Opinion
B227151
12-13-2011
THE PEOPLE, Plaintiff and Respondent, v. TONY BERNARD INGRAM, Defendant and Appellant.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. YA074573)
APPEAL from a judgment of the Superior Court of Los Angeles County, John V. Meigs, Judge. Affirmed.
Benjamin Owens, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Scott A. Taryle and Tannaz Kouhpainezhad, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Defendant Tony Bernard Ingram appeals from a judgment of conviction entered after a jury trial. In the initial trial, the jury was unable to reach a verdict and the court declared a mistrial. In the second trial, the jury found defendant guilty of second degree commercial burglary (Pen. Code, § 459) and defendant was sentenced to 16 months in state prison. We affirm.
FACTS
At approximately 11:30 p.m., on March 18, 2009, Hector Guerrero (Guerrero), Hollywood Park Race Track's security supervisor, checked the money room and noticed the door was slightly ajar. He entered the doors and heard "clanging" noises coming from the main money room. Guerrero saw defendant in the corner of the room moving around. Guerrero ordered defendant on the ground. After a few seconds, defendant tried to leave, but the door was locked. Guerrero noticed that one of the money carts' locks was on the ground.
The money room is where the day's proceeds get counted and where the majority of the money that is used at the race track is kept.
Defendant was wearing a black beanie and carrying a bag containing bolt cutters, a flathead screwdriver, gloves, a black scarf and a terry cloth rag. In his pocket, he had a six-inch nail.
Guerrero indicated that the general public did not have access to the money room and a person would have to go through at least three doorways to get to the money room. He would need a key to get past the "mutual line" or would have to "vault" over a waist-high counter to get into the area that led to the money room.
On March 19, 2009, Sherry Hyson (Hyson), Captain of Security at Hollywood Park, examined the money room. Hyson found one lock on a shelf with a shank cut on it, one lock on the floor near a money cart, and a set of keys in a trash can near the money room.
DISCUSSION
Defendant contends that the trial court punished him for exercising his constitutional right to a jury trial when it sentenced him to state prison. We disagree.
After defendant's first trial ended with a hung jury, the trial court indicated that it would accept a plea to a misdemeanor if the prosecution would offer it. If not, the court would accept an "open plea" with the understanding that defendant would receive probation and the ability to earn a reduction to a misdemeanor. The prosecution was not willing to accept a plea to a misdemeanor and defendant was not willing to enter an open plea.
In the second trial, defendant was convicted and probation was denied. He was sentenced to the low term in state prison of 16 months. At the time of sentencing, defendant's counsel requested a probation sentence. In sentencing defendant to prison, the trial court stated:
"The crime required planning, sophistication, and a lot of chutzpah to enter a place where they have security and cameras and with the strong possibility that you would be detected, and to still go forward is something that makes me believe that [defendant] was something other than a person who took a wrong turn.
"I had indicated previously that rather than going through another trial if [defendant] wanted to take the court's proposed offer that he would have the ability to earn a misdemeanor. He chose not to do that.
"And you talk about him being remorseful, well, someone who is remorseful and had begun rehabilitation, the first step to rehabilitation is to admit your wrongdoing which is something that was never done. He hasn't provided any information about how he obtained keys, who was involved in helping him commit this crime, none of that. And if nothing else, his going to prison will be a deterrent to the people that he was involved with to let them know that you can't do this sort of thing and expect to be caught and then the ability to earn a misdemeanor.
"So I'm going to follow [the prosecutor's] recommendation in this case and impose the low term of state prison."
After the court gave its indicated sentence, defendant was able to address the court. After defendant's comments, the trial court imposed the low term and stated as follows:
"I haven't seen any remorse. I haven't seen any rehabilitation. I don't buy that 'I just happened to walk through a couple of doors and found myself in a money room.' I mean I've been living in Los Angeles for 63 years, I have absolutely no idea in the world of where the money room is in Hollywood Park. So to tell me that there's no planning or sophistication, I just happened to wander around and rather a black bag I had a green bag, doesn't show me remorse, it doesn't show me rehabilitation. It really shows me that [defendant] is unhappy that he's being
"And you're not being sentenced for causing the court time or the people of the state money, you're being sentenced for committing a burglary at Hollywood Park Race Track. The law provides a sentence of up to three years in state prison for that crime. In this case the People only asked for the low term. Normally, we would give the midterm which is two years. I'm following the People's recommendation and going with the low term.
"But [defendant], this is something that you brought on yourself. No one picked you up and drug you into the money room at Hollywood Park away from your family in the middle of the night. You chose to go there and to commit this crime. The jury of your peers has convicted you of the crime and your sentence is for the crime, it's not for anything else.
"You certainly have a right to go to trial, and I will never punish anyone for exerting their constitutional right to have a trial by a jury. And in this case the jury found you guilty, and I'm imposing the punishment that's provided for by the law, which I believe is appropriate given the information that I heard presented in this courtroom during the course of the two trials."
Initially, the People submit that defendant's claim is forfeited because he failed to object to the sentence in the trial court. "[T]he right to challenge a criminal sentence on appeal is not unrestricted. In order to encourage prompt detection and correction of error, . . . reviewing courts have required parties to raise certain issues at the time of sentencing. In such cases, lack of a timely and meaningful objection forfeits or waives the claim. [Citations.]" (People v. Scott (1994) 9 Cal.4th 331, 351.)
Defendant failed to object to the 16-month sentence. At the time of sentencing, he did not raise the issue of the trial court retaliating against him for exercising his constitutional right to a jury trial. Regardless, the trial court did not abuse its discretion or violate defendant's due process rights in imposing the 16-month sentence after he was convicted by the jury in his second trial.
The trial court has broad discretion in determining an appropriate sentence and "its sentencing decision will be subject to review for abuse of discretion. [Citations.]" (People v. Sandoval (2007) 41 Cal.4th 825, 847.) The right to a jury trial is a fundamental constitutional right. (U.S. Const., 6th & 14th Amendments; Cal. Const., art I, § 16; Duncan v. Louisiana (1968) 391 U.S. 145, 149 [88 S.Ct. 1444, 20 L.Ed.2d 491]; People v. Collins (2001) 26 Cal.4th 297, 304.) It is a due process violation to punish a person for exercising a constitutional right. (In re Lewallen (1979) 23 Cal.3d 274, 278.) The fact that a defendant receives a more severe sentence after being found guilty by a jury than he would have if he accepted a plea offer does not warrant an inference that the defendant was penalized for exercising his constitutional right to a jury trial. (People v. Szeto (1981) 29 Cal.3d 20, 35.)
In In re Lewallan, supra, the conviction was reversed when several remarks of the trial judge during sentencing established that he had been improperly influenced by defendant's refusal of a proffered plea bargain and his insistence on his right to a jury trial. The trial court, when asked about the possibility of informal probation, said, "'You mean whether or not there's a disposition or not after a jury trial?'" (In re Lewallan, supra, 23 Cal.3d at p. 277.) The court also said there was no reason for the prosecutor to negotiate '"if after the defendant refuses a negotiation he gets the same sentence . . . . It is just a waste of everybody's time . . . . And as far as I'm concerned, if a defendant wants a jury trial and he's convicted, he's not going to be penalized with that, but on the other hand he's not going to have the consideration he would have had if there was a plea.'" (Ibid.) The court stated that the trial judge's comments at sentencing clearly revealed that he gave consideration to defendant's election to plead not guilty in imposing sentence. (Id. at p. 279.) Lewellan also is clear that "a trial court's discretion in imposing sentence is in no way limited by the terms of any negotiated pleas or sentences offered the defendant by the prosecution." (Id. at p. 281.)
United States v. Goodwin (1982) 457 U.S. 368 [102 S.Ct. 2485, 73 L.Ed.2d 74], primarily relied upon by defendant, is distinguishable. The court found that the presumption of prosecutorial vindictiveness was not warranted when defendant was indicted and convicted of a felony charge arising from the same incident as previously pending misdemeanor charges after defendant decided not to plead guilty and requested a trial by jury on the misdemeanor charges. There was no actual evidence of vindictiveness and no due process violation. (Id. at p. 373.) While a "prosecutor may forego legitimate charges already brought in an effort to save . . . time and expense of trial, a prosecutor may file additional charges if an initial expectation that a defendant would plead guilty to lesser charges proves unfounded." (Id. at p. 380, fn. omitted.)
In the instant case, there was no evidence that the trial court was being vindictive when it imposed its sentence. The court specifically stated that it was not punishing defendant for exercising his right to a jury trial, but for committing the commercial burglary and the fact that the crime involved planning, sophistication, and "chutzpah." To the contrary, the trial court did indicate that the midterm of two years would have been appropriate, but it only sentenced defendant to the low term of 16 months since the People asked for the low term.
While it certainly would be an abuse of discretion and a violation of the law to punish a defendant for exercising his constitutional right to go to trial, there is no evidence in the record that the trial court was being vindictive in imposing its sentence. Defendant had an opportunity to accept a reduced sentence. He elected to go to trial. He was found guilty and the trial court, in its discretion, imposed a lawful sentence.
DISPOSITION
The judgment is affirmed.
JACKSON, J. We concur:
WOODS, Acting P. J.
ZELON, J.