Opinion
E044574.
1-6-2009
THE PEOPLE, Plaintiff and Respondent, v. BRADLEY JOHN FRUMENTO, Defendant and Appellant.
Zandra L. Lopez, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and David Delgado-Rucci, Ronald A. Jakob, and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in Official Reports
A jury found defendant guilty of second degree burglary (Pen. Code, § 459) (count 1) and petty theft with a prior conviction (§666) (count 2). Defendant was sentenced to a total term of two years in state prison with credit for time served. On appeal, defendant contends (1) the trial court prejudicially erred by failing to instruct the jury on the presumption of innocence and the reasonable doubt standard in its predeliberation charge to the jury; and (2) the matter must be remanded for resentencing, as the court failed to properly pronounce judgment. We find no instructional error, but even assuming there was error, we find it harmless. We agree, however, that the matter must be remanded for resentencing.
All future statutory references are to the Penal Code unless otherwise stated.
I
FACTUAL AND PROCEDURAL BACKGROUND
On August 14, 2005, Michael Tamble, a plain-clothed loss prevention associate at the La Quinta Wal-Mart, observed defendant in the shoe department pushing a shopping cart alone. Tamble also saw defendant put on a pair of the stores white tennis shoes, place his old shoes in the box, and return the box to the shelf. Defendant then removed a wallet from a cardboard box that was in his shopping cart and placed it in his left front pants pocket. Thereafter, defendant walked into the hardware department, selected two adapter plugs, and placed them in his left upper shirt pocket.
Defendant then went through the grocery department before approaching one of the registers where he met a woman with a shopping cart. Defendant conversed with the woman, fumbled with some Wal-Mart bags in her cart, and played with her dog. Tamble could not tell whether defendant placed any of the taken items in her bags. The woman then exited the store. Tambles partner Laura Sanchez followed the woman.
Defendant went to another register, where he purchased three items. However, he did not attempt to pay for the shoes he was still wearing, the adapter plugs in his shirt pocket, or the wallet in his pants pocket. Defendant exited the store, and Tamble followed him.
Tamble contacted defendant about five feet outside the store. Defendant complied with Tambles request to accompany him back to the loss prevention office to discuss the stolen items. Defendant identified himself as "Jesse Javier." The woman with whom defendant had spoken, later identified as Debra Flanagan, was brought to the office by Sanchez.
Defendant and Flanagan claimed they did not know each other and "what was his was his and hers was hers . . . ." However, Tamble observed the two speaking with each other with familiarity, and defendant, who knew the dogs name, played with Flanagans dog. Defendant had $24.55 dollars in his possession, as well as a receipt indicating he purchased pancake mix and two other items for $5.44. Flanagan had numerous stolen items in her possession, which she admitted taking.
Tamble confiscated the tennis shoes defendant was still wearing, the adapter plugs, and wallet. Tamble verified that all of the items were the property of Wal-Mart. The total value of the stolen items was about $40. Tamble retrieved defendants old shoes and returned them to him. Defendant jokingly stated, "Well, its a fit." Defendant never said he forgot to pay for the stolen items.
Riverside County Sheriffs Department Corporal Courtney Donowho was dispatched to the Wal-Mart store, where she spoke with Tamble, Flanagan, and defendant. Defendant identified himself as Jesse Javier, claimed to be 26 years old, and provided the corporal with a drivers license. A records check revealed that defendants true name was Bradley Frumento with "Jesse Javier" as one of several aliases he used. While the corporal was filling out paperwork, defendant answered his phone a couple of times as "Ron Lopez." Defendant told Corporal Donowho that "if the loss prevention people said that he stole something, then he must have." When Corporal Donowho searched defendant, he did not have any credit or debit cards, checks, or money orders in his possession.
Flanagan and defendant denied knowing each other to Corporal Donowho. However, the corporal noted that there was a dog in the office that went back and forth between Flanagans and defendants laps throughout the corporals contact with them. Corporal Donowho believed the dog belonged to defendant. Flanagan initially told Corporal Donowho that she had come to the store alone, but later stated, "We arrived at 4 P.M. . . ." In addition, following their arrests, defendant and Flanagan leaned against each other and cuddled together in the backseat of the patrol car.
The parties stipulated that defendant had previously been convicted of burglary on October 9, 1998, and served a term of imprisonment for that offense.
Defendant testified on his own behalf and admitted that he had previously been convicted of conspiracy, possession of cocaine for sale, burglary, and petty theft. He stated that he had met Flanagan for the first time on the day of the incident, August 14, 2005. He had picked her up on the side of the road, where her truck had been broken down and agreed to take her to Wal-Mart. They both went inside the store; while Flanagan shopped, he went to get some pancake mix. He walked to the shoe department and tried on a pair of shoes and placed his old shoes in the box.
Defendant claimed that he forgot he was wearing the shoes after one of the store employees (Sanchez) came over and started talking to him about his pet Chihuahua (which he had in his cart) and his fiancée called him on his cell phone. He further implied that he forgot he was wearing the shoes because he had taken prescription morphine and Vicodin earlier that day for a medical condition. Defendant also stated that he had placed the electrical adapters in his shirt pocket after his dog bumped them to the ground through the slats of the shopping cart, and he did not want them to fall out of the cart again. He then went to the grocery department and picked up syrup and pancake mix before going to the register. Defendant further stated that Flanagan approached him, but that he did not want anything to do with her after she began ripping open packages of batteries and throwing them into her bags. He then went to another register and paid for the food items, but he forgot about the shoes he was wearing and the adapters in his pocket. When he was apprehended by the loss prevention agents, defendant did not think he did anything wrong but thought that they were stopping him because of Flanagan. In regard to the wallet, defendant claimed that he picked up the wallet in the jewelry department before going to the shoe department and then met Flanagan in the hardware section. Flanagan took the wallet he had selected, removed another one from the packaging and told him to put it away. Defendant then placed the wallet Flanagan had given him in his shirt pocket. He claimed that he did not know whether the wallet was stolen.
In rebuttal, Tamble testified that he did not observe defendant and Flanagan together anytime prior to them meeting at the register, and he never saw Flanagan hand defendant a wallet.
Defendant denied telling Corporal Donowho or the store employees his name was Jesse Javier, even though he acknowledged that was the name on his drivers license, which had his photograph on it. He also denied identifying himself as Ron Lopez during the phone call. Defendant claimed that he had two credit cards and an automated teller machine card on him at the time and that he was more than capable of paying for the items. He asserted that he did not intend to steal the items and that it was not unusual for him to place small items in his shirt pocket.
II
DISCUSSION
A. Failure to Repeat Reasonable Doubt Instruction Predeliberation
After the jury was impaneled and sworn, the trial court instructed the jurors on the general principles of law applicable to the case. Within those instructions, the court gave Judicial Council of California Criminal Jury Instructions (CALCRIM) No. 103 as follows: "I will now explain the presumption of innocence and the Peoples burden of proof. The defendant has pleaded not guilty to the charges. The fact that a criminal charge has been filed against the defendant is not evidence that the charge is true. You must not be biased against the defendant just because he has been arrested, charged with a crime or bought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty."
Prior to the prosecutors closing argument, the trial court reminded the jurors that the prosecutor had the burden of proof. During argument, the prosecutor and defense counsel referred to the presumption of innocence and the prosecutions burden to prove beyond a reasonable doubt several times.
In its predeliberation charge to the jury, the trial court did not repeat its instruction on the presumption of innocence and the standard of proof beyond a reasonable doubt as embodied in CALCRIM No. 220. A copy of CALCRIM No. 103 was included in the packet of 31 written instructions to the jury; however, CALCRIM No. 220, which mirrors CALCRIM No. 103, was not included in the written instructions.
Defendant contends reversal per se is required because the omission of CALCRIM No. 220 deprived him of the constitutionally mandated reasonable doubt standard in criminal cases.
A number of cases have held a trial courts failure to instruct on the reasonable doubt standard is federal constitutional error even where the standard of proof is discussed at some other point during the proceedings. (People v. Vann (1974) 12 Cal.3d 220, 226-228 (Vann) [burden of proof explained during jury selection and at closing argument]; People v. Flores (2007) 147 Cal.App.4th 199 [reasonable doubt defined during jury selection and mentioned during prosecutors closing argument; burden of proof stated in instructions on elements of crimes]; People v. Phillips (1997) 59 Cal.App.4th 952, 954-95, 958 (Phillips) [burden of proof mentioned during jury selection and contained in elements of crime, and counsel gave partial definitions of reasonable doubt in closing argument]; People v. Crawford (1997) 58 Cal.App.4th 815, 819-820, 826 (Crawford) [reasonable doubt defined during jury selection; burden of proof referred to in other instructions]; People v. Elguera (1992) 8 Cal.App.4th 1214, 1217-1219, 1224 [reasonable doubt defined during jury selection; burden of proof referred to in closing arguments].)
These cases concerned the omission of CALJIC No. 2.90, which states, "A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether [his] [her] guilt is satisfactorily shown, [he][she] is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving [him][her] guilty beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."
The People, replying on section 1093 and People v. Valenzuela (1977) 76 Cal.App.3d 218 (Valenzuela), argue that the trial court here fully instructed the jury on the presumption of innocence and the standard of poof beyond a reasonable doubt, and therefore there was no instructional error.
Section 1093 sets forth the order in which a trial shall proceed. According to subdivision (f), at the conclusion of the evidence and after closing arguments, the judge may charge the jury and give them a written copy of the instructions given. But subdivision (f) also provides: "At the beginning of the trial or from time to time during the trial, and without any request from either party, the trial judge may give the jury such instructions on the law applicable to the case as the judge may deem necessary for their guidance on hearing the case." Pursuant to section 1094, the trial court may depart from the usual order of trial set forth in section 1093 "for good reasons, and in the sound discretion of the Court . . . ."
Construing these statutes, the court in Valenzuela concluded that trial courts, acting within their sound discretion, may instruct at any time during trial and may generally refuse a request to reinstruct at the close of argument, but they have a sua sponte obligation to reinstruct if it becomes apparent that the jury may be confused on the law, including as the result of counsels argument. (Valenzuela, supra, 76 Cal.App.3d at p. 221.) In Valenzuela, the appellate court found the trial court erred when it gave instructions regarding witness credibility, including CALJIC No. 2.20, at the close of opening statements, but did not give the instructions again following closing arguments in which counsel argued at length the credibility of the identifying witnesses and "attempted in a disjointed fashion to paraphrase a portion of the law on credibility." (Valenzuela, at pp. 221-222; see also People v. Chung (1997) 57 Cal.App.4th 755, 759 [Fourth App. Dist., Div. 2] [no error in preinstructing jury where there is no evidence of juror confusion].) However, because the evidence of guilt was overwhelming, it found the error harmless. (Valenzuela, at p. 222.) Valenzuela explained that, "while the trial court did not prejudicially err in failing to reinstruct the jury, it would have been the better practice to have done so." (Id. at p. 220.) The court also added the caveat that "the judge must always be alert to the possibility that counsel in the course of argument may have befuddled the jury as to the law. If this occurs, then either at the time the confusion arises or as part of the final instructive process the judge should rearticulate the correct rule of law." (Id. at p. 221)
In People v. Lamb (1988) 206 Cal.App.3d 397, the trial court gave 25 instructions before oral argument. After argument, it gave six additional instructions. (Id. at p. 399.) The appellate court again held that the matter is within the trial courts discretion, and the discretion was properly exercised. (Id. at p. 400.) The court concluded that the procedure used was "wholly reasonable and therefore fully within the courts discretion." (Ibid.) It therefore found no error. (Id. at p. 401.)
We agree with the People that defendant has not shown any abuse of the trial courts broad discretion. Section 1093, subdivision (f) plainly authorizes the trial court to instruct the jury on principles of law "[a]t the beginning of the trial or from time to time during the trial. . . ." It does not require rereading of all instructions at the end of trial. Section 1094 specifically gives the trial court discretion to vary the order of proceedings stated in section 1093. As our Supreme Court has stated: "[D]efendant complains of the fact that the trial court chose to give the jury its instructions on circumstantial evidence at the beginning rather than the end of the trial; this procedure, however, is within the discretion of the court." (People v. Webb (1967) 66 Cal.2d 107, 128.)
Defendant, in his reply brief, agrees with the holding of Valenzuela but believes that case is distinguishable "on a very critical point that cannot be ignored," in that Valenzuela did not involve the failure to instruct on the presumption of innocence and the burden of proof beyond a reasonable doubt at the conclusion of the evidence. We discern no difference. As the record reveals, after the jury was sworn and impaneled, the trial court instructed the jury on the presumption of innocence and the burden of proof beyond a reasonable doubt and also gave a written copy of this instruction to the jury during deliberations. The individual jurors could thus refresh their recollection as necessary. Moreover, there was no evidence of juror confusion here. We agree with Valenzuela that the deciding issue is the possibility of juror confusion and that prudence dictates that the jury be fully reinstructed at the end of a long trial. The trial court should be alert to signs of juror confusion in a longer trial and should reinstruct the jury as necessary to dispel any confusion. However, the trial here was not lengthy and was straightforward. Trial began about 11:00 a.m. on September 18, 2007; closing arguments started at 9:34 a.m. on September 19; at 10:31 a.m. on September 19 the jury retired to commence deliberations; and less than an hour later, at 11:27 a.m.. the jury returned to the courtroom having reached a verdict. We also note that defendant did not request rereading of the initial instructions at the end of trial.
Defendants reliance on Crawford and Phillips that failure to instruct on reasonable doubt after presentation of the evidence and before deliberations by the jury is structural error requiring reversal per se is misplaced. In Crawford, the court instructed the entire venire on reasonable doubt during voir dire before the jury was impaneled and before trial began, and the packet of instructions available to the jury did not include a reasonable doubt instruction. (Crawford, supra, 58 Cal.App.4th at pp. 819-820.) Here, on the other hand, the trial court instructed on reasonable doubt and the presumption of innocence after the jury was impaneled and after trial had began, and the packet of instructions available to the jury — the packet the jury requested and received during deliberations — included CALCRIM No. 103.
Phillips also does not aid defendant. That case involved the complete failure to instruct on the meaning of reasonable doubt, the failure to instruct on the prosecutions burden, and the failure to instruct on the presumption of innocence. (Phillips, supra, 59 Cal.App.4th at pp. 953-954, 958.) In addition, in Phillips, both counsel gave partial and conflicting definitions of the phrase in closing argument that were "more apt to confuse than to enlighten" the jury. (Id. at p. 958.)
Defendant also relies on cases in which the trial court failed to instruct at any time during the trial on the prosecutions burden to prove the defendants guilt beyond a reasonable doubt. (See Vann, supra, 12 Cal.3d at p. 227 [reversing conviction where trial court failed to instruct jury on reasonable doubt; instruction requiring proof beyond a reasonable doubt only as to circumstantial evidence held insufficient in direct evidence case]; People v. Elguera, supra, 8 Cal.App.4th 1214, 1217-1218, 1223 [reversing conviction where trial court instructed prospective, but not sworn, jurors as to prosecutions burden of proving defendants guilt beyond a reasonable doubt and failed to provide jury any oral or written definition of reasonable doubt].) Such is not the case here. Neither is this case one in which the jury was misinformed as to the nature of the prosecutors burden. (Cf. Sullivan v. Louisiana (1993) 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 [reversing conviction where trial court gave jury constitutionally deficient reasonable doubt instruction].)
Based on the foregoing, under the circumstances of this case, we find no instructional error.
In any event, even if we assume for the purpose of analysis that the trial court erred in failing to reinstruct the jury on the presumption of innocence and the reasonable doubt instruction prior to deliberation, the error was harmless. Under these circumstances, the state-law standard of harmless error as set forth in People v. Watson (1956) 46 Cal.2d 818, 836 applies. (See e.g., People v. Bradford (1997) 15 Cal.4th 1229, 1325; People v. Humphrey (1996) 13 Cal.4th 1073, 1089; People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.) We see no reasonable probability that the trial court reinstructing the jury on the presumption of innocence and the reasonable doubt standard prior to deliberation would have led to a more favorable verdict. The evidence of defendants guilt here was overwhelming, and his defense was incredible. Defendant was seen stealing a pair of the stores shoes by the loss prevention officer. He was also seen stealing two adapter plugs and a wallet. Defendants admissions also proved his guilt.
B. Pronouncement of Judgment
Defendant argues that the matter must be remanded to the trial court because the court failed to pronounce judgment on count 2. The People agree.
Following argument at the sentencing hearing, the trial court stated, "I am going to sentence the defendant to the midterm of 24 months in state prison," without specifying how it was imposing the sentence.
As the People point out, second degree burglary and petty theft with a prior each carry a middle term sentence of two years. (See §§ 18, 461, 666.) The court did not state in its oral pronouncement which count it selected for the 24-month sentence. Additionally, the court did not orally pronounce or stay any sentence for the other count. In this regard, the minute order and the abstract of judgment are in error, as both of them indicate defendant was sentenced to two years on count 1 and a concurrent term of two years on count 2. The minute order and the abstract of judgment also show the trial court ordered defendant to pay $60.63 in actual restitution. However, the court did not order any actual restitution in its oral pronouncement of judgment.
In a criminal case, the judgment is the sentence orally pronounced by the court. (People v. Thomas (1959) 52 Cal.2d 521, 529, fn. 3.) When the record is in conflict, the part of the record that is entitled to greater credence will prevail. (See People v. Smith (1983) 33 Cal.3d 596, 599.) Here, the transcript of the sentencing hearing more accurately reflects the courts sentence than does the abstract of judgment or the courts minute order of the sentencing hearing.
In addition, the court had a duty to pronounce judgment on each count of which defendant was convicted. (Hoffman v. Superior Court (1981) 122 Cal.App.3d 715, 724.) Where the record is unclear on the courts treatment of each count, it is appropriate to "remand the matter to permit the trial court to clarify" the sentence. (People v. Garcia (1997) 59 Cal.App.4th 834, 839; see also Hoffman, at pp. 724-725.) The appropriate procedure was to pronounce sentence on each count, and then, since it was subject to section 654, to stay execution of the sentence on the petty theft count. (See People v. Miller (1977) 18 Cal.3d 873, 886; see also People v. Bernal (1994) 22 Cal.App.4th 1455, 1457-1458.) Since the court did not do so, the matter must be remanded for resentencing. (See Hoffman, at pp. 724-725.)
A stay pursuant to section 654 was required by law. When a burglary is committed for the purpose of committing a theft once inside the building, the defendant may be convicted of both burglary and theft, but punishment for the theft offense must be stayed under section 654. (See People v. Bernal, supra, 22 Cal.App.4th at p. 1458.)
At noted by the People, on remand, the trial court should also determine if defendant received excessive presentence custody credits and whether the amount of actual restitution ordered should be $40 instead of $60.63.
III
DISPOSITION
We remand the matter to the trial court for resentencing defendant on counts 1 and 2. In all other respects, the judgment is affirmed.
We concur:
RAMIREZ, P.J.
MILLER, J.