Opinion
F039958.
7-10-2003
THE PEOPLE, Plaintiff and Respondent, v. SHANNON MAURICE LEE, Defendant and Appellant.
Joseph Shipp, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Jeffrey D. Firestone and Michelle L. West, Deputy Attorneys General, for Plaintiff and Respondent.
FACTUAL AND PROCEDURAL HISTORY
After commission of a strong-arm robbery, Shannon Maurice Lee threatened a police officer during the booking process. A jury found him guilty of second degree robbery and attempting by threat or violence to deter an officer from performing a lawful duty (attempting by threat). (Pen. Code, §§ 211, 212.5, subd. (c), 69.) He admitted three strike prior allegations. (Pen. Code, §§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d).) The court sentenced him to 50 years to life in state prison.
Other relevant facts are in the discussion of the issues on appeal.
DISCUSSION
I. Evidence of the absent robbery victims hearsay statements
On the premise that the prosecution failed to show due diligence in securing the presence at trial of robbery victim Hipolito Ruiz, Lee argues that the admission at trial of an officers testimony about a bystanders translation of his hearsay statements was a prejudicial violation of his state statutory rights in Evidence Code sections 240 and 1370 and his federal and state constitutional rights to confrontation and due process. The Attorney General argues that the admission of that evidence satisfied statutory and constitutional requirements.
Preliminarily, we will adjudicate the validity of Lees premise that the prosecution failed to show due diligence in securing Ruizs presence at trial. To do so, we apply the independent review standard. (People v. Sandoval (2001) 87 Cal.App.4th 1425, 1432, citing Ohio v. Roberts (1980) 448 U.S. 56, 74-75, 65 L. Ed. 2d 597, 100 S. Ct. 2531, and People v. Cromer (2001) 24 Cal.4th 889, 901.)
Though "`incapable of a mechanical definition," the term "`due diligence ... connotes persevering application, untiring efforts in good earnest, efforts of a substantial character." (People v. Cromer , supra, 24 Cal.4th at p. 904, quoting People v. Linder (1971) 5 Cal.3d 342, 346-347, 96 Cal. Rptr. 26, 486 P.2d 1226.) "Relevant considerations include "whether the search was timely begun" [citation], the importance of the witnesss testimony [citation], and whether leads were competently explored [citation]." (People v. Cromer, supra, at p. 904.) In our independent review of the record, we will apply those criteria.
Since the importance of testimony of the robbery victim is evident, we inquire ""whether the search was timely begun."" (People v. Cromer, supra, 24 Cal.4th at p. 904.) On July 2, 2001, the court granted a joint request to continue the preliminary hearing on the ground of Ruizs absence. On July 23, 2001, the prosecutor said she had "information that [he] went back to Mexico and he will be back in about three weeks," represented she was ready to proceed with a Proposition 115 preliminary hearing, and offered "to try to get [him] in here" one more time. With no defense objection, the court ordered another continuance. The record discloses nothing about the source of the prosecutors information.
"Proposition 115 preliminary hearing" refers to a preliminary hearing at which, on the authority of the electorates passage of Proposition 115 at the June 5, 1990, primary election, hearsay evidence from a qualified peace officer is admissible to show probable cause. (See, e.g., Cal. Const., art. I, § 30, subd. (b); Evid. Code, § 1203.1; Pen. Code, § 872, subd. (b).)
On August 20, 2001, seven weeks after Ruizs failure to appear, the court held Lee to answer at a Proposition 115 preliminary hearing. On September 4, 2001, over two weeks later, the prosecutor said she intended to proceed at trial with "statements taken at the scene by the police officers from [Ruiz]" on the ground that "we probably will be unable to find [him]." Not until the next day, September 5, 2001-two months and three days after Ruizs failure to appear-did the district attorneys office assign investigator Fabian Benabente to find him.
On September 5, 2001, Benabente interviewed tenants living at Ruizs last known address, who knew nothing, and a former neighbor, who said Ruiz bought a bus ticket to Tijuana three or four weeks after the robbery. During the ensuing eight days, Benabente ran a warrants check, a rap sheet, and a Department of Motor Vehicle printout and queried the county coroner, the county jail, federal immigration, and three local hospitals. For the next 18 days, he did nothing. On October 2, 2001, after finding "no forwarding address" at "the local post office," he signed a declaration summarizing his efforts to find Ruiz.
On October 2, 2001, the prosecutor filed a motion in limine seeking the admission at trial of the officers testimony about the bystanders translation of Ruizs hearsay statements. She attached Benabentes declaration to her motion. On October 12, 2001, over a defense objection on the ground of lack of due diligence, the court found Ruizs hearsay statements satisfied the requirements of Evidence Code section 1370, found he was "unavailable as a witness" within Evidence Code section 240, and granted the prosecutors motion.
Evidence Code section 1370 provides in part: "(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met: [P] (1) The statement purports to narrate ... physical injury ... [P] (2) The declarant is unavailable as a witness pursuant to Section 240. [P] (3) The statement was made at or near the time of the ... physical injury... [P] (4) The ... circumstances ... indicate its trustworthiness. [P] (5) The statement was ... made to a ... law enforcement official."
Evidence Code section 240 provides in part: "(a) ... Unavailable as a witness means that the declarant is any of the following: [P] ... [P] (5) Absent from the hearing and the proponent of his or her statement has exercised reasonable diligence but has been unable to procure his or her attendance by the courts process."
Contrary to the Attorney Generals argument, the record shows that efforts to secure Ruizs attendance at trial fell far short of due diligence. The search for Ruiz did not even begin for over two months after his failure to appear. That is the opposite of a search "timely begun." (Cf. People v. Cromer, supra, 24 Cal.4th at p. 904.) The record shows no effort to contact any former neighbor besides the one who said Ruiz bought a bus ticket to Tijuana. The record shows no endeavor to follow up that lead with the bus company. The record shows not one inquiry about Ruizs local employment, if any, or local relatives, if any. The record shows no steps to follow up the prosecutors own "information that [he] went back to Mexico and he will be back in about three weeks." The record shows no request for assistance or information from the Mexican consulate. That is quite the opposite of a search whose "leads were competently explored." (Cf. ibid.)
Had the search for Ruiz shown the "persevering application, untiring efforts in good earnest, [and] efforts of a substantial character" that characterize due diligence, invocation of a treaty authorizing mutual legal assistance in criminal investigations and prosecutions could well have developed useful information. (People v. Cromer, supra, 24 Cal.4th at p. 904; see Mexico-United States: Mutual Legal Assistance Cooperation Treaty, Dec. 9, 1987, Sen. Treaty Doc. No. 100-13, eff. May 3, 1991, 27 I.L.M. 443 (the treaty); see generally People v. Sandoval, supra, 87 Cal.App.4th at pp. 1438-1443.) The treaty specifically authorizes mutual assistance to obtain witnesses for trial. (Treaty, arts. 7-9; 27 I.L.M. at p. 449; People v. Sandoval, supra, at pp. 1439-1440.) Not surprisingly, since "serious efforts to locate [Ruiz] were unreasonably delayed, and investigation of promising information was unreasonably curtailed" (People v. Cromer, supra, at p. 904), the record shows no invocation of the treaty by the district attorneys office.
In light of those desultory and tardy efforts to find Ruiz, we hold that the finding of due diligence permitting the admission of the officers testimony about the bystanders translation of Ruizs hearsay statements was patently erroneous. Assuming arguendo that the error violated Lees state statutory rights in Evidence Code sections 240 and 1370 and his federal and state constitutional rights to confrontation and due process, we will analyze the record to determine if the error was harmless beyond a reasonable doubt.
Our analysis commences with the officers testimony. A bystander at the scene translated Ruizs Spanish into English for an officer who testified at trial not to Ruizs statements but to the bystanders statements. The officer understood "very little Spanish" and grasped only the meaning of Ruizs "hand gestures" and "some" of his Spanish. He thought Ruiz and the bystander seemed fluent in Spanish and capable of understanding each other. He did not write down or remember the bystanders name, address, or any other identifying information and had no idea if she was a certified translator.
The crux of the bystanders statements to the officer was that an adult Black male whom Ruiz did not know walked up to him, hit him in the face with his fist, and knocked him down. As he lay face down on the ground, his assailant punched him in the back of the head with a closed fist, took a wallet out of his pocket, and left. Ruiz later identified Lee as his attacker, the wallet the police showed him as his, and papers the police found inside the back bedroom closet of the nearby apartment of Lees cousin as his. He said he was "100 percent sure" of his identification of Lee.
Our analysis continues with the evidence of Lees guilt entirely apart from the officers testimony. One eyewitness, Jose M., saw a Black male take a wallet from a Hispanic male after punching him in the back of the head as he lay on the ground. Another eyewitness, Lees cousin Robert Davis, saw a "Mexican guy laying on the ground" on the other side of the street and heard neighbors screaming and pointing at Lee as he ran toward Daviss apartment. Yet another eyewitness, Daviss niece, saw Lee run into Daviss apartment with a wallet, empty the wallet in the back bedroom closet, throw the wallet into her brothers bedroom, and hide in the closet of the back bedroom.
Jose M. pointed out Daviss apartment to an officer at the scene as the place where the robber lived. Davis answered a knock at the door of his apartment and told the officer Lee was inside the back bedroom. Lee emerged from the back bedroom and told the officer, "I was hiding in the closet." Jose M. identified Lee as the robber.
After his arrest, Lee made incriminatory statements to the booking officer. "Man, this is fucked up, that Spic, mother fucker aint even going to show up in court." "That fuckin wetback aint never going to court." "That mother fucker wont be able to ID me, I will shave my mustache, I will grow hair on my head, that mother fucker wont be able to ID me in court if that non English speakin bitch even shows up." "That fucker cant even talk English." The booking officer testified he never told Lee if Ruiz could speak English.
On that record of abundant evidence of Lees guilt entirely apart from the officers testimony about the bystanders translation of Ruizs hearsay statements, we hold that the erroneous finding of due diligence leading to the admission of the officers testimony was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824; see Lilly v. Virginia (1999) 527 U.S. 116, 139-140, 144 L. Ed. 2d 117, 119 S. Ct. 1887 [applying the Chapman standard of review to confrontation clause violations].)
In light of our holding, we reject out of hand Lees argument that his counsels failure to preserve his right to appellate review of that issue constituted ineffective assistance of counsel and do not address his arguments that the officers testimony about the bystanders translation of Ruizs statements was unreliable or that Evidence Code section 1370 is unconstitutional.
II. Designation of attempting by threat as a felony
On the premise that the jurys verdict failed to designate whether the crime of attempting by threat was a felony or a misdemeanor, Lee argues that the three strikes law is inapplicable and a remand for resentencing is imperative. The Attorney General argues the contrary. The count two verdict shows that the jury found Lee guilty of attempting by threat "as charged in count two of the information." Count two of the information charged him with the "felony" of attempting by threat. The record belies his argument.
III. Instruction on attempting by threat or violence to deter an officer
Lee argues that instructing the jury that attempting by threat is a general intent crime was a prejudicial violation of his federal and state constitutional rights to due process and trial by jury. The Attorney General acknowledges that attempting by threat is a specific intent crime but argues that Lee forfeited his right to appellate review by failing to object. The Attorney General characterizes the distinction between general intent and specific intent as "simply another layer of jargon, another obstacle to understanding, that should simply be abandoned" and argues that the instructional error was harmless.
Preliminarily, we consider the Attorney Generals forfeiture argument. Failure "to instruct on an element of a crime is federal constitutional error [citation] that requires reversal of the conviction unless it can be shown beyond a reasonable doubt that the error did not contribute to the jurys verdict [citations]." (People v. Sengpadychith (2001) 26 Cal.4th 316, 324, italics omitted.) Applying the established rule allowing appellate review of any instruction that affects the substantial rights of the accused, even in the absence of an objection, we reject the Attorney Generals argument. (Pen. Code, § 1259; People v. Flood (1998) 18 Cal.4th 470, 482, fn. 7, 957 P.2d 869; People v. Andersen (1994) 26 Cal.App.4th 1241, 1249.)
Next, we consider the Attorney Generals invitation to abandon the distinction between general intent and specific intent. The Supreme Court has articulated a distinction between the two. (People v. Hood (1969) 1 Cal.3d 444, 456-457, 82 Cal. Rptr. 618, 462 P.2d 370.) "When the definition of a crime consists of only the description of a particular act, without reference to intent to do a further act or achieve a future consequence, we ask whether the defendant intended to do the proscribed act. This intention is deemed to be a general criminal intent. When the definition refers to defendants intent to do some further act or achieve some additional consequence, the crime is deemed to be one of specific intent." (Ibid.) "The Court of Appeal must follow, and has no authority to overrule," opinions of the Supreme Court. (People v. Birks (1998) 19 Cal.4th 108, 116, fn. 6, 960 P.2d 1073, citing Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal. Rptr. 321, 369 P.2d 937.) We decline the Attorney Generals invitation.
So we turn to the merits of Lees argument. The record shows that he told the officer who was booking him he did not want to go into custody. The officer told Lee to sit down, but he refused. The officer said he would make him sit if he did not sit down on his own. In close proximity to the officer, Lee said, "Try it, mother fucker." He demanded his release: "Bitch, let me go." Twice during the reading of Miranda rights, Lee spat on the officer. "Mother fucker, if I had my gun right now Id put a cap in your red headed ass," he said. "I kill mother fuckers." "Take these handcuffs off so I can fuck you up." The officer thought Lee "would have done or said anything to keep [him] from ... booking [Lee] at the jail." "This is not over," he warned the officer, "Ill find you and then youll see."
Miranda v. Arizona (1966) 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602.
In a sequence of instruction-settling conferences, the parties stipulated to deletion from CALJIC No. 7.50 of one statutory theory of criminal liability-actual resistance by force or violence-and instruction solely on the alternative statutory theory of criminal liability-attempted resistance by threat or violence. The court so instructed the jury:
"The defendant is accused in Count Two of having violated Section 69 of the Penal Code, a crime.
"Every person who willfully and unlawfully attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty imposed upon that officer by law, or who knowingly resists, by the use of force or violence, an executive officer in the performance of his or her duty, is guilty of a violation of Section 69 of Penal Code, a crime.
"The term executive officer includes a police officer.
"In order to prove this crime, each of the following elements must be proved:
"1. A person willfully and unlawfully attempted to deter or prevent an executive officer from performing any duty imposed upon that officer by law; and
"2. The attempt was accomplished by means of any threat or violence." (CALJIC No. 7.50 (6th ed. 1996).)
With regard to the statutory theory of criminal liability on which the court instructed-attempted resistance by threat or violence-the court expressly authorized a guilty verdict if the jury were to find a concurrence of act and general criminal intent:
"In the crime charged in Count Two, namely, obstructing an executive officer, there must exist a union or joint operation of act or conduct and general criminal intent. General intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent, even though he may not know that his act or conduct is unlawful." (CALJIC No. 3.30 (6th ed. 1996).)
The statutory theory of criminal liability on which the parties stipulated the court need not instruct-actual resistance by force or violence-describes a general intent crime, but the statutory theory of criminal liability on which the court instructed the jury-attempted resistance by threat or violence-describes a specific intent crime. (In re M.L.B. (1980) 110 Cal. App. 3d 501, 503; People v. Patino (1979) 95 Cal. App. 3d 11, 27, 156 Cal. Rptr. 815; People v. Roberts (1982) 131 Cal. App. 3d Supp. 1, 8-9, 182 Cal. Rptr. 757; see generally People v. Hood, supra, 1 Cal.3d at pp. 456-457.) The rule is settled that to instruct on general criminal intent with regard to a specific intent crime is to err. (People v. Zerillo (1950) 36 Cal.2d 222, 231-232, 223 P.2d 223; People v. Holquin (1964) 229 Cal. App. 2d 398, 403, 40 Cal. Rptr. 364, disapproved on another ground in People v. Daniels (1975) 14 Cal.3d 857, 861-862, 122 Cal. Rptr. 872, 537 P.2d 1232.) "Under established law, instructional error relieving the prosecution of the burden of proving beyond a reasonable doubt each element of the charged offense violates the defendants rights under both the United States and California Constitutions." (People v. Flood, supra, 18 Cal.4th at pp. 479-480.) The only question is whether the error requires reversal.
First, we note that no other instruction cured the error. The standard cautionary instruction on concurrence of act and specific intent applied only to the robbery:
"In the crime charged in Count One, namely, robbery[,] there must exist a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. Unless this specific intent exists the crime to which it relates is not committed.
"The specific intent required is included in the definition of the crime set forth elsewhere in these instructions." (CALJIC No. 3.31.)
Likewise, the standard cautionary instruction on sufficiency of circumstantial evidence to prove specific intent or mental state applied only to the robbery:
"The specific intent with which an act is done may be shown by the circumstances surrounding the commission of the act. However, you may not find the defendant guilty of the crime charged in Count One, namely, robbery, unless the proved circumstances are not only (1) consistent with the theory that the defendant had the required specific intent, but (2) cannot be reconciled with any other rational conclusion.
"Also, if the evidence as to specific intent permits two reasonable interpretations, one of which points to the existence of the specific intent and the other to its absence, you must adopt that interpretation which points to its absence. If, on the other hand, one interpretation of the evidence as to the specific intent appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable." (CALJIC No. 2.02 (1999 rev.) (6th ed. 1996).)
Second, the evidence shows that during transportation to the county jail an officer sprayed Lee with Mace to subdue him after he tried to kick out the windows of the patrol car. That was the same officer whom Lee threatened shortly afterward during the booking process. Instruction on specific intent could have helped the jury to distinguish between angry statements without specific intent and threatening statements with specific intent.
Third, Lees verbal threats to the officer, apart from his incidental spitting, were the only evidence on the basis of which the jury could have found him guilty. Without instruction on specific intent, the basis of the jurys verdict could have been speech that lacked specific intent and enjoyed constitutional protection:
"A threat, unaccompanied by any physical force, may support a conviction for the first type of offense under section 69. [Citation.] To avoid the risk of punishing protected First Amendment speech, however, the term threat has been limited to mean a threat of unlawful violence used in an attempt to deter the officer. [Citations.]" (In re Manuel G. (1997) 16 Cal.4th 805, 814-815, 941 P.2d 880, italics added.)
On that record, we cannot declare the error harmless beyond a reasonable doubt. Accordingly, we will reverse the judgment of conviction of count two, attempting by threat. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Sengpadychith, supra, 26 Cal.4th at p. 324.)
In light of our holding, we do not address Lees arguments that notice in the three strikes law of possible consecutive sentencing is constitutionally void for vagueness, that Penal Code section 148 is a lesser included offense of Penal Code section 69, or that a three strikes law sentence of 50 years to life constitutes cruel and/or unusual punishment.
IV. CALJIC No. 17.41.1
Lee argues that CALJIC No. 17.41.1 (1998 new) violated his federal and state constitutional rights to due process and jury trial, the federal and state constitutional rights of the jurors to freedom of speech and association, and the jurys power of nullification. The Attorney General argues the contrary.
The Supreme Court has held that CALJIC No. 17.41.1 does not violate the accuseds federal constitutional right to jury trial and that the jury lacks the right of nullification. (People v. Engelman (2002) 28 Cal.4th 436, 439, 441.) By parity of reasoning, we reject Lees argument that the instruction impairs his federal and state constitutional rights to due process and his state constitutional right to jury trial and that the infringement, if any, on the jurys power of nullification is not cognizable since the jury has no right of nullification. (See Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.)
Lee cites nothing in the record showing any actual interference by CALJIC No. 17.41.1 with the jurys deliberative process. (Cf. Cal. Rules of Court, rule 14(a)(1)(C); see People v. Engelman, supra, 28 Cal.4th at p. 441. ) Accordingly, we reject his argument as entirely conjectural and hold that error, if any, was harmless beyond a reasonable doubt. (See People v. Molina (2000) 82 Cal.App.4th 1329, 1332, 1335-1336; see generally Chapman v. California, supra, 386 U.S. at p. 24.)
In the absence of that showing, the Supreme Courts order that courts not so instruct in the future to avoid the "potential" of adversely affecting the jurys deliberative process has no application. (People v. Engelman, supra, 28 Cal.4th at pp. 440, 447.)
V. Cumulative error
Lee argues that the cumulative effect of the errors he identifies requires reversal. The Attorney General argues the contrary. In the absence of any synergy among the count two error from which we have already granted relief, the count one error that we assumed arguendo, and the CALJIC No. 17.41.1 error that we posited conjecturally, we hold that the record fails to show cumulative prejudice. (See People v. Bradford (1997) 15 Cal.4th 1229, 1344, 939 P.2d 259.) "A defendant is entitled to a fair trial but not a perfect one." (Lutwak v. United States (1953) 344 U.S. 604, 619, 97 L. Ed. 593, 73 S. Ct. 481.) Lee received the fair trial to which he was entitled.
VI. Refusal to strike any strike priors
Lee argues that the lack of "meaningful information" about his criminal background made the courts refusal to strike any of his strike priors an abuse of discretion that violated his federal and state constitutional rights to due process and effective assistance of counsel. The Attorney General argues the contrary. Lees request, the prosecutors opposition, and the probation officers report all set out facts about Lee and his criminal background. The court heard argument from both counsel before ruling. Applying the abuse of discretion standard of review, we hold that there was no error. (People v. Williams (1998) 17 Cal.4th 148, 152, 948 P.2d 429; People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 504, 917 P.2d 628.)
VII. Prior juvenile adjudication as a strike prior
Lee argues that Apprendi v. New Jersey (2000) 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 precludes the use of his prior juvenile adjudication of robbery as a strike prior under the three strikes law since he had no jury at his prior juvenile adjudication. The Attorney General argues the contrary. The argument "that because a person previously tried as a juvenile had no right to a jury trial in juvenile court, the prior juvenile adjudication cannot constitutionally be treated as a prior conviction for the purpose of the Three Strikes law" has "no merit." (People v. Bowden (2002) 102 Cal.App.4th 387, 391; People v. Fowler (1999) 72 Cal.App.4th 581, 584-587.)
DISPOSITION
The judgment of conviction is reversed solely as to count two, attempting by threat. The matter is remanded to the superior court. If within 30 days after the filing of the remittitur in the superior court the prosecutor files a written election to try Lee before a properly instructed jury, and if within 60 days after the filing of the remittitur in the superior court he is brought to trial, the superior court shall proceed accordingly. (See Pen. Code, § 1382, subd. (a)(2).)
Otherwise the superior court shall dismiss the count two conviction of attempting by threat, issue an amended abstract of judgment showing a sentence of 25 years to life in state prison on the count one conviction of second degree robbery, and forward certified copies of the amended abstract of judgment to the appropriate persons. Lee has no right to be present at proceedings modifying the judgment and amending the abstract of judgment. (See People v. Price (1991) 1 Cal.4th 324, 407-408, 821 P.2d 610.)
WE CONCUR: DIBIASO, Acting P.J., and BUCKLEY, J.