Opinion
NOT TO BE PUBLISHED
Super. Ct. No. SF106080A
RAYE, J.Defendant Patrick Odonald Jackson was tried by jury and found guilty of second degree robbery. (Pen. Code, § 211.) In a bifurcated hearing, the trial court found that defendant previously had been convicted of assault with a firearm (§ 245, subd. (a)), a serious felony within the meaning of section 667, subdivision (a), as well as a “strike” conviction within the meaning of the “three strikes” law. The trial court also found that defendant served a prior prison term within the meaning of section 667.5, subdivision (b). The trial court sentenced defendant to 11 years in state prison and imposed other orders.
All further statutory references are to the Penal Code.
On appeal, defendant alleges several instructional errors, asserts that the trial court prejudicially abused its discretion by allowing the prosecutor to engage in misconduct, and claims that an unlawful sentence was imposed because the trial court imposed and then stayed a one-year sentence enhancement for defendant’s prior prison term. We disagree with each contention and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The People’s Case
On a September night in 2007, just after midnight, Laura Orsua was returning to her room at the Crest Motel in Stockton, California. Orsua testified that as she opened her door, defendant came up from behind and “forced his way” into the room by throwing Orsua to the floor. As she was getting to her feet, a friend by the name of Kirby Wyrick called her cell phone. Orsua answered the call and exclaimed: “Kirby, help me. Help me.” Defendant responded: “Who the hell you talking to? Give me that phone.” As Orsua and defendant struggled for control of the phone, he grabbed her by the hair and threw her into a wall. Orsua released the phone. At this point, Orsua heard someone yelling her name from outside the room. Defendant departed with the phone and the following warning: “You better shut up before I fucking really hurt you.”
According to Orsua’s testimony, shortly after defendant left the room, she also departed and headed toward the front of the motel. When she got outside, she saw Wyrick standing in front of defendant. The two men “had words.” Defendant told Wyrick to “mind his own business.” Wyrick walked away from defendant and followed Orsua toward the front of the motel. Instead of taking this opportunity to depart, defendant followed, grabbing Wyrick and punching him several times. Defendant continued the assault even after Wyrick fell to the ground. At this point, Orsua and a friend who also lived in the motel, Jennifer Glaser, tried to push defendant away from Wyrick. Defendant pulled a “knife or screwdriver” out of his jacket. A third woman then opened the door to Glaser’s motel room, and Orsua and Wyrick went inside. As Orsua was entering the room, she saw defendant hit Glaser before he “took off running.”
Jennifer Glaser testified that she entered the story when she heard “yelling and screaming” and what “sounded like a rag doll being thrown around the room” coming from Orsua’s motel room. Orsua’s front room window previously had been broken, so Glaser could hear the confrontation clearly through the open window. Glaser then went to Orsua’s door and heard a male voice saying: “Who is this Kirby [Wyrick] dude? Who is this white dude? What’s he got? I’m going to get him. I’m going to rob his ass. Where’s he at?” Wyrick and Glaser were friends, so Glaser spoke up loudly through the open window: “That’s what you are not going to do.” Defendant then opened the door and confronted Glaser, demanding: “What the fuck you going to do, white bitch?” Glaser turned around and returned to her room. Before she was able to get inside, she saw Wyrick approaching from across the street. At this point, Orsua was still in her room.
Glaser again emerged from her room and saw defendant punching Wyrick. Orsua was outside of her room trying to break up the fight; Glaser also tried to pull defendant off of Wyrick. Defendant then pulled “something shiny” out of his jacket and said: “I’ll show you what I do to a white bitch like you. I’ll kill a bitch like you.” While Glaser did not get a good look at the object, she believed it was a knife. Defendant then grabbed Glaser’s hair, pulled her head back, and stabbed her in the roof of the mouth. Glaser fell to the ground; defendant left the scene.
Officers of the Stockton Police Department arrived within five minutes. Officers Michael Otten and Marcus Davenport were dispatched to the scene. Officer Otten testified that he received a description of the suspect over the radio, and that he was exiting the Crest Motel parking lot on foot when he “saw a subject matching the description” approximately half a block from the motel, walking southbound on Sierra Nevada Street toward Park Street. The subject made a right turn onto Park Street, walking away from Officer Otten, passed a row of bushes, stepped over a small fence, and lay down on the ground behind a house. Officer Otten pursued and ordered the subject off of the ground while Officer Davenport placed him in handcuffs.
A screwdriver was found in the bushes the subject passed before he hid in the yard. A black jacket was found on the ground next to the subject; a search of the jacket revealed a Metro PCS cell phone. The subject was identified as defendant. The phone recovered from defendant was identified as the phone taken from Orsua at the motel.
The Defense Case
Defendant testified that he purchased the cell phone for $20 from a man named Danny. The transaction took place at the Chevron gas station two or three blocks from the Crest Motel. Defendant acknowledged that the phone was possibly stolen. According to defendant, he was walking back to the motel to visit a friend when he was confronted by Orsua at the intersection of Wilson Way and Park Street. Despite the facts that Orsua and defendant did not know each other and that she never saw the phone in defendant’s possession because he had the phone in his pocket the entire time, somehow Orsua knew that defendant had her phone. After a brief “heated” conversation regarding the phone, defendant walked away. A short time later, defendant was apprehended while lying on the ground “avoiding police.” Defendant believed he had outstanding traffic warrants, so when he spotted the police, he stepped over a short fence into someone’s yard and lay down on the ground.
Procedural Overview
Defendant was charged by amended information with attempted murder (§§ 664/187), first degree burglary (§ 459), assault by use of force likely to cause great bodily injury (§ 245, subd. (a)(1)), and second degree robbery (§ 211). The information also alleged defendant had previously been convicted of assault with a firearm (§ 245, subd. (a)), a serious felony within the meaning of section 667, subdivision (a), as well as a strike conviction within the meaning of the three strikes law, and that defendant served a prior prison term within the meaning of section 667.5, subdivision (b). A jury convicted defendant of second degree robbery and acquitted him on the remaining counts. Following a bifurcated hearing, the trial court found the enhancement allegations to be true; sentenced him to 11 years in state prison (middle term of three years on the robbery, doubled pursuant to the three strikes law, plus five years for the prior serious felony enhancement); and imposed other orders.
DISCUSSION
I
Defendant’s first contention on appeal is that the trial court prejudicially erred by failing to instruct the jury sua sponte on the defense of claim of right pursuant to Judicial Council of California Criminal Jury Instructions (2007-2008), CALCRIM No. 1863. Specifically, defendant asserts that his conviction must be reversed because the “evidence at trial indicated that [he] believed he was the owner of the cell phone,” which supported “an absolute defense of claim of right against the charge of robbery” and triggered the trial court’s sua sponte duty to instruct on the defense. We disagree.
CALCRIM No. 1863 provides, in relevant part: “If the defendant obtained property under a claim of right, (he/she) did not have the intent required for the crime of (theft/[or] robbery). [¶] The defendant obtained property under a claim of right if (he/she) believed in good faith that (he/she) had a right to the specific property or a specific amount of money, and (he/she) openly took it. [¶] In deciding whether the defendant believed that (he/she) had a right to the property and whether (he/she) held that belief in good faith, consider all the facts known to (him/her) at the time (he/she) obtained the property, along with all the other evidence in the case. The defendant may hold a belief in good faith even if the belief is mistaken or unreasonable. But if the defendant was aware of facts that made that belief completely unreasonable, you may conclude that the belief was not held in good faith. [¶] [The claim-of-right defense does not apply if the defendant attempted to conceal the taking at the time it occurred or after the taking was discovered.] [¶]... [¶] [The claim-of-right defense does not apply if the claim arose from an activity commonly known to be illegal or known by the defendant to be illegal.]”
The trial court has a sua sponte duty to instruct on a defense only where there is substantial evidence to support the defense and the defense is not inconsistent with the defendant’s theory of the case. (People v. Felix (2001) 92 Cal.App.4th 905, 911 (Felix); People v. Breverman (1998) 19 Cal.4th 142, 157 (Breverman).) “The claim-of-right defense provides that a defendant’s good faith belief, even if mistakenly held, that he has a right or claim to property he takes from another negates the felonious intent necessary for conviction of theft or robbery.” (People v. Tufunga (1999) 21 Cal.4th 935, 938 (Tufunga).)
“‘[A] trial court is not required to instruct on a claim-of-right defense unless there is evidence to support an inference that [the defendant] acted with a subjective belief he or she had a lawful claim on the property.’ [Citations.]” (Tufunga, supra, 21 Cal.4th at p. 944.) “Whether or not the evidence provides the necessary support for drawing that particular inference is a question of law. [Citation.] Although a trial court should not measure the substantiality of the evidence by undertaking to weigh the credibility of the witnesses, the court need not give the requested instruction where the supporting evidence is minimal and insubstantial.” (People v. Barnett (1998) 17 Cal.4th 1044, 1145, fn. omitted.)
Applying the foregoing rules, we conclude there was no substantial evidence supporting the inference that defendant openly took Orsua’s cell phone with the subjective belief he had a lawful claim on the phone. First, the claim-of-right defense is inconsistent with defendant’s theory of the case. Defendant testified unequivocally that he did not take Orsua’s cell phone. According to defendant’s theory of the case, he bought the phone from a man named Danny for $20 and had absolutely nothing to do with the robbery at the Crest Motel. Because defendant’s theory of the case, that he did not openly take the phone from Orsua, is inconsistent with the defense of claim of right, the trial court was not obligated to instruct on the defense. (Felix, supra, 92 Cal.App.4th at p. 911; Breverman, supra, 19 Cal.4th at p. 157.) Second, the claim-of-right defense does not apply where the defendant attempts to conceal the taking at the time it occurred or after the taking was discovered. (People v. Wooten (1996) 44 Cal.App.4th 1834, 1848-1849.) By defendant’s own account, he had the phone concealed in his jacket when Orsua confronted him on the street. He also attempted to conceal the fact that he had the phone on his person when confronted by police by removing the jacket containing the phone before lying on the ground in the backyard.
The trial court was under no duty to instruct the jury on the claim-of-right defense.
II
Defendant’s next contention is that the trial court prejudicially erred by failing to instruct the jury sua sponte on the crime of theft as a lesser-included offense of robbery. Again, we disagree.
“‘It is well settled that the trial court is obligated to instruct on necessarily included offenses -- even without a request -- when the evidence raises a question as to whether all of the elements of the charged offense are present and there is evidence that would justify a conviction of such a lesser offense.’ [Citation.]” (People v. Ledesma (2006) 39 Cal.4th 641, 715.) However, “[a] criminal defendant is entitled to an instruction on a lesser included offense only if [citation] ‘there is evidence which, if accepted by the trier of fact, would absolve [the] defendant from guilt of the greater offense’ [citation] but not the lesser. [Citations.]” (People v. Memro (1995) 11 Cal.4th 786, 871; see People v. Barton (1995) 12 Cal.4th 186, 194-195; see also People v. Berry (1976) 18 Cal.3d 509, 518-519; People v. McCoy (1944) 25 Cal.2d 177, 187-188; People v. Lesnick (1987) 189 Cal.App.3d 637, 642-643; People v. Chambers (1982) 136 Cal.App.3d 444, 455-456; People v. Ellers (1980) 108 Cal.App.3d 943, 954.)
“Theft is a lesser included offense of robbery, which includes the additional element of force or fear.” (People v. Melton (1988) 44 Cal.3d 713, 746.) Accordingly, the trial court had a sua sponte duty to instruct the jury on theft as a lesser included offense to robbery if, and only if, there is evidence in the record that would have allowed the jury to conclude defendant feloniously took and carried away Orsua’s cell phone with the intent to permanently deprive her of its use, but did not do so by means of force or fear.
Here, again, defendant’s theory of the case was that he bought the phone from a man named Danny for $20 and did not feloniously take or carry away the phone. Orsua’s account, largely corroborated by Glaser’s testimony, places defendant in her motel room accomplishing the felonious taking and carrying away by means of force. Defendant has pointed to no evidence in the record that would have allowed the jury to find he took and carried away the phone, but did not do so by force or fear. He either did so by force, or not at all. Accordingly, defendant was not entitled to an instruction on the lesser included offense of theft. (See People v. Salas (1978) 77 Cal.App.3d 600, 607-608.)
III
Defendant further contends the trial court erred in instructing the jury on defendant’s flight pursuant to CALCRIM No. 372. We begin by noting that defendant did not object to this instruction at trial. “Failure to object to instructional error forfeits the issue on appeal unless the error affects defendant’s substantial rights. [Citations.] The question is whether the error resulted in a miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818 [299 P.2d 243]. [Citation.]” (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) We find no error.
CALCRIM No. 372, as given to the jury, provides: “If the defendant fled immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”
Section 1127c provides: “In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.”
“[A] flight instruction ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’ [Citation.] ‘“[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.”’ [Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
Defendant’s assertion that “[t]here was no evidence of ‘flight’ presented to the jury” ignores the record. Orsua testified that after defendant robbed her in her motel room and assaulted both Wyrick and Glaser, he “took off running.” Glaser testified that after defendant pulled her head back and stabbed her in the roof of the mouth, he “start[ed] to leave the spot, shake the spot basically.” Minutes later, defendant was “avoiding police” by walking away from Officer Otten, stepping over a small fence, and lying down on the ground behind a house. From this evidence, the jury could have reasonably concluded that defendant departed under circumstances suggesting that his movement was motivated by a consciousness of guilt. (People v. Jackson (1996) 13 Cal.4th 1164, 1226 [jury entitled to reasonably infer consciousness of guilt from the fact that the defendant “ran from the scene of the murder down the street to the car”].)
Nor did the giving of a flight instruction in this case violate defendant’s due process rights. Contrary to defendant’s position, our Supreme Court has definitively ruled in People v. Mendoza (2000) 24 Cal.4th 130, 180 that “‘[a] permissive inference violates the Due Process Clause only if the suggested conclusion is not one that reason and common sense justify in light of the proven facts before the jury. [Citation.]’ [Citations.] This test permits a jury to infer, if it so chooses, that the flight of a defendant immediately after the commission of a crime indicates a consciousness of guilt.” We will not belabor the point.
IV
Defendant also claims the trial court committed prejudicial error by allowing the district attorney to engage in misconduct during his closing argument. Not so.
Additional Background
During his closing argument, defense counsel told the jury he had written down 36 examples of reasonable doubt drawn from the evidence presented at trial and thought of two additional examples while speaking. After arguing each of the 38 points, defense counsel explained to the jury that he was going to leave his notes on the podium in order for the district attorney to “address them or not.” Defense counsel then challenged the jury to listen to the district attorney’s rebuttal and decide whether he had provided “solid, substantive answers” to each of the 38 examples of purported reasonable doubt raised in defense counsel’s closing argument.
The district attorney responded with the following: “Defense left me this stuff here to respond to, (threw away paperwork), that’s my response. I’ll tell you why, that’s what a criminal defense attorney does, nitpicks until the world is over. Life is not that simple.” Defense counsel objected “as misconduct as appealing to passion and characterization of the defense attorneys in general.” The trial court responded: “I think it’s a little close. You might want to rephrase that.” The district attorney clarified: “You put two people together in the same room, to witness the same event and you’re going to get some inconsistencies.” He then went on to address many of the points raised by defense counsel’s closing.
Analysis
“A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.” (People v. Hill (1998) 17 Cal.4th 800, 832.) “It is generally improper for the prosecutor to accuse defense counsel of fabricating a defense [citations], or to imply that counsel is free to deceive the jury [citation]. Such attacks on counsel’s credibility risk focusing the jury’s attention on irrelevant matters and diverting the prosecution from its proper role of commenting on the evidence and drawing reasonable inferences therefrom. [Citation.] [¶] Nevertheless, the prosecutor has wide latitude in describing the deficiencies in opposing counsel’s tactics and factual account. [Citations.]” (People v. Bemore (2000) 22 Cal.4th 809, 846 (Bemore).) “Although the prosecution may not attack defense counsel’s integrity, it may... vigorously attack the defense case and argument if that attack is based on the evidence.” (People v. Hillhouse (2002) 27 Cal.4th 469, 502.) “An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper.” (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.) Similarly, “remarks [that] simply point[ ] out that attorneys are schooled in the art of persuasion... [do] not improperly imply that defense counsel [is] lying.” (People v. Gionis (1995) 9 Cal.4th 1196, 1216 (Gionis).)
We disagree with defendant that the single statement made by the district attorney in this case (“that’s what a criminal defense attorney does, nitpicks until the world is over”) in any way implied “dishonesty” on the part of defense counsel. If anything, the statement asserts that defense counsel meticulously scoured through the testimony of the People’s witnesses to find every conceivable inconsistency, however slight or immaterial. (See Merriam-Webster’s Collegiate Dict. (11th ed. 2006) p. 838, col. 2 [nit-picking: “minute and usu. unjustified criticism”].)
Reviewing courts have found remarks more egregious than those uttered by the district attorney in this case “not [to] exceed the bounds of permissible vigor.” (Gionis, supra, 9 Cal.4th at pp. 1217-1218 [“‘[Defense counsel]’s just doing his job’”; “‘[h]is job is to... get him off’”]; People v. Breaux (1991) 1 Cal.4th 281, 305-306 [referring to defense argument, “[i]f you don’t have [the law or the facts] on your side, try to create some sort of a confusion”]; People v. Goldberg (1984) 161 Cal.App.3d 170, 190 [defense counsel’s “job” is to confuse the jury about the issues].) In short, the challenged remarks of the district attorney in this case were within the “wide latitude [allowed to counsel] in describing the deficiencies in opposing counsel’s tactics and factual account.” (Bemore, supra, 22 Cal.4th at p. 846.) They did not constitute misconduct.
V
Defendant’s final contention on appeal is that the trial court imposed an unlawful sentence when it imposed and then stayed a one-year sentence enhancement for defendant’s prior prison term. The Attorney General concedes the point. We do not accept this concession.
Defendant relies on People v. Jones (1993) 5 Cal.4th 1142 (Jones), in which the trial court imposed and then executed a five-year prior serious felony enhancement under section 667, subdivision (a) and a one-year prior prison term enhancement under section 667.5, subdivision (b). (Jones, at p. 1145.) Our Supreme Court held that “when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply.” (Jones, at p. 1150.) The court remanded “with directions to strike the one-year enhancement.” (Id. at p. 1153.)
However, as the Fourth District Court of Appeal pointed out in People v. Lopez (2004) 119 Cal.App.4th 355 (Lopez): “Jones... did not actually discuss whether striking the unused enhancement finding was the appropriate remedy. As the Supreme Court has often reminded us, ‘cases are not authority for propositions not considered. [Citations.]’ [Citation.] Moreover, it is not at all clear whether the court intended to strike the enhancement finding or the punishment for the enhancement. Since the trial court had sentenced the defendant to a separate and consecutive term for each enhancement, certainly the court had to do something to eliminate the excess punishment. Thus, Jones is not authority for the proposition that an unused enhancement finding must be stricken.” (Id. at p. 364.) The court then quoted rule 4.447 of the California Rules of Court [“‘No finding of an enhancement shall be stricken or dismissed because imposition of the term is either prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge shall impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and shall thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit’”] and concluded that “[t]he correct procedure would have been to impose a sentence on the barred enhancement, but then stay execution of that sentence.” (Lopez, at p. 364.)
We agree with our colleagues at the Fourth District. Indeed, the conclusion reached in Lopez is perfectly consistent with the recent decision of our Supreme Court in People v. Gonzalez (2008) 43 Cal.4th 1118 (Gonzalez). Gonzalez involved multiple firearm enhancements, only one of which could be “imposed” under the statutory scheme. Our Supreme Court held that “after a trial court imposes punishment for the section 12022.53 firearm enhancement with the longest term of imprisonment [as required by the statute], the remaining section 12022.53 firearm enhancements and any section 12022.5 firearm enhancements that were found true for the same crime must be imposed and then stayed.” (Gonzalez, at p. 1123.)
In so holding, the Supreme Court reversed a decision of this court in which we concluded that the remaining firearm enhancements, as well as their findings, had to be stricken, rather than imposed and then stayed. (Gonzalez, supra, 43 Cal.4th at p. 1124.) We concluded that because only the enhancement with the longest term of imprisonment may be “imposed” under section 12022.53, it was error to impose and then stay the remaining enhancements; such enhancements should have been stricken. In so concluding, we failed to understand the meaning of the word “impose” as it applies to sentence enhancements: “[I]t is important to understand that the word ‘impose’ applies to enhancements that are ‘imposed and then executed’ as well as ones that are ‘imposed and then stayed. However, as a practical matter, the word “impose” is often employed as shorthand to refer to the first situation, while the word “stay” often refers to the latter.’ [Citation.]” (Gonzalez, at p. 1125.) We erroneously “interpreted the word ‘imposed’ in that portion of subdivision (f) [of section 12022.53] as encompassing both meanings of ‘impose,’ namely, impose and then execute, as well as impose and then stay.” (Gonzalez, at p. 1126.) Instead, as the court explained, subdivision (f) “directs that only one enhancement may be imposed and then executed per person for each crime, and allows a trial court to impose and then stay all other prohibited enhancements.” (Gonzalez, at p. 1127.)
In this case, we agree with defendant that “when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply.” (Jones, supra, 5 Cal.4th at p. 1150.) Accordingly, the trial court must impose and then execute a five-year enhancement for the prior serious felony conviction, and may not impose and then execute a one-year enhancement for the prior prison term served in connection with that conviction. However, as the trial court cannot strike or dismiss the enhancement finding (Cal. Rules of Court, rule 4.447), the appropriate procedure is to impose and then execute the five-year enhancement under section 667, subdivision (a) and then to impose and then stay the one-year enhancement under section 667.5, subdivision (b). As this is precisely what the trial court did in this case, we find no error.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, Acting P.J., CANTIL-SAKAUYE, J.