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People v. King

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 26, 2012
B228644 (Cal. Ct. App. Jan. 26, 2012)

Opinion

B228644

01-26-2012

THE PEOPLE, Plaintiff and Respondent, v. PATRICK KING, Defendant and Appellant.

Renee Paradis, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BA365343)

APPEAL from a judgment of the Superior Court of Los Angeles County, Craig E. Veals and Stephen A. Marcus, Judges. Affirmed in part, reversed in part and remanded with directions.

Renee Paradis, under appointment by the Court of Appeal, for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

Patrick King appeals from the judgment entered after his jury conviction of possession for sale of cocaine base and soliciting prostitution. King's appointed counsel filed a Wende brief. (People v. Wende (1979) 25 Cal.3d 436.) On June 9, 2011, we directed appointed counsel to send the record on this appeal and a copy of the brief to King and notified King that he had 30 days from the date of the notice to submit by brief or letter any grounds of appeal he wished us to consider. We received no response from King.

We invited the parties to brief two potential sentencing errors that were disclosed in our review of the record. After considering their briefs, we affirm the conviction and remand the case so that the trial court may orally pronounce a sentence on count 2. We also direct the court to correct two clerical errors in the abstract of judgment.

FACTUAL AND PROCEDURAL SUMMARY

On December 2, 2010, undercover police officers Farias and Ortiz were posing as prostitutes on the corner of Crocker Street and Seventh Street in downtown Los Angeles. King and his brother approached the officers. After a brief conversation, King showed the officers a bindle with what appeared to be crack cocaine. He offered each officer a hit and $25 for sex. When Officer Ortiz questioned whether the cocaine was real, King said that he did not "sell cheap shit." On the way to a nearby hotel where the officers said they had a room, King was arrested by other members of the vice squad. During a search at the police station, 2.81 grams of crack cocaine and $306 in cash were found on his person.

King was charged with possession for sale of cocaine base (Health & Saf. Code, § 11351.5) and soliciting prostitution (Pen. Code, § 647, subd. (b)). Numerous priors also were alleged. King waived his right to counsel and represented himself throughout the trial court proceedings. Judge Veals denied King's motions to set aside the information and to suppress evidence (Pen. Code, §§ 995, 1538.5), each of which was based on King's claim that he was arrested without probable cause. King purported to issue subpoenas under Penal Code section 1326 to all police officers whose names appeared in the police report, regardless of the extent of their involvement in the case. Judge Marcus found the subpoenas were invalid because they were unsigned.

Penal Code section 1326, subdivision (a) lists the persons who may sign and issue a subpoena. The court incorrectly relied on subdivision (a)(4), "[t]he attorney of record for the defendant[,]" to conclude that King, who was in pro per, had to sign the subpoenas. The subpoenas were nevertheless invalid because a criminal defendant is not among the persons who may issue a subpoena. Rather, subdivision (a)(3) provides that "the clerk of the court in which a criminal action is to be tried" may sign and issue subpoenas and "shall, at any time, upon application of the defendant, and without charge, issue as many blank subpoenas, subscribed by him or her, for witnesses in the state, as the defendant may require." The exchange on the record indicates that the signature line on the subpoenas was blank.

King's defense at trial was entrapment, and the court instructed the jury accordingly. King and his brother testified that the officers struck up a conversation with them and offered them sex for $20, to which King agreed. King's version of the conversation was as follows: He initially told the officers that he was not looking for a date because he had "an old lady at the hotel waiting" for him. The officers told him that his date would not have to know. He declined again but continued talking to the officers because he "didn't want to be disrespectful." He threatened to leave when the officers were unclear about what they wanted to do, which prompted them to offer him sex. He asked about the price, consulted with his brother, and accepted the offer. He denied having offered or shown the officers any drugs.

King also testified that another undercover officer had propositioned him when he was in the area a couple of hours earlier, and he sought to identify the officer in order to call her as a witness in his defense. Officer Ortiz testified that she had observed the earlier conversation and believed that King had spoken to Officer Mole. The prosecutor reported that Officer Mole and another undercover officer on duty that evening denied having had contact with King, but except for Officers Farias and Ortiz, no female undercover officer testified at trial because the court quashed King's subpoenas. In addition to finding the subpoenas invalid, the court was of the opinion that King's earlier conversation with the unidentified female officer was largely irrelevant to his separate conversation with Officers Farias and Ortiz which led to his arrest.

The test for entrapment is whether the law enforcement agent's conduct was "likely to induce a normally law-abiding person to commit the crime." (People v. Barraza (1979) 23 Cal.3d 675, 690.) A decoy program is permissible so long as the suspect is not pressured by "overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime." (Id. at p. 690.) King was attempting to establish that the undercover officers propositioned him during both encounters; he turned down the unidentified officer's offer, and accepted Officer Farias's and Officer Ortiz's offer only after the officers pressured him. The actions of the officer involved in the first encounter were irrelevant since King's arrest was not based on it. The jury could choose to credit the officers' version of the second encounter, but even under King's version of it, the jury could find that the officers did not pressure him.

King's defense to the charge of possession for sale was that he was an addict but not a seller. One of his witnesses testified to that effect. Based on this testimony, the court instructed the jury on the lesser included offense of simple possession. (Health & Saf. Code, § 11350)

The jury was allowed to hear about King's prior criminal history under three different circumstances. Officer O'Brien testified that before searching King he ran a criminal history check, which revealed that King was on parole and had numerous drug-related arrests. The court declined to strike this testimony or take any other action because King had invited it by asking Officer O'Brien whether and how he knew that King had a criminal history. Additionally, King did not object or request a corrective action when the prosecutor asked the defense witness who testified that King was not a drug seller whether she knew of King's drug sale convictions. The court instructed the jury that it could not consider the substance of the prosecutor's questions as evidence of King's character but that it could consider evidence from other sources. Finally, the prosecutor impeached King's own testimony with prior crimes of moral turpitude, including one of possession for sale and another for burglary. The court instructed the jury that it could consider these convictions in evaluating King's credibility.

Before the case was submitted to the jury, King gave up his right to a jury trial on the enhancement allegations and admitted all of the alleged priors. The jury convicted him as charged.

King then filed a motion for a new trial. The motion was partly based on his belief that Officers Hernandez and Kim, who arrested King after receiving a signal from Officers Farias and Ortiz, committed perjury when they testified they had stopped King in a car. He also argued the prosecutor suborned perjury and committed misconduct in characterizing the officers' testimony as simply mistaken. Additionally, King argued that the verdict was not supported by the evidence, and that the evidence instead supported his defense of entrapment and the lesser included offense of simple possession. King contended that the prosecutor had withheld exculpatory evidence by failing to identify the undercover officer with whom King had spoken earlier on the evening of his arrest. King made various allegations of judicial misconduct against Judge Marcus—that he quashed King's subpoenas, allowed perjured testimony, instructed the jury on how to treat the evidence of his criminal history and told the jury to disregard King's expression of gratitude to his assigned private investigator. The court denied the motion, explaining that in presenting his case King had chosen to focus on minor or irrelevant matters and nonissues.

The court sentenced King to 11 years in prison on the possession for sale count. The court selected the middle term of four years, doubled it pursuant to the Three Strikes law (Pen. Code, §§ 1170.12, subd. (a)-(d), 667, subd. (b)-(i)), and added three years under Health and Safety Code section 11370.2, subdivision (a). The court misspoke, referring to Health and Safety Code section 11370.2, subdivision (a) as Penal Code section 11370.2, subdivision (a). King repeatedly reminded the court of his pending Boykin-Tahl motion to strike his 1984 plea-based burglary conviction, which he alleged was invalid because he had not been advised that he would be giving up his right to counsel at a jury trial. The court did not rule on the motion.

In re Tahl (1969) 1 Cal.3d 122 (Tahl) interpreted Boykin v. Alabama (1969) 395 U.S. 238 (Boykin) to require automatic reversal of a plea-based conviction where a defendant was not specifically advised of and did not waive his rights to a jury trial and confrontation of witnesses, as well as his right against compelled self-incrimination. (People v. Allen (1999) 21 Cal.4th 424, 434-435, 437 (Allen).) In People v. Howard (1992) 1 Cal.4th 1132, 1175, the court replaced the automatic reversal rule, holding that in the absence of such advisements, reversal was required if the plea was not knowing and intelligent. (Allen, 21 Cal. 4th at pp. 438.) A motion to strike a prior conviction may be based on the three Boykin-Tahl rights, provided the defendant alleges prejudice, or it may be based on a claim of denial of counsel under Gideon v. Wainwright (1963) 372 U.S. 335. (Allen, 21 Cal. 4th at pp. 440-442.) The right to counsel at a jury trial is not one of the Boykin-Tahl rights, and King did not claim to have been unrepresented at his plea hearing in 1984. The court's failure to rule on his motion to strike did not prejudice King.
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King received 308 days of actual credit and an equal number of local conduct credits for a total credit of 616 days. (See former Pen. Code, § 4019, subds. (b), (c) & (f), as amended by Stats.2009-2010, 3d Ex.Sess., ch. 28, § 50 (Sen. Bill No. 18), eff. Jan. 25, 2010; § 4019, subd. (g).) The court also imposed a restitution fine of $900 and an additional $900 suspended parole revocation restitution fine (Pen. Code, §§ 1202.4, subd. (b), 1202.45). Additionally, the court assessed a $30 court security fee, a $30 criminal conviction assessment fee, and a $50 lab fee plus any penalty assessments connected with it. (Pen. Code, § 1465.8, subd. (a)(1); Gov. Code, § 70373; Health & Saf. Code, § 11372.5, subd. (a).) The court did not specify the precise amounts of penalty assessments, but the minute order and abstract of judgment reflect that a penalty of $85 was assessed on the lab fee—$50 under Penal Code section 1464 and $35 under Government Code section 76000.

The reporter's transcript does not reflect the sentence the court imposed on the soliciting prostitution count, but the minute order and abstract of judgment indicate a concurrent 30-day sentence. The abstract of judgment incorrectly reflects that the conviction was obtained by plea. Additionally, both the minute order and the abstract of judgment incorrectly reflect that the three-year sentence enhancement on count 1 was imposed under Penal Code section 1170.2, subdivision (a).

DISCUSSION

We have examined the record and are satisfied that no arguable issues exist as to King's conviction. (People v. Wende, supra, 25 Cal.3d at p. 441.) Our discussion is limited to sentencing issues.

The court did not orally pronounce a sentence on count 2, an error since a judgment must be pronounced with regard to each conviction. (Hoffman v. Superior Court (1981) 122 Cal.App.3d 715, 721.) The court's oral pronouncement of a sentence, rather than its entry in the minute order and abstract of judgment, constitutes the judgment. (People v. Mesa (1975) 14 Cal.3d 466, 471; People v. Blackman (1963) 223 Cal.App.2d 303, 307.) When the trial court fails to pronounce judgment on counts on which a defendant was validly convicted, we are authorized to remand for pronouncement of a judgment in accordance with the verdict. (People v. Taylor (1971) 15 Cal.App.3d 349, 353.) The parties agree that we should remand the case for the court to orally pronounce a sentence on count 2.

Both sides agree that the court's failure to orally specify the amounts of the mandatory penalty assessments under Penal Code section 1464 and Government Code section 76000 was not an error since the amounts are statutorily prescribed. In People v. Sharret (2011) 191 Cal.App.4th 859, 864, the appellate court recognized that the trial court's short-hand reference to "penalty assessments" on the record, followed by the trial clerk's inclusion of the penalty assessment amounts in the minute order and abstract of judgment, was a common and acceptable practice. We agree that no further action needs to be taken as to the $85 penalty assessment imposed on the lab fee.

Under our authority to correct clerical errors (People v. Mitchell (2001) 26 Cal.4th 181, 185), we order the abstract of judgment amended to reflect that King was convicted by jury, rather than by plea. The minute order and abstract of judgment must also be corrected to reflect that the three-year sentence enhancement on count 1 was imposed under Health and Safety Code section 11370.2, subdivision (a) and not under Penal Code section 1170.2, subdivision (a).

DISPOSITION

The conviction is affirmed. The sentence is reversed to the extent the trial court did not orally pronounce a sentence on count 2. The case is remanded for oral pronouncement of sentence on count 2. The abstract of judgment also must be amended to reflect that conviction was by jury and that the three-year sentence enhancement on count 1 was imposed under Health and Safety Code section 11370.2, subdivision (a).

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

_______________

EPSTEIN, P. J.

We concur:

WILLHITE, J.

SUZUKAWA, J.


Summaries of

People v. King

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR
Jan 26, 2012
B228644 (Cal. Ct. App. Jan. 26, 2012)
Case details for

People v. King

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. PATRICK KING, Defendant and…

Court:COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR

Date published: Jan 26, 2012

Citations

B228644 (Cal. Ct. App. Jan. 26, 2012)