Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. TA072786. Allen J. Webster, Judge.
J. Frank McCabe, under appointment by the Court of Appeal, for 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, and William H. Davis, Deputy Attorney General, for Plaintiff and Respondent.
COOPER, P.J.
Hollie Jones appeals from his convictions for second degree burglary and two counts of robbery. He argues the trial court erred in consolidating one count of robbery with the other counts, abused its discretion in refusing to instruct the jury on trespass, and violated the principles of Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531] (Blakely) when it sentenced him to the high term for one count of robbery.
The United States Supreme Court granted certiorari in this case and vacated the judgment, for further consideration in light of Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct 856 (Cunningham). We reconsider the sentence and find that, under our high court’s application of Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II), the imposition of the high term was appropriate. As in the prior opinion, we find no error and affirm the judgment of conviction.
FACTUAL BACKGROUND
October 22, 2003 Burglary
On October 22, 2003, Iesha Howard was living in an apartment at Imperial Courts. When Howard returned home at approximately 10:00 p.m., she noticed that the bars on her windows had been cut. Her apartment had been ransacked and was a mess, but nothing was missing.
Tomeshia Jackson saw Jones cutting the bars to Howard’s windows. She also saw Jones standing in the front door. Tomeshia walked to a police officer and told the officer that someone was breaking into Howard’s apartment. When she returned, Jones asked her if she “wanted to get a TV or anything.”
Tomeshia Jackson gave conflicting testimony of whether she saw Jones inside Howard’s apartment. She testified that she never saw the person cutting the bars actually go into the house but she also testified she saw Jones crawling through the window.
December 9, 2003 Robbery
Tori Jackson, Tomeshia’s husband knew Jones for 18 years. On December 9, 2003, Tori went outside to look for Tomeshia’s cell phone. Jones walked up and said “what’s up Tori?” Jones told Tori to “drop everything out of your pockets.” Tori refused and then Jones pointed a gun at Tori’s head and again ordered him to remove everything from his pockets. Jones took Tori’s cell phone and wallet containing a credit card, social security card and identification. Tori called 911 and told the police that Jones had put a gun to his head. Tori also identified Jones in a photographic lineup. The police recovered Tori’s identification and credit card in Jones’s residence.
Officers Aufdemberg and Hogg testified for the defense. When they interviewed Tori about the robbery, Tori did not give the name of the perpetrator. But Tori told Officer Hogg he went to elementary school with the suspect.
December 5, 2003 Robbery
Carlos Cortez also was living at Imperial Courts. On December 5, 2003, as he was headed to work, someone climbed on the back of his van, pointed a pistol at him, and demanded his money. Cortez stepped out of the van and the man approached within one or two feet. The man said “give me everything you have.” Cortez handed over his wallet and all the money in his pockets. The man was facing Cortez throughout the incident. When Cortez spoke to police immediately after the incident, he stated that the person who robbed him appeared to be between 30 and 35 years old and weighed approximately 180 pounds.
Prior to trial, Cortez was shown two photographic lineups. The first time he identified two possible persons. The second time he conclusively identified Jones. The second photograph of Jones was more recent than the first. Cortez also identified Jones during trial. Cortez testified he had no doubt it was Jones who robbed him.
PROCEDURAL BACKGROUND
In one information, Jones was charged with burglary of an inhabited dwelling and second degree robbery of Tori Jackson. In a second information, Jones was charged with the second degree robbery of Cortez. The trial court allowed consolidation of the charges over defense objection. Each robbery count included an allegation that Jones personally used a firearm within the meaning of Penal Code section 12022.53, subdivision (b). It was further alleged that Jones suffered two prior serious or violent felonies within the meaning of the Three Strikes law.
All further statutory citations are to this code.
Jones was tried by jury with a codefendant who is not part of this appeal. The defense requested an instruction based on section 602.5 concerning trespassing. The prosecutor did not agree, and the court refused to instruct the jury on trespassing. Defense counsel, however, argued to the jury that it could not find the intent to steal because nothing was taken from the apartment.
The jury found Jones guilty of the burglary and both counts of second degree robbery. The jury also found true the personal use allegations. Jones waived his right to a jury trial on the prior convictions. The court found one prior strike allegation to be true. Jones was sentenced to 33 years in prison, including the high base term. Jones timely appealed.
DISCUSSION
Jones argues that the trial court abused its discretion (1) in allowing the Cortez robbery to be tried with the other counts and (2) in refusing to give an instruction on trespass. He also argues that his high term sentence violates the principles of Blakely, supra, 542 U.S. 296, a case subsequently applied to the California sentencing scheme in Cunningham. The Attorney General disputes each of these contentions.
I. Joinder of the Cortez Robbery With the Other Counts
Jones argues that the trial court abused its discretion in allowing the information alleging the Cortez robbery to be consolidated with the other counts. Joinder was appropriate under Penal Code section 954. The crimes were of the same class as all involved the wrongful taking of someone else’s property. (People v. Koontz (2002) 27 Cal.4th 1041, 1075.) However, Jones argues the charges should not have been consolidated because the three incidents were entirely separate, the evidence of each count was different, and count three was much weaker than the other counts.
Section 954 provides “[a]n accusatory pleading may charge . . . two or more different offenses of the same class of crimes or offenses, under separate counts . . . provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately . . . .”
“‘“The burden is on the party seeking severance to clearly establish that there is a substantial danger of prejudice requiring that the charges be separately tried.” [Citation.] [¶] . . . Refusal to sever may be an abuse of discretion where: (1) evidence on the crimes to be jointly tried would not be cross-admissible in separate trials; (2) certain of the charges are unusually likely to inflame the jury against the defendant; (3) a “weak” case has been joined with a “strong” case, or with another “weak” case, so that the “spillover” effect of aggregate evidence on several charges might well alter the outcome of some or all of the charges; and (4) any one of the charges carries the death penalty or joinder of them turns the matter into a capital case. [Citations.]’ [Citations.]” (People v. Bradford (1997) 15 Cal.4th 1229, 1315.) A court may not refuse joinder solely on the basis of lack of cross-admissibility of evidence. (People v. Grant (2003) 113 Cal.App.4th 579, 587.)
Here, the evidence would not be cross-admissible as Jones argues. But none of the other factors is satisfied. No one charge was unusually likely to inflame the jury against Jones. No count involved the death penalty. Contrary to Jones’s argument, the evidence on each count, including the Cortez count, was strong. While Cortez did not identify Jones in the first photographic lineup, Cortez identified Jones once a more recent picture of Jones was used. Cortez’s identification was solid. He testified that he was directly facing Jones and that he was positive Jones was the perpetrator. In contrast to the count involving Tori Jackson, no contrary evidence was presented on the count involving Cortez. Thus, the trial court did not abuse its discretion in allowing the consolidation of the counts.
Jones states that Cortez’s description was inaccurate as he was 24 years old, but evidence of his age was not presented to the jury. There was no evidence that Jones did not appear as Cortez described him even though at sentencing Jones stated that he was 24 years old.
Even if the decision to consolidate is correct at the time it is made, a criminal conviction must be reversed if the joinder resulted in a denial of due process. (Ibid.) Jones argues that he was denied due process because “joining the weak evidence of the Cortez robbery to the stronger evidence of the Jackson robbery markedly increased the chances of appellant’s conviction not only on the weak Cortez count but on all charges because it raised an inference that appellant was on the street committing offenses with great frequency.” The inference that Jones was committing offenses with great frequency was not a valid inference based on the jury instructions and the prosecutor did not argue otherwise. The trial court expressly instructed the jury that “each count charges a distinct crime. You must decide each count separately. The defendants may be found guilty or not guilty of any or all of the crimes changed in counts . . . 1, 2, and 3.” These facts distinguish this case from Grant, supra, 113 Cal.App.4th 579, where the prosecutor expressly argued that the jury could consider the evidence for one count when it decided another count and one count was substantially weaker than the other. Contrary to Jones’s argument, the record does not suggest that the jury could have been influenced in deciding the Cortez robbery because of the joinder of it with the other counts.
II. Alleged Instructional Error
Jones argues the court erred in refusing to instruct the jury on unauthorized entry as a lesser related offense to burglary. Jones emphasizes that no property was taken from Howard’s apartment.
Section 602.5, subdivision (a) defines unauthorized entry of property and provides: “Every person other than a public officer or employee acting within the course and scope of his or her employment in performance of a duty imposed by law, who enters or remains in any noncommercial dwelling house, apartment, or other residential place without consent of the owner, his or her agent, or the person in lawful possession thereof, is guilty of a misdemeanor.”
In People v. Birks (1998) 19 Cal.4th 108, the defendant, who was convicted of two counts of burglary, had similarly requested an instruction on trespass. On one count items were missing and on the other count “no items were disturbed or missing.” (Id. at p. 113.) With the prosecutor’s agreement, the trial court instructed the jury on trespass with respect to the count that no items were missing but refused the instruction on the other count. (Id. at p. 114.) The court held that a defendant does not have “a unilateral entitlement to instructions on lesser offenses which are not necessarily included in the charge.” (Id. at p. 136.) The court noted that its “decision does not foreclose the parties from agreeing that the defendant may be convicted of a lesser offense not necessarily included in the original charge. When the parties consent to such a procedure . . . neither can claim unfairness, and the prosecution’s role in determining the charges is not improperly compromised. . . . Finally nothing in our holding prevents the defendant from arguing in any case that the evidence does not support conviction of any charge properly before the jury, and that complete acquittal is therefore appropriate.” (Id. at p. 136, fn. 19.) The high court stressed that “it is ordinarily the prosecution’s function to select and propose the charges” and that substantial separation of powers issues arise if criminal defendants were allowed the “right to insist on jury consideration of nonincluded offenses without the prosecutor’s consent.” (Id. at p. 136.)
In light of Birks, Jones shows no error in the refusal to allow the instruction Jones unilaterally requested. In any event, Jones could not show any prejudice because he expressly argued that he did not have the intent to take anything from the apartment as demonstrated by the fact that nothing was stolen from Howard’s apartment. The jury necessarily rejected this argument when it found him guilty of burglary. Appellant was not denied an opportunity to present a defense as his defense was that he lacked the requisite intent. His ability to argue this to the jury is consistent with the framework established in Birks.
III. Alleged Sentencing Error
The trial court sentenced Jones to the high term for robbery (count two). The court found the high term appropriate for the following reasons: “[T]he crime involved great violence, threat of bodily injury, the defendant was armed at the time. The victim – the manner in which the crime was carried out indicated planning, sophistication and professionalism. With respect to Mr. Jones he is engaged in violent conduct which indicates a serious danger to society, and his prior convictions seem to be escalating from juvenile now to adult seem to become more serious. Obviously he served a prior prison term and was on parole when . . . these crimes were committed.”
The United States Supreme Court ordered us to consider his sentence in light of Cunningham, supra, 127 S.Ct 856. In Cunningham, the United States Supreme Court held California’s determinate sentencing law (DSL) unconstitutional because it violated a defendant’s right to a jury trial by requiring a judge instead of a jury to make factual findings that subject a defendant to an upper term sentence. (Id. at p. 868.) Subsequently, in Black II, the California Supreme Court applied Cunningham.
Our high court held that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny [including Cunningham], any additional fact finding engaged in by the trial court in selecting the appropriate sentence among three available options does not violate the defendant’s right to a jury trial.” (Black II, supra, 41 Cal.4th at p. 812.) “Under California’s determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citations.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813.)
Here, the trial court found three factors which rendered Jones eligible for the upper term: (1) he suffered a prior conviction and (2) his prior convictions were of increasing seriousness and (3) he was on parole when the crime was committed. (Black II, supra, 41 Cal.4th at pp. 819-820.) The probation report indicates that as an adult, Jones suffered two misdemeanor convictions followed by a felony conviction. Jones was on parole at the time he committed the current offenses. “Therefore, he was not legally entitled to the middle term, and his Sixth Amendment right to jury trial was not violated by imposition of the upper term sentence . . . .” (Id. at p. 820.) “No matter how many additional aggravating facts are found by the court, the upper term remains the maximum that may be imposed. Accordingly judicial fact finding on those additional aggravating circumstances is not unconstitutional.” (Id. at p. 815.) Under Black II, the imposition of the upper term complied with Jones’s Sixth Amendment right to a jury trial.
DISPOSITION
The judgment is affirmed.
We concur: RUBIN, J., FLIER, J.