Opinion
2d Crim. No. B159396.
10-15-2003
THE PEOPLE, Plaintiff and Respondent, v. PEDRO PAGAN GONZALES et al., Defendants and Appellants.
Ellen M. Matsumoto, under appointment by the Court of Appeal, for Pedro Pagan Gonzales, Defendant and Appellant. Jerry D. Whatley, under appointment by the Court of Appeal, for Miguel Palenzuela, Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Marc J. Nolan, Supervising Deputy Attorney General, Steven E. Mercer, Deputy Attorney General, for Plaintiff and Respondent.
Pedro Pagan Gonzales and Miguel Palenzuela were convicted by jury of residential burglary (counts 1 and 2; Pen. Code, § 459), receiving stolen property (counts 6-9; § 496, subd. (a)) and conspiracy to commit residential burglary (count 10; §§ 182, subd. (a)(1)/459.) Palenzuela alone was convicted of evading an officer (count 3; Veh. Code, § 2800.2, subd. (a).) Both were convicted of being a felon in possession of a firearm. (counts 4 and 5; § 12021, subd. (a)(1).)
Pedro Pagan Gonzales is also known as Percy Suniga.
All further statutory references are to the Penal Code unless otherwise stated.
Following a bifurcated trial, the court found true that Palenzuela had one prior "strike" conviction within the meaning of sections 1170.12, subdivisions (a) through (d) and 667, subdivisions (b) through (i). The court also found true that Gonzales had four prior "strike" convictions and had served four prior prison terms within the meaning of section 667.5, subdivision (b).
Palenzuela was sentenced to a term of 27 years 8 months. The sentence consisted of 12 years for count 1; 2 years 8 months for count 2; one year 4 months each on counts 3, 5, 6, 7, 8 and 9; plus 5 years for a prior conviction enhancement. The court imposed a 6-year term for conspiracy to commit residential burglary on count 10, which it stayed pursuant to section 654.
Gonzales was sentenced to a term of 100 years to life, consisting of four consecutive terms of 25 years to life for counts 1, 2, 4 and 6. The court imposed a 6-year term for conspiracy to commit residential burglary on count 10, which it stayed pursuant to section 654.
Appellants challenge the sufficiency of the evidence supporting their convictions for receiving stolen property, allege instructional and sentencing error and contend the trial court erred in denying their motion under People v. Wheeler (1978) 22 Cal.3d 258. Palenzuela argues he was denied his full entitlement to peremptory challenges. Gonzales alleges vindictive prosecution and contends his sentence constitutes cruel and unusual punishment. We affirm.
FACTS
Burglaries Committed January 10, 2001
(Burglary and Conspiracy to Commit Burglary)
On January 10, 2001, Karen Mayfield left her home in Torrance at approximately 7:00 a.m. Her windows were closed and doors locked. She returned home at about 8:20 p.m. and noticed that the front door was unlocked and there were pry marks on a sliding glass door. Her home had been ransacked. At the Palos Verdes Police department she identified 38 items that had been taken from her house.
Lila Burden lived on Pacific Coast Highway in Torrance. She left her home at approximately 9:45 a.m. on January 10. She returned in the late afternoon to find that her backdoor and a sliding glass door were open and that her home had been ransacked. Missing from her home were numerous pieces of jewelry, a radio, camera and credit cards. She later identified these items at the Palos Verdes Police Department.
Randy Matsumoto was Lilas neighbor. At 11:30 a.m. on that same day, a Hispanic man came to his door, and asked if he was "Mr. Goldstein." Matsumoto told him no, and the man said he was there to give an estimate to remodel the kitchen. Matsumoto became suspicious and followed the man to a gold mid-sized American car and wrote down the license plate number, 4LXT309. A smaller-framed older Hispanic man was already seated in the car. The first man got in the drivers seat and drove off.
At 11:45 a.m. Helen Spates arrived at her Palos Verdes home to find two men standing near her front door. One was tall and appeared to be in his 30s. The other was shorter and appeared to be in his 40s or 50s. Spates described the men as either Hispanic or Mideastern. She stopped her car and asked them what they wanted. They walked toward her and the taller man asked for "Eric Ball." He said they were there to give an estimate on a counter top. After Spates told them she didnt know an Eric Ball the men got into a "brownish gold" four door Oldsmobile. Spates copied down their license plate, 4LXT309. The younger man got in the drivers seat and they drove northwest onto Via Rivera.
Nancy McCauley lived on Palos Verdes Drive West. At approximately 12:00 p.m. she was in her home when she heard a loud cracking sound. She saw the blinds flutter and looked outside to find a tall dark-haired man facing her. He had broken the screen door. McCauley yelled and the man turned and ran up the driveway. McCauley ran to her front window and saw an older man on the front porch. He turned and ran towards a "tanish-brown" car. The younger man got in the drivers seat and they drove in the direction of the police station. McCauley called 911.
Evading an Officer
The police received a radio call concerning an attempted burglary by two Hispanic males. Their car was described as a brown sedan heading east, in front of the police station. Within several minutes an officer saw the car, license plate number 4LXT309. As he followed the car, it accelerated to speeds up to 100 mph. During the chase a handgun, credit cards, personal papers and a checkbook were thrown out of the passenger side window. The car eventually collided with a pickup truck. The driver and passenger fled on foot and were apprehended shortly afterwards.
Felon in Possession of a Firearm
The police recovered a .32-caliber semiautomic handgun from the roadway that resembled the firearm thrown from the car window. Each appellant stipulated that he had previously been convicted of a felony.
Receiving Stolen Property
The police found property in appellants car belonging to Burden and Mayfield. Each appellant had in his possession a key to a public storage facility. As a result, the police executed a search warrant and found the storage unit had been rented under appellants aliases. The unit contained hundreds of items, some of which had been stolen during residential burglaries a month earlier. On December 11, 2000, property was stolen from the homes of Alex Topete and Alice Gaines. At the storage facility police found 10 items belonging to Topete and 15 items stolen from the home of Gaines. On January 4, 2001, the home of Phillip Zorn was burglarized and, the following day, property of Bobby Rollins was taken from his home. At the storage facility, the police found four items belonging to Zorn and six items belonging to Rollins.
DISCUSSION
Peremptory Challenges
Palenzuela argues that he was deprived of the total number of peremptory challenges he was entitled to by statute, constituting reversible error. Code of Civil Procedure section 231, subdivision (a) provides that when a criminal defendant is charged with an offense punishable with death or life imprisonment, both the defendant and the People are each entitled to 20 peremptory challenges. If the defendant is tried for any other offense, he and the People are each entitled to 10 peremptory challenges. When defendants are tried jointly, their challenges must be exercised jointly. At a joint trial, however, each defendant is entitled to five additional challenges which may be exercised separately. The People are entitled to additional challenges equal to the number of separate challenges allowed the defendants.
Palenzuela was not facing possible life imprisonment. During jury selection, the trial court and parties discussed the matter and agreed that Gonzales was facing a possible life term due to his four prior "strike" convictions. He was therefore entitled to 20 peremptory challenges. It was undisputed that Palenzuela would have only been entitled to 10 challenges if tried separately.
A dispute arose as to the number of joint peremptories that should be allotted to Palenzuela, given that he was being tried with a codefendant who had been allotted 20 peremptory challenges. The trial court ruled that Palenzuela was entitled to 10 peremptory challenges and Gonzales was entitled to 20. In addition, appellants could exercise 10 challenges jointly and each defendant would have 5 separate challenges. Palenzuela was therefore entitled to a total of 15 peremptory challenges. During jury selection, appellants jointly exercised 10 peremptory challenges and Palenzuela exercised his 5 separate challenges. The trial court denied Palenzuelas subsequent requests for additional joint and separate challenges.
Palenzuela does not argue that he was entitled to additional peremptories under the statute. Rather, he alleges that Gonzales was unfairly allotted more peremptories, making their positions unequal. Palenzuelas contention is that, had the trial been severed, he would have been entitled to 10 peremptory challenges and would not have required the approval of Gonzales counsel to exercise those challenges. In addition, the prosecutor would only been entitled to 10 challenges. However, because he was tried jointly, the prosecutor was given a total of 30 peremptory challenges. Palenzuela concedes that there was no violation of his constitutional rights to due process, equal protection or fundamental fairness.
The People contend that the trial court erred in the calculation of Gonzales peremptories, thus both defendants were entitled to only 15 challenges, so no unfairness resulted. The People claim that Gonzales was not facing a possible life sentence because his most serious offense was for first degree burglary, which is punishable by two, four or six years in state prison. (§§ 459, 461.)
We agree. Gonzales conviction for first degree burglary could have resulted in a maximum term of six years in state prison. The trial court later found true the allegations that Gonzales had four prior "strike" convictions for burglary and had served four prior prison terms. Once the strike allegations were proved true, Gonzales was exposed to a possible life sentence. However, his prior conviction allegations were not part of "the offense charged." First degree burglary is not "punishable with death, or with imprisonment in the state prison for life . . . ." (Code Civ. Proc., § 231, subd. (a).) That Gonzales was charged with multiple offenses does not change this result. A defendant is entitled to additional peremptory challenges only when he is subject to a life term for a single crime. (People v. Brown (1996) 42 Cal.App.4th 461, 477.) We reject Palenzuelas claim. He has failed to show that the allotment of peremptory challenges resulted in prejudice or an unfair trial.
Wheeler Motion
During jury selection, the prosecutor exercised a peremptory challenge against a prospective African-American juror. Defense counsel brought a motion to dismiss the venire under People v. Wheeler, supra, 22 Cal.3d 258, 276-277, arguing that the juror had been excused solely because of her ethnicity. Appellants challenge the exclusion of the juror, claiming she was excluded based on group bias. They also allege that the trial court failed to fully evaluate the prosecutions reasons for exercising its peremptory challenges before denying the Wheeler motion.
The juror disclosed that her brother had been arrested 12 years earlier for receiving a stolen car. The charges against him were later dismissed. Her babysitters son had a recent burglary conviction. She believed that she would be biased in favor of the prosecution and could not decide the case fairly. Upon questioning by the trial court, the juror stated that she would try to be fair. The court inquired further and the juror explained that the case against her babysitters son involved assault, which caused her to favor the prosecution. Because the instant case did not involve an assault, the juror thought she might be able to be impartial. She had been a juror once before in a case involving domestic violence. In making the Wheeler motion, defense counsel argued there was no reason for excusing the juror, who appeared to be pro-prosecution. The court noted that four minority jurors remained on the panel and denied the motion.
It is a violation of the state and federal Constitutions to use peremptory challenges to remove prospective jurors solely on the basis of a presumed group bias based on membership in a racial group. (People v. Box (2000) 23 Cal.4th 1153, 1187; People v. Wheeler, supra, 22 Cal.3d at pp. 276-277; Batson v. Kentucky (1986) 476 U.S. 79, 89.) A party who believes that peremptory challenges have been exercised on the basis of group bias must make a prima facie case of discrimination. If the court finds that such a case has been made, the prosecution is required to state its reasons for exclusion. The trial court must then determine whether purposeful racial discrimination has been proved. (People v. Silva (2001) 25 Cal.4th 345, 384.)
The United States Supreme Court has established a three-step analysis to determine the existence of racial discrimination in the exercise of peremptory challenges. "[O]nce the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination." (Purkett v. Elem (1995) 514 U.S. 765, 767; People v. Silva, supra, 25 Cal.4th at p. 384.)
Appellants failed to satisfy the first step of the analysis. They did not carry their burden of making a prima facie case of racial discrimination. It was therefore unnecessary for the prosecutor to offer a race-neutral reason for exclusion. Accordingly, we affirm the denial of appellants Wheeler motion.
Vindictive Prosecution
Shortly after his arrest, Palenzuela was interviewed by a police detective. Palenzuela was advised of his Miranda rights, which he invoked. He then asked to speak to the detective "off the record." Palenzuela offered to disclose the location of a storage locker if the detective would not request the filing of burglary charges against him. The detective agreed, and Palenzuela disclosed the location, which led to the discovery of the property of four victims.
Appellants were charged with five counts of criminal conduct: evading an officer causing injury (Palenzuela), felon in possession of a firearm (Gonzales), exhibiting a deadly weapon to a police officer to resist arrest (Palenzuela) and two counts of first degree residential burglary as to both appellants. The district attorney offered Palenzuela a plea agreement of nine years four months in exchange for a guilty plea to one count of burglary and one count of evading an officer. The district attorney noted that the disposition did not include additional charges the People might bring after further investigation of the stolen property.
After a noon recess, the district attorney indicated that no new charges would be filed resulting from the arrest of Palenzuela and Gonzales. "Weve investigated on the materials that were recovered via the search warrant and from the vehicle directly, and were not going to be filing any additional charges." Palenzuela indicated that he did not want to accept the plea agreement and understood that going to trial would increase his exposure to a lengthier sentence.
Palenzuelas counsel alleged in his declaration in support of the motion that the recess was taken to allow the People to speak the investigating detectives to determine whether additional charges would be filed.
Appellants subsequently entered not guilty pleas and denied the priors. At the readiness hearing, the People indicated that they were unable to proceed to trial the following day. They stated they would dismiss and refile the case. The trial court dismissed the charges pursuant to a defense motion under Penal Code Section 1382. Appellants were arrested and arraigned that same day. A new information was filed alleging 16 counts, including 4 counts of receiving stolen property.
Although the information alleged 16 counts against appellants, six counts (3, 4, 5, 8, 9 and 16) were dismissed several months later in furtherance of justice. The remaining charges were renumbered 1-10 and included four counts of receiving stolen property.
Palenzuela brought a motion to dismiss for vindictive prosecution and was joined in the motion by Gonzales. The People filed opposition and, following a hearing, the motion was denied. Palenzuela argues on appeal that his rejection of the plea agreement caused the People to retaliate by filing additional charges against him. He contends that his convictions on these counts (totaling five years four months) were the product of vindictive prosecution and must therefore be reversed.
The People state in their brief that the court noted that jeopardy had not yet attached and there was no presumption of vindictive prosecution, referring us to section D1-D4 of the reporters transcript. The parties refer to sections C1-C2 and D1-D4 of the reporters transcript, but they have not included them in the record on appeal.
Palenzuela argues that the assurances of the detective and district attorney that no additional charges would be filed created a presumption of vindictiveness. This presumption arose when the prosecutor increased the charges after Palenzuela refused the plea bargain. He relies on Twiggs v. Superior Court (1983) 34 Cal.3d 360, 369-370 to argue that a defendant may not be deterred from excising a procedural right by the possibility of prosecutorial retaliation.
The People contend that the concept of vindictive prosecution is applicable only to a defendants exercise of a procedural right after he has been convicted. They claim that this principle does not extend to a pretrial setting because it would interfere with a prosecutors broad discretion to determine the charges to be filed.
We agree. California courts have uniformly held that there is no presumption of vindictiveness in the pretrial context. (People v. Bracy (1994) 21 Cal.App.4th 1532, 1544-1545.) "Prosecutorial discretion in determining the charges to be filed is basic to the framework of our criminal justice system." (People v. Farrow (1982) 133 Cal.App.3d 147, 152.) We find instructive People v. Hudson (1989) 210 Cal.App.3d 784. There, after a defendant withdrew her guilty plea to misdemeanor petty theft, a different prosecutor filed felony theft charges against her. The defendant moved to dismiss on the grounds of vindictive prosecution. Under those circumstances the presumption was inapplicable because the additional charges resulted from a reevaluation of the evidence. (Id. at p. 788.) There was no indication that the prosecutors action was motivated by malice. (Id. at p. 789.)
Here, the decision to file additional charges was made before trial after a reevaluation of the evidence by another prosecutor. The record contains no evidence the prosecutors charging decisions were motivated by a desire to punish appellants for exercising their right to a jury trial. The trial court properly denied appellants motion.
Substantial Evidence of Receiving Stolen Property
Each appellant was convicted of four counts of receiving stolen property. They challenge their convictions, arguing that the stolen property was discovered in the storage unit on the same date, rather than on four separate occasions. As a result, they contend, the evidence supports only one count of receiving stolen property.
To sustain a conviction for receiving stolen property, the evidence must show that the property was stolen; the defendant was in possession of that property (whether active, constructive, exclusive or joint) and the defendant knew the property was stolen. (§ 496, subd. (a); People v. Price (1991) 1 Cal.4th 324, 464.) Appellants rely on People v. Lyons (1958) 50 Cal.2d 245, 275 (disapproved on other grounds in People v. Green (1980) 27 Cal.3d 1, 34) to argue that, when goods stolen from different sources were received on a single occasion, there is only one offense of receiving stolen property.
We disagree. The storage unit contained the property of Gaines, Topete, Zorn and Rollins. The evidence showed that the homes of Gaines and Topete had been burglarized on December 11, 2000. Zorns home was burglarized on January 4, 2001 and Rollins home was burglarized on January 5, 2001. Because the property was stolen from four different homes on four different occasions, the jury could reasonably have inferred that the property was received at different times in different transactions. (People v. Bullwinkle (1980) 105 Cal.App.3d 82, 92, disapproved on other grounds in People v. Laiwa (1983) 34 Cal.3d 711, 728.) The jurys findings are supported by substantial evidence.
Instructional Error
Palenzuela argues that the trial court erroneously instructed the jury with CALJIC No. 2.15. He claims that it lessened the prosecutions burden to prove the elements of burglary beyond a reasonable doubt. Palenzuelas claim has been previously raised and rejected. (People v. Gamble (1994) 22 Cal.App.4th 446, 454-455; People v. Esquivel (1994) 28 Cal.App.4th 1386, 1400-1401.) CALJIC No. 2.15 allows a jury to infer that a defendant is guilty of burglary or receiving stolen property when he is found in possession of stolen property and there is corroborating evidence of guilt. "However, this corroborating evidence need only be slight, and need not by itself be sufficient to warrant an inference of guilt." (CALJIC No. 2.15.) Such evidence includes consideration of the time, place and manner of the defendants possession, whether he had an opportunity to commit the charged offense and his conduct or other evidence which tends to connect him with the crime. (Ibid.) Palenzuela objects to the language in the instruction allowing the jury to infer guilt on the basis of "slight" corroborating evidence. He contends that such evidence, standing alone, could have allowed the jury to find him guilty of burglary based only on the fact that he was in possession of stolen property.
CALJIC No. 2.15 "is a permissive, cautionary instruction which inures to a criminal defendants benefit by warning the jury not to infer guilt merely from a defendants conscious possession of recently stolen goods, without at least some corroborating evidence tending to show the defendants guilt." (People v. Barker (2001) 91 Cal.App.4th 1166, 1174; see People v. Johnson (1993) 6 Cal.4th 1, 35; People v. Holt (1997) 15 Cal.4th 619, 677.) "Possession of recently stolen property is so incriminating that to warrant conviction there need only be, in addition to possession, slight corroboration in the form of statements or conduct of the defendant tending to show his guilt." (People v. McFarland (1962) 58 Cal.2d 748, 754.) An inference of guilt is justified when recently stolen property is found in the conscious possession of a defendant and the possession is not explained. (Id. at p. 755.)
The constitutionality of CALJIC No. 2.15 has been upheld where there was sufficient corroborating evidence to allow the jury to find that a defendant possessed stolen property and had an intent to steal. (People v. Smithey (1999) 20 Cal.4th 936, 977.) A permissive presumption does not shift the burden of proof because it leaves the trier of fact free to credit or reject the inference. The reasonable doubt standard is affected "only if, under the facts of the case, there is no rational way the trier [of fact] could make the connection permitted by the inference." (Ulster County Court v. Allen (1979) 442 U.S. 140, 157 .) On the day of the Burden and Mayfield burglaries, police found property in appellants car belonging to those individuals. One month earlier, the homes of Topete, Gaines, Zorn and Rollins had been burglarized. Palenzuela had on his person a key to a storage unit containing property from all four homes. From this evidence the jury could reasonably have inferred that Palenzuela had received stolen property and there was corroborating evidence of guilt.
Jury instructions are not considered in isolation. Whether they are correct or adequate is determined by consideration of the entire charge to the jury. (People v. Holt, supra, 15 Cal.4th at p. 677.) The jury was instructed with the elements of the charged crimes and the burden of proof. It is unlikely that they interpreted CALJIC 2.15 to lower the prosecutions burden of proving Palenzuelas guilt beyond a reasonable doubt.
Cruel and Unusual Punishment
Gonzales argues that his sentence of 100 years to life is cruel and unusual punishment under the federal and state Constitutions. (U.S. Const., 8th Amend., Cal. Const., art. I, § 17.) A punishment may be cruel and unusual if it is so disproportionate to the crime that it "shocks the conscience and offends fundamental notions of human dignity." (People v. Cooper (1996) 43 Cal.App.4th 815, 825; In re Lynch (1972) 8 Cal.3d 410, 424.)
When analyzing a claim of disproportionality under the state Constitution, we examine (1) the nature of the offense and offender, (2) the sentence compared to sentences for more serious offenses in California, and (3) the sentence compared to sentences for the same offense in other states. (In re Lynch, supra, 8 Cal.3d at pp. 425-429; People v. Dillon ( 1983) 34 Cal.3d 441, 479.) Gonzales sentence is reasonably proportional to the offense and the offender. The severity of the sentence is due to his prior convictions under the Three Strikes law and his general recidivist history. Gonzales conduct shows an "almost unrelenting pattern of criminal conduct." (People v. Goodwin (1997) 59 Cal.App.4th 1084, 1094.)
Gonzales sentence conforms to sentences for repeat offenders under the Three Strikes law and is also proportional to sentences for repeat offenders in other states. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1513-1516; see Lockyer v. Andrade (2003) ___ U.S. ___ .) Nor does Gonzales sentence violate the Eighth Amendment. (Ewing v. California (2003) ___ U.S. ___, ___, [123 S.Ct. 1179, 1185]. ) Under federal law, recidivism justifies the imposition of longer sentences for recidivists. (Harmelin v. Michigan (1991) 501 U.S. 957, 962; Parke v. Raley (1992) 506 U.S. 20, 27; Rummel v. Estelle (1980) 445 U.S. 263, 284.) Gonzales is a recidivist. He has eight underlying felony convictions and four prior "strike" convictions. On this record, his sentence did not constitute cruel or unusual punishment.
We have considered and rejected the contentions raised in Gonzales supplemental letter brief, filed August 12, 2003.
The judgments are affirmed.
We concur: YEGAN, Acting P.J. and PERREN, J.