Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FSB044381. Duke D. Rouse, Judge. (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
William D. Farber, 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, Theodore Cropley and Eric A. Swenson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, Acting P.J.
A jury convicted defendant and appellant Christopher David James of one count of first degree burglary. (Pen. Code, § 459, count 1.) A trial court found true the allegations that defendant had suffered two prior strike convictions (§§ 1170.12, subds. (a)-(d), 667, subd. (b)-(i)), two serious felony convictions (§ 667, subd. (a)(1)), and served two prior prison terms (§ 667.5, subd. (a)). Subsequently, the court suspended criminal proceedings after defense counsel expressed a doubt as to defendant’s mental competence. A “medical commission” was appointed by the court. Defendant was evaluated by Dr. Teresa M. Fisher. Based on Dr. Fisher’s report, the court found defendant competent. The court reinstated criminal proceedings and sentenced defendant to 25 years to life on count 1, plus two consecutive five-year enhancements pursuant to section 667, subdivision (a)(1). The court stayed the sentences on the section 667.5, subdivision (a), prison priors under section 654.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends that the court erred in: 1) failing to instruct the jury on unanimity; 2) sentencing defendant to two consecutive five-year enhancements pursuant to section 667, subdivision (a)(1); and 3) denying his Romero motion. The People concede, and we agree that the court erred in sentencing defendant to two enhancements under section 667, subdivision (a)(1). Otherwise, we affirm.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
FACTUAL BACKGROUND
Around midnight on May 21, 2004, Jane Doe, who was 16 years old at the time, was sleeping in her bed with her niece. She heard the bedroom door open and awoke to see someone standing in the dark, holding a lighter. He turned the lighter off, stepped into the bedroom, and closed the door behind him. Doe initially thought it was her brother, who occupied the adjacent bedroom. The man walked over and stood next to Doe’s bed. He then started to unbuckle his belt and take off his pants. Doe screamed and yelled at him to leave, so the man stopped and walked out of the room. The man, who was later identified as defendant, walked back through the kitchen and out of the house.
Doe’s sister was asleep and woke up when she heard dogs barking. She got up, looked out the window, and saw that the passenger side door of the family’s van was open. She alerted her family and then went outside. Her father and brother followed her to the van. Once they got near the van, Doe’s sister saw defendant pull himself out of the van. He turned around and pointed a “red pen light” at them. Doe’s father asked defendant what he was doing, and he said he was looking for “spare change.” As they called the police, defendant began walking down the street. Doe’s father and brother followed him to the Wooden Nickel bar, which was two blocks away. Defendant went to the back of the bar and sat down on the rear steps. Doe’s father waited in front of the bar and flagged a police officer down.
Deputy Runstrom was the responding police officer. He went to the back of the bar and found defendant still sitting on the steps. As Deputy Runstrom began to perform a patdown search, defendant stood up. Deputy Runstrom noticed a blue string hanging out of defendant’s pants, where the zipper was located. Deputy Runstrom searched defendant and found a lighter in his front pants pocket. Defendant smelled slightly of alcohol, and his balance “seemed to be off.”
At trial, Doe testified that she had seen defendant walking up and down her street before and that he lived nearby. She had also seen him at a liquor store, which is one block from her house. Doe’s sister had seen defendant two times before this incident. The first time, she was coming out of her driveway, and defendant told her she had a “nice pretty white car.” The second time, defendant was walking on the street.
ANALYSIS
I. No Unanimity Instruction Was Required
Defendant argues that the trial court prejudicially erred in failing to instruct the jury on the requirement of unanimity. He asserts that the prosecution presented evidence of two acts of burglary-his initial entry into the residence with an unlawful intent and his entry into Doe’s bedroom with an unlawful intent. Defendant acknowledges that the prosecutor elected to only argue the facts that he committed the burglary when he entered the residence, but he claims that the prosecutor’s election was “fictitious and repeatedly contradicted by [her] closing argument that intermingled and confused the separate acts of burglary.” He concludes that, given the evidence, the court’s instructions, and the argument of counsel, the jurors could have convicted him in the absence of a unanimous agreement as to which act constituted the burglary charged and/or when the felonious intent was formed. We disagree.
CALCRIM No. 3500, the standard unanimity instruction, provides in pertinent part: “The People have presented evidence of more than one act to prove that the defendant committed this offense. You must not find the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed.”
“In a criminal case, a jury verdict must be unanimous.” (People v. Russo (2001) 25 Cal.4th 1124, 1132.) The jury must also “agree unanimously the defendant is guilty of a specific crime.” (Ibid.) Thus, “when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act.” (Ibid.) “Where no election is made, the court has a duty to instruct sua sponte on the unanimity requirement.” (People v. Curry (2007) 158 Cal.App.4th 766, 783.)
Defendant was charged with a single count of burglary. (§ 459.) In order to prove he was guilty, the prosecution had to establish that: 1) defendant entered a building; and 2) when he entered the building, he intended to commit theft, rape, oral copulation, unlawful sexual intercourse, or some other sex crime. “[W]here burglary is the charged offense, the jury is not required to agree on which specific intent the burglar harbored at the time he entered the residence.” (People v. Hernandez (2009) 180 Cal.App.4th 337, 348.)
As conceded by defendant, during discussions regarding his proposed jury instruction on trespass, the prosecutor stated: “I have elected because factually I could argue two separate burglaries-entering the residence and entering Jane Doe’s bedroom. I have elected to only argue the facts that the defendant committed the crime of burglary when he entered the residence. We discussed this off the record and I had not put it in the record.” The prosecutor made her election clear, and she consistently maintained her focus on defendant’s intent when he entered the residence during her closing argument.
When she discussed the elements of burglary to the jury, she said: “[B]urglary is entry into a building with the intent to commit a theft or a felony. Entry into a building with the intent. We know that the defendant entered this residence because Jane Doe found him inside her bedroom. Their house is a building.” (Italics added.) She also explained that “[t]he crime is completed once you enter the building. You enter a building with the intent to commit theft or a felony. The crime is done. The crime is done. The fact that you never steal anything doesn’t matter.... All you have to do is have intent when you enter the residence.” (Italics added.) The prosecutor clearly and repeatedly argued that defendant’s entry into the residence, with the required intent, constituted the burglary.
Furthermore, as she was explaining the intent requirement to the jury, the prosecutor stated: “One more thing about intent. A person can enter with dual purposes as long as one of those purposes was theft or a felony. He could have entered that residence with the intent to commit theft. He could have entered that residence to commit something else too at the same time. He could have multiple things going on in his mind as long as one of them was theft or any other felony.” Again, the prosecutor stressed that it was the entry into the residence that constituted the burglary. The prosecutor also explained that the jurors did not need to agree on which theft or which felony defendant intended on committing, as long as they all agreed that defendant was guilty of burglary.
Defendant argues that the prosecutor “repeatedly argued at least two theories of burglary to the jury and repeatedly conflated both [defendant]’s act of entering the residence and his entry into the bedroom as the possible acts constituting the crime charged, thereby permitting the jury to consider after-acquired intent in determining [his] guilt as to the initial entry.” The examples defendant cites do not support his argument. First, he quotes the prosecutor as saying, “We know that the defendant entered his residence because Jane Doe found him inside her bedroom.” The prosecutor made this statement while explaining that entry into a building with the intent to commit a theft or felony constitutes a burglary.
Second, defendant refers to the prosecutor’s statement that “we have evidence of intent when he walks up, and he knows that Jane Doe is in that bedroom, because she is talking to him.” Defendant is incorrect in arguing that these statements show the prosecutor “conflated” his initial entry into the house and his entry into the bedroom as the possible acts constituting the burglary. However, defendant is correct in stating that the prosecutor argued two theories of burglary. As discussed above, the prosecutor only argued that the entry into the house plus intent constituted the burglary. She presented two theories of burglary in terms of defendant’s intent at the time of entry into the house-that of theft, since he said he was looking for spare change, and that of committing a sex crime, as shown by him standing next to Doe’s bed, preparing to take off his pants.
In sum, the record undisputedly shows that the prosecutor elected to only argue the facts that defendant committed the crime of burglary when he entered the residence. The prosecutor argued accordingly. No unanimity instruction was required.
II. The Trial Court Erred When It Imposed the Second Enhancement Under Section 667, Subdivision (a)(1)
Defendant argues, and the People agree, that the court erred when it imposed two 5-year terms pursuant to section 667, subdivision (a)(1), since the charges underlying the convictions alleged under those enhancement allegations were not brought and tried separately. We agree.
Section 667, subdivision (a), provides that “any person convicted of a serious felony who previously has been convicted of a serious felony in this state... shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately.” In determining whether the prior serious felony convictions were “brought and tried separately, ” the Supreme Court concluded that the charges on those convictions cannot have been brought in the same complaint. The Supreme Court in In re Harris (1989) 49 Cal.3d 131, stated: “We conclude that the requirement in section 667 that the predicate charges must have been ‘brought and tried separately’ demands that the underlying proceedings must have been formally distinct, from filing to adjudication of guilt. Here, as the record plainly reveals, the charges in question were not ‘brought... separately, ’ but were made in a single complaint.” (Id. at p. 136.) Accordingly, the court held that, under section 667, the defendant “was subject to only one 5-year enhancement, not two.” (Id. at p. 137.)
In the instant case, the information alleged pursuant to section 667, subdivision (a)(1), that defendant suffered one prior serious felony conviction for forcible rape (§ 261, subd. (a)(2)), and one prior serious felony conviction for attempted forcible oral copulation (§§ 664, 288a, subd. (c)(2)), both in San Bernardino County case No. FSB05959. Thus, both charges were made in a single complaint. Defendant pled guilty to those charges pursuant to a plea agreement. At the court trial on the prior convictions, the prosecutor stipulated that both charges involved the same victim. The court found both allegations to be true and subsequently imposed two 5-year terms under section 667, subdivision (a)(1).
We conclude that, as the prior convictions were not “brought and tried separately, ” the court erred in imposing two 5-year enhancements. (See People v. Jackson (2009) 170 Cal.App.4th 1600, 1609.) Thus, one of the enhancements imposed under section 667, subdivision (a)(1), should be stayed. (Ibid.)
III. The Trial Court Properly Denied Defendant’s Romero Motion
Defendant argues that the trial court abused its discretion in denying his Romero motion to dismiss one of his prior strike convictions. He asserts that the court ignored his background, physical and mental condition, and the nature and circumstances of his present and prior offenses and, thus, the court failed to make an individualized sentencing determination. He adds his prior strikes were remote in time, and his current offense was minor. We conclude that the court properly declined to strike any of his prior strikes.
A. Standard of Review
In Romero, supra, 13 Cal.4th at pages 529-530, the California Supreme Court held that a trial court has discretion to dismiss three-strike prior felony conviction allegations under section 1385. “[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) “[A] trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 377.) “‘“[T]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.”’” (Id. at pp. 376-377.)
B. The Trial Court Did Not Abuse Its Discretion
The touchstone of the Romero analysis is “‘whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.’” (Carmony, supra, 33 Cal.4th at p. 377.) “[T]he circumstances must be ‘extraordinary... by which a career criminal can be deemed to fall outside the spirit of the... scheme....’” (Id. at p. 378.)
This case is far from extraordinary. Defendant claims that the trial court abused its discretion in failing to strike one of the prior convictions, given that his two prior strikes occurred in 1995-nine years prior to the current offense. However, his recidivist criminal history brings him squarely within the spirit, as well as the letter of the three strikes law. Defendant’s criminal history dates back 18 years, when he was first convicted of sexual battery (Pen. Code, § 243.4, subd. (d)) and indecent exposure (Pen. Code, § 314, subd. (1)) on December 17, 1992. He was sentenced to jail for approximately six months and then released on probation. However, on July 15, 1994, while on probation, defendant was convicted of malicious mischief to a vehicle. (Veh. Code, § 18053.) He was placed in jail again and then released on two years’ probation. On March 2, 1995, again while on probation, defendant was convicted of resisting a public officer. (Pen. Code, § 148, subd. (a).) Then, on August 4, 1995, defendant pled guilty to forcible rape (Pen Code, § 261, subd. (a)(2)) and attempted forcible oral copulation (Pen. Code, §§ 664, 288a, subd. (c)). Pursuant to the terms of a plea agreement, he was sentenced to six years in state prison. As part of the agreement, a charge of annoying or molesting a child (Pen. Code, § 647.6) was dismissed. Defendant was apparently released on parole on April 17, 2000. On December 27, 2002, he was discharged from parole. Less than a year and a half later, defendant was charged with, and later convicted of, committing the current offense.
The abstract of judgment reflects that the date of conviction on these two felonies was August 4, 1995. However, defendant was not sentenced until February 13, 1996.
During his lengthy criminal history, defendant repeatedly violated his grants of probation or parole. Moreover, evidence of the instant offense clearly exhibited his intent to commit some kind of sex crime when he entered Doe’s residence. He illuminated Doe’s bedroom before he walked inside, then walked over to the side of the bed, and began to unbuckle and unzip his pants. In short, despite numerous convictions and incarcerations, defendant continued his criminal conduct and, specifically, attempted to commit more sex crimes. Defendant’s current offense demonstrates that past attempts at rehabilitation have failed.
Defendant specifically contends that “[t]here is nothing in the record showing that the court made any effort to consider or evaluate in an individualized manner how [his] mental and physical disabilities may have affected his prior conduct and behavior or current crime or prospects.” We disagree.
The court here was fully aware of defendant’s alleged mental health issues. At trial, defendant argued that defendant did not have any criminal intent when he entered Doe’s residence. He asserted that he had previously been in a motorcycle accident, which left him with a serious brain injury and required him to take a lot of medication. He contended that such medication often made him confused. His essential defense was that he was not a rationally thinking person at the time he committed the current offense, but was a person who was in a state of confusion.
Then, in his Romero motion, defendant explained his history of being sexually abused as a child, his past drug use, and his motorcycle accident and brain injury. The court expressly stated that it received, read, and considered defendant’s Romero motion. In addition, the court suspended criminal proceedings after defense counsel expressed a doubt regarding defendant. A “medical commission” was appointed by the court, and the court found defendant competent. Thus, the record belies defendant’s claim that the court made no effort to consider his background or disabilities.
Defendant adds that the court failed to consider that the prosecution offered a 12-year deal in exchange for a guilty plea, and then a 19-year four-month deal. He fails to explain how this consideration would shed any light on his history of recidivist criminal behavior.
In view of the record, we cannot say that the court’s decision not to dismiss any of defendant’s prior strike convictions was “so irrational or arbitrary that no reasonable person could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.) We find no abuse of discretion.
DISPOSITION
The trial court is directed to stay one of the enhancements imposed under section 667, subdivision (a)(1). The superior court clerk is directed to amend the abstract of judgment to reflect this modification and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: RICHLI J.MILLER J.