Opinion
E067740 E067741
07-27-2018
THE PEOPLE, Plaintiff and Respondent, v. ISRAEL IBARRA, Defendant and Appellant.
Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Annie Featherman Fraser and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. 16CR013080 & FSB1404559) OPINION APPEAL from the Superior Court of San Bernardino County. William Jefferson Powell IV, Judge. Affirmed. Kenneth H. Nordin, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, and Annie Featherman Fraser and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
A jury convicted defendant and appellant, Israel Ibarra, of evading an officer with willful disregard for the safety of persons or property, a felony (Veh. Code, § 2800.2, subd. (a); count 1) and possession of methamphetamine, a misdemeanor (Health & Saf. Code, § 11377; count 2). In a bifurcated trial, the jury found defendant had two prison priors. (Pen. Code, § 667.5, subd. (b).) Defendant was sentenced to five years in prison: the upper term of three years on count 1 plus one year for each prison prior.
On count 2, the court imposed an additional term and ordered that term to run concurrent to defendant's sentences in two other cases.
William Lee, a supervising deputy district attorney with the San Bernardino County District Attorney's Office, testified for the prosecution during the bifurcated trial on the prison priors. Lee testified that the case files in two cases showed defendant was the person who suffered the convictions in the two cases, and that defendant was sentenced to prison for each conviction on the dates of the convictions. After Lee testified, defense counsel moved the court to either: (1) strike Lee's testimony, (2) declare a mistrial on the prison priors, or (3) recuse the district attorney's office from trying the prison priors. The trial court denied these alternative motions, finding Lee did not act as an advocate but only as a witness, and thus did not violate rule 5-210 of the California Rules of Professional Conduct.
All references to rules are to the California Rules of Professional Conduct.
In this appeal, defendant claims the trial court violated his due process rights in refusing to grant any of his requested relief for what he maintains was Lee's improper testimony. Because the record shows Lee did not act as an advocate in the case but only as a witness, there was no due process violation, and the motions to strike Lee's testimony, declare a mistrial, or recuse the district attorney's office were properly denied.
Defendant also claims the upper term on count 1 was improperly imposed based on the court's erroneous understanding that defendant had "an alcohol addiction" rather than his undisputed "drug addiction." We reject this claim, as the record shows the upper term was properly imposed. Thus, we affirm the judgment in all respects.
II. FACTUAL BACKGROUND
Around 2:00 a.m. on April 15, 2016, defendant was driving a pickup truck in the City of Muscoy. California Highway Patrol Officer Marten Carrillo was on patrol in his marked patrol vehicle when he noticed the truck cut off another vehicle. The officer began following the truck and noticed it was "weaving or drifting" between lanes, which is a Vehicle Code violation. The officer drove behind the truck and activated the overhead lights on his patrol vehicle in order to initiate a traffic stop, but defendant did not stop.
Instead, defendant began driving the truck at high speeds through a residential area as Officer Carrillo pursued him. Defendant also failed to stop at several stop signs and drove on the wrong side of the road toward potentially oncoming traffic. After it became clear that defendant was not stopping, the officer activated his patrol siren, but defendant continued to evade the officer. A video of the pursuit was played for the jury.
After evading the officer for several minutes, defendant stopped the truck in the driveway of a residence. After reading defendant his Miranda rights, the officer asked defendant why he did not stop sooner. Defendant said he was driving without a license, he had methamphetamine in his pocket, and he did not want the truck to be towed because it belonged to his friend. The officer searched defendant and found .26 grams of methamphetamine in his pocket.
Miranda v. Arizona (1966) 384 U.S. 436.
III. DISCUSSION
A. Defendant's Motions to Strike or Otherwise Remedy Lee's Testimony in the Jury Trial on the Prison Prior Allegations Were Properly Denied
Defendant claims his due process rights were violated during the jury trial on the prison prior allegations because Lee's testimony was the only evidence the prosecution offered to prove the allegations. He claims Lee violated rule 5-210 by acting as both an advocate and a witness for the prosecution. We disagree.
1. Relevant Background
During the jury trial on the prison priors, the court took judicial notice of the case files in two San Bernardino County cases, Nos. FSB1502569 and FSB1404559, and found that defendant was the person named in each case file. Case No. FSB1404559 involved an October 7, 2014, conviction for possessing methamphetamine for sale (Health & Saf. Code, § 11378), and case No. FSB1502569 involved an August 5, 2015, conviction for receiving stolen property (Pen. Code, § 496, subd. (a)). The jury was tasked with determining (1) whether defendant was the person who suffered each conviction, (2) whether defendant served a separate prison term for each conviction, and (3) if the answers to the first two questions were yes, whether during the five-year periods following his releases from custody, defendant either (a) failed to remain free of prison or custody or (b) committed an offense resulting in a felony conviction. (Pen. Code, § 667.5, subd. (b).)
The prosecutor called Lee to testify concerning what the documents in the case files showed. Lee testified he had been a deputy district attorney for 18 years, and for the previous four years he had been a supervising deputy district attorney with the San Bernardino County District Attorney's Office. Lee was familiar with "the plea form process" that deputy district attorneys and defense attorneys sign with defendants when the defendant is pleading guilty to an offense.
Lee testified that the felony plea form in case No. FSB1404559 showed that, on October 7, 2014, defendant pled guilty to possessing methamphetamine for sale, a violation of Health and Safety Code section 11378, and was sentenced to three years in county prison for the conviction. The plea form in case No. FSB1502569 showed that, on August 5, 2015, defendant pled guilty to receiving stolen property with a value over $950, a violation of Penal Code section 496, subdivision (a), and was sentenced to two years in county prison for the conviction. Lee did not sign either of the felony plea forms, and he was not involved in the prosecution of either case with the possible exception of making a "minor" court appearance.
Lee's testimony concluded shortly after 4:30 p.m. The next morning, defense counsel objected to Lee's entire testimony on the ground it violated rules 5-200 and 5-210. Rule 5-200 provides that an attorney may not assert personal knowledge of facts at issue unless he or she testifies as a witness. Rule 5-210 prohibits an attorney from acting as an advocate before a jury which will hear testimony from the attorney, except in limited circumstances. (See People v. Donaldson (2001) 93 Cal.App.4th 916, 927-931.)
Defense counsel acknowledged that the court had sustained "a number" of defense counsel's "narrative" and "nonresponsive" objections to Lee's testimony, but claimed this was an insufficient "cure" for Lee's testimony. Thus, defense counsel moved the court to either (1) strike Lee's entire testimony, (2) declare a mistrial with prejudice on the prison priors, in effect striking the allegations, or (3) recuse the entire San Bernardino County District Attorney's Office from trying the prison priors.
Defense counsel argued Lee was a supervisor in the district attorney's office; the prosecutor appeared to be unprepared for the trial on the prison priors; and Lee often did not answer the prosecutor's question or gave unresponsive answers, "thereby either signaling" to the prosecutor what her next question should be or "filling in gaps" he believed the jury needed to hear. Defense counsel argued Lee had "stepped over" the "fine line between acting as a witness and becoming an advocate."
Defense counsel asked the court to waive the 10-day notice requirement of Penal Code section 1424 so the court could immediately rule on the recusal portion of the defense motion. Under the statute, a motion to disqualify a district attorney from performing an authorized duty must be served on the district attorney and the Attorney General at least 10 court days before the motion is heard. (Pen. Code, § 1424, subd. (a)(1).) The court found good cause to waive the 10-day notice requirement, given that the court was in the middle of trial on the prison priors and the jury was waiting to determine the truth or falsity of the prison prior allegations. --------
The prosecutor opposed the motions on the ground there was no evidence Lee had acted as an advocate in the case; he had only acted as a witness. The prosecutor argued that to the extent Lee gave unresponsive or narrative responses to the prosecutor's questions, defense counsel objected and the court sustained the objections. Lee testified similarly to the way some expert and lay witnesses testify: he attempted to answer questions to the best of his ability and in the way he was most comfortable, even if the questions called for limited or different responses. Additionally, Lee did not indicate his personal thoughts or beliefs in response to any of the prosecutor's questions.
The court denied the alternative motions. The court said it was familiar with the Donaldson case, which it described as "rather outrageous" and involving a prosecutor who testified in the same case she was prosecuting. But here, Lee did not act as trial counsel and was "completely unknown to the jury" or to anyone related to the case. The court acknowledged that Lee's testimony was "pompous" in that Lee answered questions he was not asked, but stated that Lee was "no more pompous than many of the experts" the court had seen testify over the years. Thus, the court concluded that neither Lee nor the prosecutor violated the Rules of Professional Conduct, and there was no good cause to strike Lee's testimony, declare a mistrial, or recuse the district attorney's office from trying the prison priors. The jury later found the two prison prior allegations true.
2. Analysis
Subject to few exceptions not applicable here, rule 5-210 prohibits attorneys, including prosecutors, from acting as both an advocate and a witness in the same trial and before the same trier of fact. (People v. Linton (2013) 56 Cal.4th 1146, 1185.) "The foundations of the prohibition against a lawyer acting as both advocate and witness lie in due process . . . ." (People v. Donaldson, supra, 93 Cal.App.4th at p. 928.) "Within the criminal justice system, the prohibition against a prosecutor's acting as both advocate and witness addresses 'the concern that jurors will be unduly influenced by the prestige and prominence of the prosecutor's office and will base their credibility determinations on improper factors.'" (Id. at pp. 928-929; rule 5.210.)
As Donaldson explained, "'[t]he prohibition against a lawyer serving as advocate and testifying as a witness in the same matter is essentially aimed at eliminating confusion over the lawyer's role. This confusion could prejudice one or more of the parties or call into question the impartiality of the judicial process itself. As an advocate, the lawyer's task is to present the client's case and to test the evidence and arguments put forth by the opposing side. A witness, however, provides sworn testimony concerning facts about which he or she has personal knowledge or expertise. The very fact of a lawyer taking on both roles will affect the way in which a jury evaluates the lawyer's testimony, the lawyer's advocacy, and the fairness of the proceedings themselves.'" (People v. Donaldson, supra, 93 Cal.App.4th at p. 928.)
The abuse-of-discretion standard of review applies to the court's decision whether to strike or allow a witness's testimony (People v. Price (1991) 1 Cal.4th 324, 421), to grant or deny a mistrial (People v. Haskett (1982) 30 Cal.3d 841, 854), and to grant or deny a recusal motion (People v. Eubanks (1996) 14 Cal.4th 580, 594). A mistrial should be granted if the court is apprised of prejudice it judges incurable by admonition or instruction. (People v. Haskett, supra, at p. 854.) A recusal motion should be granted only if there is, in the words of Penal Code section 1424, an actual or apparent "'conflict . . . such as would render'" a fair trial "unlikely." (People v. Eubanks, supra, at pp. 591-594.)
Here, the trial court did not abuse its discretion in denying defendant's alternative motions to (1) strike Lee's testimony, (2) declare a mistrial with prejudice on the prison priors, or (3) recuse the district attorney's office from trying the prison priors. The record supports the court's finding that Lee did not act as trial counsel for the prosecution in any part of the case. Lee only acted as a witness for the prosecution in the bifurcated jury trial on the prison priors. Thus, the court correctly found that Lee did not violate rule 5-210 in testifying for the prosecution.
Indeed, Lee did not offer his personal opinion concerning the truth of the prison prior allegations. Nor did he invoke the prestige of the district attorney's office in testifying for the prosecution. He simply testified based on his experience that the two case files showed defendant was the person who suffered the alleged convictions in 2014 and 2015; that defendant was sentenced to prison on the same dates he suffered the convictions; and that the prison priors were true because defendant did not remain free of custody for five years following each prison commitment. Lee's testimony was proper. There is no reasonable likelihood that the jury credited Lee's testimony on the basis of improper factors, such as his role as a prosecutor and advocate in other cases. (See generally People v. Frye (1998) 18 Cal.4th 894, 1026-1027 [record showed no reasonable likelihood the jury erroneously considered a mitigating factor as an aggravating circumstance].)
Defendant maintains that Lee's testimony was erroneously admitted because the prosecutor did not show there were no alternatives to using Lee's testimony to prove that defendant was the person who suffered the two alleged prior convictions. As defendant points out, "'[o]nly in extraordinary circumstances should an attorney in an action be called as a witness, and before the attorney is called, [the party who seeks to call the witness] has an obligation to demonstrate that there is no other source for the evidence he seeks.'" (People v. Linton, supra, 56 Cal.4th at p. 1186.) Other witnesses and documentary evidence are alternative sources. (See People v. Dunkle (2005) 36 Cal.4th 861, 915, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) This argument fails because the record supports the court's finding that Lee did not act as an attorney in the case. For this reason, the prosecutor was not required to show there were no alternatives to Lee's testimony. B. The Upper Term of Three Years Was Properly Imposed on Count 1
Defendant claims the matter must be remanded for resentencing because the court imposed the upper term of three years on the felony evading conviction in count 1, based upon the court's erroneous belief that defendant had "an alcohol addiction," as opposed to defendant's admitted "drug addiction." We find no prejudicial error.
1. Relevant Background
At the beginning of the sentencing hearing, the court acknowledged its receipt of the probation report, filed on October 6, 2016. Defense counsel said he disagreed with the probation report's statement that there were no circumstances in mitigation concerning defendant's felony evading conviction in count 1. (Cal. Rules of Court, rule 4.423.)
Counsel urged the court to consider defendant's 20-year methamphetamine addiction, noted in the probation report, as a circumstance in mitigation, justifying either probation or the low term of 16 months on count 1. Counsel pointed out that, during his probation interview, defendant talked about his drug use both at the time he committed the current offense and earlier that day. During his probation interview, defendant said he needed help for his "drug addiction," and the court accepted defense counsel's representation that defendant had recently been admitted into a drug treatment program. The court denied probation, finding defendant's prior performance on parole was unsatisfactory, and imprisonment would not seriously affect defendant.
In imposing the upper term on count 1, the court found as factors in aggravation that defendant's prior adult convictions were numerous and had increased in seriousness, and that his conduct in his current felony evading offense "was fairly egregious given the manner of his driving and the location of his driving." (Cal. Rules of Court, rule 4.421(b)(2), (b)(5).) The court expressly found that defendant's "alcohol addiction" was a mitigating factor (Cal. Rules of Court, rule 4.423(b)(2)), but also found that the factors in aggravation "outweigh[ed] the alcohol addiction issue" and imposed the upper term of three years in state prison on count 1. (Italics added.)
2. Analysis
A defendant is entitled to be sentenced based on the sentencing court's "'informed discretion'" and "[a] court which is unaware of the scope of its discretionary powers can no more exercise that 'informed discretion' than one whose sentence is or may have been based on misinformation regarding a material aspect of a defendant's record." (People v. Belmontes (1983) 34 Cal.3d 335, 348, fn. 8) In such cases, the "appropriate remedy" is to remand for resentencing "unless the record 'clearly indicate[s]' that the [sentencing] court would have reached the same conclusion" had the court been aware of the scope of its sentencing discretion. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
Here, remand for resentencing is unwarranted because the record clearly indicates that the sentencing court did not select the upper term based on any misunderstanding that defendant had an "alcohol addiction" as opposed to defendant's undisputed "drug addiction." Rather, the record clearly indicates that the court simply misspoke when it used the phrase "alcohol addiction" rather than "drug addiction."
The court had just presided over the trial in which the evidence showed defendant was in possession of methamphetamine. The probation report also indicated that defendant was under the influence of methamphetamine at the time of his arrest on the felony evading charge, and defendant had two prior convictions for possessing a controlled substance for sale. In addition, defense counsel had just urged the court to consider defendant's 20-year history of using methamphetamine as a factor in mitigation, and the court did exactly that, but concluded the mitigating factor was outweighed by the factors in aggravation.
Based on the numerous references to drugs in the probation report, the fact the court had just presided over defendant's trial which involved defendant's possession of methamphetamine, and the fact defense counsel had just repeatedly told the court that defendant's "drug addiction history" was a mitigating factor, it is clear the court knew defendant had a drug addiction rather than an alcohol addiction. It also appears that the court's mistaken reference to defendant's "alcohol addiction" may have been based on defense counsel's reference to People v. Simpson (1979) 90 Cal.App.3d 919, a case defense counsel described as "involving somebody who was an alcoholic."
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. MILLER
J.