Opinion
NOT TO BE PUBLISHED
Superior Court County of Santa Barbara No. 1174171, Timothy J. Staffel, Judge
Wallin & Klarich and Robert C. Kasenow, II, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Robert F. Katz, Supervising Deputy Attorney General, Robert C. Schneider, Deputy Attorney General, for Plaintiff and Respondent.
YEGAN, J.
Sergio Chaidez Espinoza appeals from the judgment entered after a jury convicted him of first degree residential robbery (Pen. Code, § 211), ex-felon in possession of a firearm (§ 12021, subd. (a)(1)), evading an officer (Veh. Code, § 2800.2, subd. (a)), and transportation of a controlled substance (Health & Saf. Code, § 11379, subd (a)). On the robbery count, the jury returned true findings on three firearm use enhancements. (§§ 12022.53, subd. (b); 12022.5, subd. (a)(1); 1203.06, subd. (a)(1).)
Unless otherwise stated, all statutory references are to the Penal Code.
The trial found that appellant had suffered a prior prison term (§ 667.5, subd. (b)) and sentenced appellant to 18 years state prison. The prison sentence includes upper term sentences on counts 1 and 2 for robbery and ex-felon in possession of a firearm. We affirm.
Facts and Procedural History
At 3:30 a.m. on November 27, 2004, appellant forced himself into Nicole L.'s motel room. Nicole, age 16, was attending a car show in Santa Maria and saw appellant earlier that evening. She thought "he was kind of cute."
Appellant pushed a steel barrel into Nicole's stomach and entered the room wearing a black beanie and a trench coat. The beanie had eye holes cut out so it could be pulled down like a ski mask. Appellant ordered Nicole to "give me what you got." Nicole gave him $20.
Appellant was stopped in Guadalupe later that day for a traffic violation. Appellant sped off, leading the police on a car chase that was videotaped. Appellant ran seven stop signs, drove on the wrong side of the road, and sped through residential areas. After he blew out a tire and hit a fence, appellant jumped from the car while it was still moving. Appellant tried to run and was stopped with a taser.
The officers found a beanie near the driver's door, a hypodermic syringe filed with methamphetamine in appellant's pocket, and a trench coat in the car. Appellant's passenger, Arturo Renteria, had two baggies of methamphetamine weighing 6.5 grams. A digital scale was on the front car seat.
Nicole identified appellant at a field show-up and at a jail line up. She also identified the beanie and the trench coat. During booking, appellant blurted out that he did not commit a robbery.
A Guadalupe resident found a loaded Ruger Mark II .22 caliber target pistol the next day. The pistol was lying in the gutter on the same street used by appellant to flee from police.
Appellant claimed that he was at the Chumash Indian Casino when Nicole was robbed. John Pulido, who met appellant in jail in 1992, saw appellant at the casino. Pulido told a defense investigator that he had used a casino "Players" card that tracked his gambling time, but later admitted that he did not use the card.
Appellant testified that he and his friend, Arturo Renteria, were at the casino from midnight to 6:00 a.m. Appellant drove Renteria to Santa Maria and then Guadalupe, where appellant injected methamphetamine. On the way back to Santa Maria, appellant saw the police and panicked. Appellant denied knowing where the beanie came from or that Renteria was carrying methamphetamine.
Possession and Use of A Firearm
Appellant argues that the evidence does not support the finding that he possessed and used a firearm. Nicole testified that appellant barged into her motel room holding a weapon that had a long round barrel. Appellant pointed the weapon at Nicole's friend who put his hands in the air. Nicole did not see the trigger or pistol handle but was "a hundred percent positive it was a gun."
Nicole stated that the target pistol looked like the weapon used in the robbery. It had a long round barrel and the gun sight was missing. On cross-examination, Nicole was asked whether appellant may have used a pipe to commit the robbery. Nicole stated that "I saw a round barrel. It obviously wasn't a pipe. . . . You don't point a pipe at someone."
The testimony of a single witness is sufficient to support the judgment unless the testimony is physically impossible or inherently probable. (People v. Young (2005) 34 Cal.4th 1149, 1181.) Nicole's testimony was corroborated by the beanie, the trench coat, and the pistol in the street gutter. The target pistol was unusual and matched Nicole's description of the robbery weapon. On cross-examination, Nicole was "positive it was a gun."
`On review, we may not reweigh the evidence of determine the credibility of witnesses. (People v. Young, supra, 34 Cal.4th at p. 1181.) Substantial evidence supports the finding that appellant used and possessed a firearm.
Ex-Felon Status
Appellant argues that the conviction for ex-felon in possession of a firearm (count 2) should be reversed because the prosecution failed to prove that he had suffered a prior felony conviction. Before trial, the trial court stated that it was bifurcating the prior prison term enhancement but was not bifurcating appellant's alleged status as a convicted felon with respect to count 2.
Defense counsel, for tactical reasons, wanted to tell the jury that appellant had a prior felony conviction but did not want the jury to know that the prior conviction was for possession of methamphetamine. (See, e.g., People v. Sapp (2003) 31 Cal.4th 240, 261.) Defense counsel stipulated that appellant had suffered a prior felony conviction and stated that appellant would so testify.
On direct, appellant admitted that he had been previously convicted of a crime and had served a jail sentence. Defense counsel, however, failed to ask if appellant had been convicted of a felony. When the prosecution offered a prison packet to establish appellant's ex-felon status, counsel protested: "Wait a minute, wait, wait, wait. There is a stipulation, as far as the felony in possession charge is concerned that he suffered a prior felony. . . ."
Appellant is estopped from claiming that his ex-felon status was not established. "Evidentiary stipulations have long been recognized as tactical trial decisions which counsel has discretion to make without the express authority of the client. [Citations.]" (People v. Adams (1993) 6 Cal.4th 570, 578.) Boykin/Tahl advisements (Boykin v. Alabama (1969) 395 U.S. 238 [23 L.Ed.2d 274]; In re Tahl (1969) 1 Cal.3d 122) are not required where the defendant stipulates to his ex-felon status for purposes of section 12021. (People v. Newman (1999) 21 Cal.4th 413, 417, 421-422.) The trial court did not err in concluding that appellant's ex-felon status was established by stipulation.
Transportation of Methamphetamine
Appellant argues that the evidence at the preliminary hearing was insufficient to hold him to answer on count 4 for transportation of methamphetamine. Even if this was true, appellant is precluded from raising the issue on appeal unless he was denied a fair trial or otherwise suffered prejudice. (People v. Seaton (2001) 26 Cal.4th 598, 646; People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.) "[A] fair trial generally renders harmless any preliminary hearing errors." (People v. Hurtado (2002) 28 Cal.4th 1179, 1190; see also In re Wright (2005) 128 Cal.App.4th 663, 673.)
Appellant makes no showing that he was denied a fair trial or prejudiced by any irregularity in the preliminary hearing proceeding. The trial evidence was overwhelming and clearly supported the verdict. Methamphetamine was in the syringe in appellant's pocket, digital scales were in the car, and appellant's friend/passenger leaped from the car during the police chase carrying a large quantity of methamphetamine. It is well settled that one can aid and abet the transportation of narcotics without possessing them, as when narcotics are in the possession of a passenger. (People v. Rogers (1971) 5 Cal.3d 129, 134; People v. Watterson (1991) 234 Cal.App.3d 942, 944-945.)
Leg Restraint
Appellant argues that the trial court erred in ordering him to wear a "leg iron" during trial. The trial court did not abuse its discretion in finding that appellant was an escape risk because he attempted to flee from the police. (E.g., People v. Fisher (2006) 136 Cal.App.4th 76, 80; People v. Mar (2002) 28 Cal.4th 1201, 1216-1217.) Appellant was ordered to wear a leg brace inside his pants to assure that the device was not apparent to anyone.
Special accommodations were made when appellant testified. Because the device made a snapping sound when appellant stood up, appellant was seated in the witness box before the jury entered the court room. Appellant was directed to stand as the jurors entered and seated themselves to mask the noise. No one claimed that the jurors saw or heard the leg brace device. (See, e.g., People v. Slaughter (2002) 27 Cal.4th 1187, 1214.)
We conclude that the use of the leg restraint even if erroneous, did not deny appellant a fair trial. Our Supreme Court has "consistently held that courtroom shackling, even if error, [is] harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendant's right to testify or participate in his defense. [Citations.]" (People v. Anderson (2001) 25 Cal.4th 543, 596; see People v. Pride (1992) 3 Cal.4th 195, 233 [claim that jury saw shackles was speculative].)
Evading An Officer
Appellant argues that Vehicle Code section 2800.2 creates a mandatory presumption that relieved the prosecution of proving each element of the offense beyond a reasonable doubt. (See e.g., People v. Roder (1983) 33 Cal.3d 491, 498.) Vehicle Code section 2800.1, subdivision (a) makes it a misdemeanor to willfully evade a peace officer wearing a distinctive uniform and driving a marked patrol vehicle with a red light and siren activated. Vehicle Code section 2800.2 elevates the offense to a felony where the defendant flees or evades an officer by driving a vehicle "in a willful or wanton disregard for the safety of persons or property. . . ." (Veh. Code, § 2800.2, subd. (a).) Vehicle Code Section 2800.2, subdivision (b) provides that one way to demonstrate willful or wanton disregard is to show that the defendant committed three or more Vehicle Code violations while fleeing or attempted to evade a pursuing peace officer.
Vehicle Code section 2800.2, subdivision (b) states: "For purposes of this section, a willful or wanton disregard for the safety of persons or property includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time either three or more violations that are assigned a traffic violation point count under Section 12810 occur, or damage to property occurs."
Appellant asserts that Vehicle Code section 2800.1, subdivision (b) creates a mandatory presumption and is unconstitutional. The argument fails because the statute merely "sets out the Legislature's definition of what qualifies as willful and wanton conduct . . . [and] establishes a rule of substantive law rather than a presumption apportioning the burden of persuasion . . . . [Citation.]" (People v. Pinkston (2003) 112 Cal.App.4th 387, 392; accord, People v. Williams (2005) 130 Cal.App.4th 1440, 1445-1446; People v. Mutuma (2006) 144 Cal.App.4th 635, 641; and People v. Laughlin (2006) 137 Cal.App.4th 1020, 1025-1026.)
Vehicle Code section 2800.2, subdivision (b) does not reduce the prosecution's burden of proving willful or wanton disregard for the safety of persons or property. Instead, it defines one of the ways it can be proved as a matter of law, i.e., by proof of three or more traffic violations which are assigned a traffic point count. (People v. Pinkston, supra, 112 Cal.App.4th at pp. 392-393.) "Three point [traffic] violations are willful and wanton disregard by definition, so there is nothing other than their existence for the jury to find." (People v. Mutuma, supra, 144 Cal.App.4th at p. 641.)
The trial court gave CALJIC 12.85 which correctly instructed on the elements of the offense and defined willful and wanton. We reject the argument that CALJIC 12.85 and Vehicle Code section 2800.2, subdivision (b) are unconstitutional or create an impermissible presumption. (People v. Pinkston, supra, 112 Cal.App.4th at pp. 392-394; People v. Laughlin, supra, 137 Cal.App.4th at pp. 1027-1028.)
The CALJIC 12.85 instructed stated in pertinent part: "Every person who flees or attempts to elude a pursuing peace officer in violation of Vehicle Code section 2800.1, subdivision (a) and drives the pursued vehicle in a willful or wanton disregard for the safety of persons or property is guilty of a violation of Vehicle Code section 2800.2, subdivision (a), a felony. [¶] A willful or wanton disregard for the safety of persons or property also includes, but is not limited to, driving while fleeing or attempting to elude a pursuing peace officer during which time the person driving commits three or more Vehicle Code violations, such as driving at an unsafe speed in violation of Vehicle Code section 22350 and failing to stop at a stop sign in violation of Vehicle Code 22450(a), or damage to property occurs. [¶] 'Willful or wanton' means an act or acts intentionally performed with a conscious disregard for the safety of persons or property. It does not necessarily require an intent to injure."
Ineffective Assistance of Counsel
Appellant argues that he was denied effective assistance of counsel because counsel was unable to impeach the robbery victim after she repeatedly and positively identified appellant. To prevail on the claim, appellant must show that counsel's performance fell below an objective level of reasonableness and that, but for counsel's acts or omissions, it is reasonably probable that appellant would have obtained a more favorable verdict. (In re Cudjo (1999) 20 Cal.4th 73, 687.)"[P]rejudice must be affirmatively proved; the record must demonstrate 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" (People v. Bolin (1998) 18 Cal.4th 293, 333.)
Nicole testified that the robber looked like appellant and wore a black beanie and trench coat. On cross-examination, defense counsel asked if it would help if appellant put on the beanie and trench coat and repeated the words, "Give me what you got."
Nicole was "pretty positive" that appellant was the same person who robbed her. Counsel asked, "so what you're saying is, you're pretty positive, but not a hundred percent positive; would that be accurate?" Nicole responded, "No, I am a hundred percent positive." Counsel then asked: "So you're saying that a 'hundred percent positive' and 'pretty positive' are the same thing?" Nicole responded, "I'm a hundred percent positive."
Counsel, as a matter of trial tactics, may have assumed that he could impeach Nicole who was young and nervous. The cross-examination backfired but nothing was lost. Nicole identified appellant at an in-field show up and at a jailhouse lineup. She also identified the beanie cap, trench coat, and pistol used in the robbery. At trial, Nicole stated that there was no doubt in the mind that appellant was the same person who robbed her.
It is not reasonably probable that, but for counsel's errors, appellant would have obtained a more favorable result. (See Strickland v. Washington (1984) 466 U.S. 668, 691-692 [80 L.Ed.2d 674, 696]; People v. Holt (1997) 15 Cal.4th 619, 703.) "Even where defense counsel may have ' "elicit[ed] evidence more damaging to [defendant] than the prosecution was able to accomplish on direct," ' [citation] [appellate courts are] 'reluctant to second-guess counsel' [citation] where a tactical choice of questions led to the damaging testimony." (People v. Williams (1997) 16 Cal.4th 153, 217.)
Firearm Enhancements
The jury received a firearm use instruction (CALJIC 17.19) which stated: "It is alleged in Counts 1, that the defendant personally used a firearm during the commission of the crimes charged." (Emphasis added.) The words "count" and "crime" were inadvertently pluralized. Appellant speculates that the jury may have believed that the firearm enhancements related to the commission or attempted commission of an offense other than robbery. We reject the argument because the CALJIC 17.19 instruction only refers to count 1 for robbery. Moreover, the robbery verdict form is the only verdict form that has firearm use findings. No reasonable juror would have construed the instruction or verdict form to mean that the firearm use allegations applied to some other offense.
Appellant complains that the CALJIC 17.19 instruction lists three different firearm enhancements including section 12022.5, subdivision (a), which applies to personal use of a firearm in the commission or attempted commission of any felony. Appellant argues that the jury may have found that he "used" the firearm when he tossed the pistol out the car during the police chase (i.e. count 3, evading an officer). The trial court, however, instructed that the firearm enhancements only applied to the robbery count and that "[t]he term 'personally used a firearm,' as used in this instruction, means that the defendant must have intentionally displayed a firearm in a menacing manner, intentionally fired it, or intentionally struck or hit a human being with it." (CALJIC 17.19.)
Appellant was charged with three use enhancements: personal use of a firearm in the commission of a robbery (§ 12022.53, subd. (b)); personal use of a firearm in the commission or attempted commission of a robbery (§ 1203.06, subd. (a)(1)); and personal use of a firearm in the commission or attempted commission of any felony (§ 12022.5, subd. (a)).
Assuming, arguendo, that appellant tossed the pistol out of the car, it did not constitute "personal use of a firearm." Nor is there evidence that appellant fired or displayed the pistol in a menacing manner during the police chase. Where the facts provide no basis for juror disagreement, the failure to give a unanimity or amplifying instruction is harmless. (People v. Schultz (1987) 192 Cal.App.3d 535, 539.)
Appellant claims that but for the CALJIC 17.19 instruction, he would have received a more lenient sentence. The trial court stated that the fact that "the jury [found all] . . . three enhancements to be true would seem to be more of a reason to impose the greater enhancement rather than the lesser . . . ." The trial court imposed a 10 year firearm enhancement (§ 12022.53, subd. (b)), the highest enhancement term, consistent with the probation officer's recommendation. It did not err. The section 12022.53 enhancement had to be imposed unless appellant was subject to a different enhancement provision specifying a longer term. (§ 12022.53, subd. (j); People v. Shabazz (2006) 38 Cal.4th 55, 70.)
The Legislature has provided that section 12022.53 enhancements are mandatory, are to be applied '"[n]otwithstanding any other provision of law," and may not be stricken or suspended. (§ 12022.53, subds. (b), (g) & (h).) "Clearly, in enacting [section 12022.53] the Legislature intended to mandate the imposition of substantially increased penalties where one of a number of crimes . . . was committed by the use of a firearm. In so doing, the express language of the statute indicates the Legislature's intent that section 654 not apply to suspend or stay execution or imposition of such enhanced penalties." (People v. Hutchins (2001) 90 Cal.App.4th 1308, 1313; see also People v. Palacios (2007) 41 Cal.4th 720.)
Cunningham v. California
Citing Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), appellant argues that the upper term sentences on count 1 (robbery) and count 2 (felon in possession of a firearm) violate his Sixth Amendment right to jury trial. In Cunningham, the United States Supreme Court held that "the Federal Constitution's jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. [Citations.]" (Id., at p. ___ [127 S.Ct. at p. 860].) The court concluded that, under California's Determinate Sentencing Law, the prescribed statutory maximum sentence is the middle term. (Id., at p. ___ [127 S.Ct at. p. 871.)
The trial court sentenced appellant to a six year upper term on count 1 for robbery, plus 10 years on the firearm enhancement (§ 12022.53, subd. (b)), and one year on the prior prison term enhancement (§ 667.5, subd. (b)). Appellant received a three year upper term on count 2 for felon in possession of a firearm which was stayed pursuant to section 654. On count 3 for evading an officer, appellant was sentenced to a two year midterm to be served concurrent to the sentence on count 1. On count 4 for transportation of a controlled substance, appellant received a one year sentence (one third the midterm) to be served consecutive to the sentence in count 1. The total aggregate sentence was 18 years state prison.
Here the trial court imposed upper terms on counts 1 and 2 based on the following aggravating factors: the crimes were carried out with planning, sophistication, and professionalism; appellant had engaged in prior conduct which indicated a serious danger to society; appellant's prior convictions were numerous and increasing in seriousness; and appellant was on probation or parole when he committed the offenses.
The Attorney General argues that appellant waived the sentencing error by not objecting. We reject the argument because the Supreme Court issued its decision in Cunningham a year after appellant was sentenced. A defendant does not forfeit or waive a legal argument that was not recognized at the time of sentencing. (People v. Sandoval (2007) __ Cal.4th __, __, fn. 4 [2007 DJDAR 11051, 11054, fn, 4]; see also People v. Esquibel (2006) 143 Cal.App.4th 645, 660.)
Appellant's assertion that the upper term sentence violates his Sixth Amendment right to jury trial is without merit. An upper term sentence may be imposed based on a defendant's criminal history and parole/probation status without a jury finding thereon. (People v. Black (2007) __ Cal.4th at __, ___ [2007 DJAR 11041, 11047-11048]; see also People v. Yim (2007) 152 Cal.App.4th 366; People v. Abercrombie (2007) 151 Cal.App.4th 585, 591.) In People v. Black, supra, __ Cal.4th at page __ [2007 DJAR at p. 11045] our Supreme Court recently held that the presence of one aggravating factor is legally sufficient to render a criminal defendant eligible for an upper term sentence. "[S]o long as a defendant is eligible for the upper term, by virtual of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury." (Ibid. [p 2007 DJDAR at p. 11045].) The court concluded that "imposition of the upper term does not infringe upon defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior conviction." (Id., at p. __ [2007 DJAR at pp. 11046-11047].)
Appellant's prior conviction, his criminal history, and his parole/probation status were established by the prior prison finding at the second phase of trial (§ 667.5, subd. (b)), by appellant's prison packet (§ 969b) and rap sheet, and by the probation report. We accordingly conclude that appellant's Sixth Amendment right to jury trial was not violated by the imposition of two upper term sentences. (Id., at p. __ [2077 DJAR at p. 11049].)
The judgment is affirmed.
We concur: GILBERT, P.J. COFFEE, J.