530 U.S. 466; Blakely v. Washington (2004) 542 U.S. 296.
On July 17, 2007, this court requested the parties to address the question “whether the trial court erred by informing the jury of appellant’s prior conviction after he had admitted the conviction, and whether the error was prejudicial. . . .” Additionally, we asked the parties “to address the question of what evidence was received to support the trial court’s finding that in case number A625047 appellant suffered a prior conviction of a serious felony within the meaning of the Three Strikes law . . . and whether the finding is supported by substantial evidence.”
On July 27, 2007, appellate counsel submitted a response that the trial court prejudicially erred by informing the jury of appellant’s prior conviction. Additionally, appellate counsel advised this court that Exhibit 1, which contained proof of the prior conviction in case number A625047, as reproduced in the Clerk’s Transcript, was missing two pages. Examination of Exhibit 1, as maintained by the superior court clerk, reveals an abstract of judgment for case A625047, showing appellant was convicted of robbery in violation of Penal Code section 211 on February 11, 1983. Counsel included a copy of Exhibit 1 obtained from the superior court clerk with her letter.
On August 1, 2007, appellant filed his own response arguing the trial court committed prejudicial error by informing the jury of his prior conviction. Additionally, he claimed the finding of a prior conviction in case number A625047 was not supported by substantial evidence.
On August 6, 2007, respondent filed its brief, conceding it was state law error for the trial court to inform the jury of appellant’s prior after he had admitted the prior but arguing the error was harmless. Additionally, based on a review of the entire Exhibit 1, attached to appellant’s supplement brief, respondent argued the finding of appellant’s prior conviction in case number A625047 was supported by sufficient evidence.
We have examined the entire record and are satisfied that no arguable issues exist. While the trial court erred in advising the jury of appellant’s prior conviction (see People v. Bouzas (1991) 53 Cal.3d 467, 480), based on the overwhelming evidence of appellant’s guilt, it is not reasonably probable the jury would have come to a different verdict had it not been informed of appellant’s prior conviction. Additionally, based on a review of Exhibit 1, the complete 12-page prison packet that was received into evidence, sufficient evidence supports the trial court’s finding that in case number A625047, appellant suffered a prior conviction of a serious or violent felony within the meaning of the Three Strikes law.
Additionally, we have reviewed the proceedings of March 7, 2006, and find, contrary to appellant’s claim, the trial court did not abuse its discretion in denying appellant’s Marsden motion. Additionally, the transcript of the proceedings reflects that the deputy district attorney left the courtroom prior to the hearing on the motion and that the trial court sealed the transcript of the proceedings. Further, a review of the proceedings reveals no indication that the court was prejudiced against appellant.
Regarding appellant’s claim of sentencing error, the trial court sentenced appellant to the upper term based on his lengthy criminal record. The right to a jury trial does not apply to the fact of a prior conviction. (See People v. Black (2007) 41 Cal.4th 799, 818.)
Appellant has, by virtue of counsel’s compliance with the Wende procedure and our review of the record, received adequate and effective appellate review of the judgment entered against him in this case. (Smith v. Robbins (2000) 528 U.S. 259, 278; People v. Kelly (2006) 40 Cal.4th 106, 112.)
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.
In a bifurcated proceeding, appellant waived jury trial on his prior convictions alleged pursuant to the Three Strikes law (Pen. Code, §§ 1170.12, subds. (a) - (d) and 667, subds. (b) - (i)) and alleged pursuant to Penal Code section 667.5, subdivision (b). The trial court received two packets, pursuant to Penal Code section 969, subdivision (b), and the trial court found appellant had previously been convicted of two serious or violent felonies within the meaning of the Three Strikes law and five prior felonies within the meaning of Penal Code section 667.5, subdivision (b).