Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA347430, Robert J. Perry, Judge. Affirmed with directions.
Pamela J. Voich, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
Defendant Robert Lurence appeals from a judgment entered after the jury convicted him of count 1, making criminal threats (Pen. Code, § 422). The trial court found true the allegations that defendant had suffered two prior convictions of serious or violent felonies (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d) (the “Three Strikes” law)); that each of those convictions also constituted a serious felony pursuant to section 667, subdivision (a)(1); and that defendant had served two prior prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code unless otherwise indicated.
Defendant’s first trial ended in a mistrial on January 16, 2009. The second trial commenced March 13, 2009, and on March 18, 2009, the jury returned a guilty verdict.
At the sentencing hearing, the trial court partially granted defendant’s motion to dismiss prior convictions pursuant to section 1385, by striking one of defendant’s 2000 convictions for robbery in case No. SA039261. The trial court sentenced defendant to state prison for a term of 11 years consisting of the following: count 1, four years (the middle term of two years doubled); plus a consecutive five-year prior serious felony enhancement pursuant to section 667, subdivision (a)(1); plus two consecutive one-year prior prison term enhancements pursuant to section 667.5, subdivision (b).
We affirm with directions.
CONTENTIONS
Defendant contends that the trial court: (1) committed reversible error by failing to instruct on the prosecutor’s untimely disclosure of evidence; and (2) improperly imposed cumulative enhancements for the same prior prison term. The People concede that the trial court erred in imposing a one-year prior prison term enhancement, but request that the matter be remanded to the trial court for resentencing.
FACTS AND PROCEDURAL BACKGROUND
In January 2008, 16-year-old C.R. received a number of calls on her cellular telephone from her former boyfriend, 23-year-old Jose. Jose, known by the nickname Angel, was a member of the Wanderers gang. In 2006, C.R. was a member of the Wanderers gang when she was arrested for robbery of rival gang members at the age of 15. She was dating Jose at the time. C.R. was sentenced to Camp Community Placement (camp) for a one-year term after the juvenile court ordered her declared a ward of the court. Upon being released in September 2007, she disassociated from her gang lifestyle and decided not to see Jose anymore, despite receiving numerous telephone calls from him. Prior to entering camp, C.R. had also associated with Jose’s friend, defendant, who was a member of the Playboys gang, which had a friendly relationship with the Wanderers gang. Defendant told C.R. that he had committed robberies and carjackings for the Playboys gang. On one occasion, C.R. saw defendant retrieve a gun from his car trunk.
On January 25, 2008, Jose called C.R. from an 818 area code telephone number (the 818 number) that was not his, asking her to go out with him. C.R. refused, but Jose continued to press her. After C.R. hung up, defendant called her from the 818 number. In an angry voice, defendant told C.R. that he had a gun and was outside the school. He told her that he was going to come to the school and “snatch” C.R. He also said to C.R. that she “knew how he was.” C.R. was frightened and said no. C.R. reported the incident to the assistant principal, who in turn discussed the call together with C.R. and her probation officer.
On January 28, 2008, Jose called from the 818 number and told C.R. that he was going to pick her up at her residence near the corner of Beverly and Burlington. C.R. refused. Hefty, a member of the Wanderers gang got on the telephone and told C.R. that she could not get out of the gang that easily. He said that she would have to be “jumped out, ” or beaten up. C.R. thought Hefty meant that she would be “jumped out” that night. C.R. told Hefty that she was not going to go with them. Defendant then got on the telephone and angrily told C.R. that he was going to pick her up. C.R. told him that she was not going with them. Defendant reiterated that he was going to pick her up and that they were already coming for her.
C.R. ran to her apartment and did not pick up the subsequent call from defendant. The call recorded on voicemail stated: “Bitch I’ll kill you. Bitch I’ll kill you right here. Sending us fucking Beverly and Burlington. Bitch wait till I’ll see you. Bitch. I’m a go wait for you at the school alright. You know who the fuck you know. Alright. Bitch.” When she listened to the message, C.R. was afraid that defendant and his friends were at her home and were going to do something to her.
C.R. played the voicemail message for her brother Marcos and her mother. She told them that it was defendant’s voice. She was scared and felt threatened. C.R. then called her father, Pedro and told him that defendant had called her and threatened to kill her. Pedro came to the apartment, listened to the message, and called the police. C.R. reported the threats to the police.
Los Angeles Police Department Detective Joseph Meyer (Meyer) interviewed C.R. the next day. He listened to the message then went with his partner to defendant’s residence where defendant was arrested. In defendant’s residence, Meyer found a cellular telephone on top of a wallet that contained defendant’s identification. Meyer dialed the 818 number and the cellular telephone rang. The recovered cellular telephone showed an outgoing call to C.R.’s cellular telephone on January 28, 2008.
During the ride to the police station, defendant repeatedly asked Meyer who had complained about him. In accordance with procedure, Meyer did not tell defendant the identity of the complainant. Defendant then stated: “It was that bitch [C.R.], uh? I know where that bitch lives. She lives on Burlington in apartment […]. That’s all right, I’ll send someone over to talk to her tonight.” Meyer testified that the recorded voicemail message sounded like defendant’s voice.
Two or three weeks after defendant left the message, Pedro received a telephone call from Jose, who asked him not to press charges against defendant. He said that he would never hurt C.R. because he loved her. Jose’s voice did not sound like the voice on the voicemail message.
DISCUSSION
I. The trial court did not err by failing to instruct on untimely disclosure
Defendant contends that the trial court failed to comply with its own ruling that it would instruct the jury as to the prosecutor’s untimely disclosure of witnesses Marcos and Pedro. We disagree.
Section 1054.1 requires the timely disclosure of specific relevant information relating to witnesses to be called and statements and evidence obtained. If the trial court finds that the People made an untimely disclosure, section 1054.5 permits the trial court to “advise the jury of any failure or refusal to disclose and of any untimely disclosure.” (§ 1054.5, subd. (b).) Section 1054.7 requires disclosure be made at least 30 days prior to the trial. It also provides that “[i]f the material and information becomes known to, or comes into the possession of, a party within 30 days of trial, disclosure shall be made immediately....” (§ 1054.7.)
Defendant contends that the trial court failed to comply with its own ruling that it would instruct the jury as to the People’s untimely disclosure of witnesses Marcos and Pedro. But the record shows that the trial court never specifically agreed to instruct the jury as to the purported untimely disclosure. On March 13, 2009, immediately after the jury was selected and excused for the day, defense counsel argued that the disclosure of the proposed testimony by Pedro and Marcos was untimely and in violation of section 1054. The prosecutor represented that he only learned of Marcos’s existence the prior evening on March 12, 2009, and as a result, gave defense counsel information concerning Marcos the morning of March 13, 2009. He stated that he and a Spanish speaking detective went to C.R.’s apartment where he met Marcos for the first time. When Marcos answered the door, the prosecutor asked him questions about the incident. Marcos told the prosecutor that he was present when C.R. came running in from the laundry room, frightened, and that she told him defendant had just called her. In further discussion in court, defense counsel and the prosecutor agreed that the key issue in the case was identity and not whether C.R. suffered genuine or sustained fear. Defense counsel acknowledged that he had refused the trial court’s offer to continue the trial to further investigate. The trial court then mentioned it would consider giving the jury an instruction explaining that the defense learned of a witness at a later than usual date.
Defendant filed a motion in limine on the morning of the next court date, March 16, 2009, to preclude the prosecutor from referring to Marcos or Pedro in his opening statement or to call either of them as a witness pending defendant’s receipt of all required discovery. Defendant’s motion did not request a sanction to be imposed upon the People. At the hearing on the motion, the prosecutor represented that C.R. had stated in interviews that she lived with her two brothers and mother, but had never mentioned that Marcos had witnessed her reaction to the threatening call. The prosecutor confirmed that he had provided defense counsel with the reports of Pedro’s statements, that he did not take notes of the interview of Marcos on March 12, 2009, that he ran a computer check for prior convictions or impeachment evidence concerning Marcos on March 13, 2009, and that he spoke to defense counsel and faxed a copy of the report to him on March 14, 2009. The prosecutor stated that his investigation of Pedro did not reveal any prior convictions or impeachment evidence.
After noting that defense counsel rejected the opportunity to continue the matter, the trial court rejected defense counsel’s request to bar the prosecutor from mentioning Marcos in opening statement or to call Marcos as a witness. The trial court concluded that the matter had not been thoroughly investigated. It found that the prosecutor did not knowingly delay discovery and that in compliance with section 1054.7, the prosecutor immediately disclosed information as soon as it became known to him. The trial court held that it would allow the witnesses to testify and the prosecutor to mention both Marcos and Pedro in opening statement.
First, it appears that the trial court ultimately concluded that the prosecutor disclosed the information regarding Marcos to the defense in a timely manner and in compliance with section 1054.7. Therefore an instruction was not necessary. Second, the trial court ultimately decided not to give the subject instruction. Therefore, defendant’s complaint that the trial court did not follow its own ruling is without merit. “Having failed to press for a ruling thereon, the point is simply not preserved for appellate review.” (People v. Alaniz (1986) 182 Cal.App.3d 903, 907.) We also note that defense counsel never requested clarifying instructions of any sort or the instruction he now complains the trial court should have given. (People v. Johnson (1993) 6 Cal.4th 1, 52, overruled on another ground in People v. Rogers (2006) 39 Cal.4th 826, 879.)
We find that the trial court did not err in failing to instruct the jury on late discovery.
II. The trial court improperly imposed cumulative enhancements for the same prior prison term
Defendant contends, and the People concede, that the trial court improperly imposed both a five-year enhancement pursuant to section 667, subdivision (a)(1) and a one-year prior prison term enhancement pursuant to section 667.5, subdivision (b), based on the same prior conviction in case No. SA039261.
“[W]hen 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.” (People v. Jones (1993) 5 Cal.4th 1142, 1150.)
The trial court found true that pursuant to the Three Strikes law, defendant had suffered two prior convictions of serious or violent felonies, namely, convictions of two counts of robbery in case No. SA039261 in the year 2000. The trial court also found that each of those convictions constituted a serious felony pursuant to section 667, subdivision (a)(1). It was further determined that defendant had served prior prison terms within the meaning of section 667.5, subdivision (b), as a result of his 2000 robbery convictions in case No. SA039261 and in a 2006 conviction of burglary in case No. BA303512.
At the sentencing hearing, the trial court partially granted defendant’s section 1385 motion to dismiss prior conviction allegations by striking one of defendant’s year 2000 convictions of robbery in case No. SA039261 for purposes of sentencing under the Three Strikes law. The trial court then sentenced defendant to state prison for a term of 11 years consisting of the following: count 1, four years (the middle term of two years doubled); plus a consecutive five-year prior serious felony enhancement pursuant to section 667, subdivision (a)(1); plus two consecutive one-year prior prison term enhancements pursuant to section 667.5, subdivision (b).
We find that under People v. Jones, supra, 5 Cal.4th at page 1150, the trial court was not authorized to impose a one-year enhancement under section 667.5, subdivision (b) based on case No. SA039261 in addition to the five-year enhancement under section 667, subdivision (a)(1) based on the same prior conviction. We reject the respondent’s request to remand for resentencing on the basis that the trial court might have made different sentencing choices had it known the one-year prior prison term enhancement was improper, citing People v. Rojas (1988) 206 Cal.App.3d 795, 802 (Rojas) in support of their argument. In Rojas, the trial court structured the sentence based on its incorrect assumption that a five-year enhancement pursuant to section 667, subdivision (a) may be imposed for a prior conviction occurring after commission of the crime for which the defendant is presently being sentenced. Division 6 of the Second Appellate District remanded for resentencing because “the trial court indicated that it selected the term imposed due to its belief that the five-year enhancement was mandatory. Otherwise, the trial court stated, it might have considered sentencing appellant under the harsher sentencing scheme of section 667.6, subdivision (c).” (Rojas, supra, at p. 802.) In the present case, there is no indication in the record that the trial court structured the sentence specifically around its belief that the one-year enhancement was mandatory.
We find that the one-year prior prison term enhancement imposed under section 667.5, subdivision (b) based on the conviction in case No. SA039261 must be stricken. (People v. Jones, supra, 5 Cal.4th at p. 1153.)
DISPOSITION
The judgment is modified as follows: the one-year prior prison term enhancement imposed under section 667.5, subdivision (b) based on the conviction in case No. SA039261 is stricken. The trial court is directed to send a copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur BOREN, P. J., ASHMANN-GERST, J.