Opinion
G028677.
10-29-2003
THE PEOPLE, Plaintiff and Respondent, v. EDWARD MIRANDA, Defendant and Appellant.
Cheri A. Owen; and Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and Vincent L. Rabago, Deputy Attorneys General, for Plaintiff and Respondent.
The jury convicted defendant, Edward Miranda, of two counts of indecent exposure with a prior offense. The court also found true two strike priors and three prior prison term enhancements (prison priors). The court sentenced defendant to a term of 25 years to life for the first count of indecent exposure, and a consecutive 16-month term for the second indecent exposure. The court struck the prior serious felonies as to the second count, and stayed the three prior prison term enhancements.
Defendants prior offense was a conviction for lewd and lascivious conduct with a child.
Defendant challenges his conviction and sentence contending: (1) there was insufficient evidence to convict him of indecent exposure in count one; (2) his counsel was ineffective; (3) the prosecutor committed prosecutorial misconduct; and (4) the court abused its discretion when it denied his motion to strike his prior offenses. We affirm the conviction. But the court lacked authority to stay imposition of the prison priors. The court must either impose the prison priors or strike them. Accordingly, we remand with directions to resentence defendant.
FACTS
The Incident Involving Ana Mendoza
In April of 1999, defendant lived in the same apartment complex as Ana Mendoza (Mendoza.) Mendoza first saw defendant in the laundry room at about 4:00 p.m. They spoke briefly with one another. Mendoza noticed defendant was acting strangely and "looking around [everywhere]." Mendoza left the laundry room.
Mendoza returned to the laundry room about 20 minutes later. The laundry room was empty, but she felt someone was watching her. Mendoza looked up and saw defendant standing under the stairway about 20 feet away, holding his penis. Mendoza thought defendants pants were down near his crotch. Defendant was looking at Mendoza and moving his penis. When the police arrived, they found defendant standing under the carport area of the apartment complex.
The Incident Involving Irma Onofre
Defendant was arrested and taken to the Santa Ana jail. Irma Onofre (Onofre) was also in custody, and was seated in the same area as defendant. Onofre felt defendant staring at her, became uncomfortable, and turned away from him. After a while, Onofre felt defendant was looking at her again, and she turned to confront him about his staring. As she turned around, she saw defendant had his penis out of his pants, and was moving his penis with his hand. Defendant did not have any handcuffs on, and his leg was up. When Onofre called defendant a "fuckin[g] pig," he put his penis back in his pants and began looking around the area.
DISCUSSION
Substantial Evidence Supports the Conviction for Indecent Exposure in Count One
Defendant argues there was insufficient evidence to convict him of indecently exposing himself to Ana Mendoza in count one. We disagree.
When a challenge is made to the sufficiency of the evidence, "`[t]he test on appeal is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt." (People v. Johnson (1980) 26 Cal.3d 557, 576.) We view the evidence in the light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319.)
Section 314, subdivision (1) of the Penal Code provides in part: "Every person who willfully and lewdly . . . . [¶] [e]xposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby . . . . [¶] is guilty of a misdemeanor. [& para;] . . . [¶] Upon the second and each subsequent conviction under subdivision 1 of this section . . . , every person so convicted is guilty of a felony, and is punishable by imprisonment in state prison." "The separate requirement that the intent of the actor be `Lewd is an essential element of the offense declared by section 314." (In re Smith (1972) 7 Cal.3d 362, 365.) "[A] person does not expose his private parts `lewdly within the meaning of section 314 unless his conduct is sexually motivated. Accordingly, a conviction of that offense requires proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront." (Id. at p. 366.)
All further statutory references are to the Penal Code, unless otherwise indicated.
ARONSON, J., Concurring:
I concur in the majority opinion, but write separately to emphasize that defendants life sentence on the underlying charge must be taken into account in determining whether to impose sentence on the remaining priors. (See People v. Garcia (1999) 20 Cal.4th 490, 499-500 [trial courts decision to strike priors on second burglary count after imposing Three Strikes life sentence for separate burglary affirmed].)
Defendant contends there was no evidence he intended to direct public attention to his genitals for the purpose of sexual arousal. But during defendants second encounter with Mendoza, when he exposed himself under the stairwell, he stared at Mendoza, with his pants pulled down to his crotch, and fondled his penis. This was substantial evidence from which the jury was entitled to find that defendant intended to draw public attention to his exposed penis for the purpose of sexual arousal, gratification, or affront. Indeed, on this evidence, it is difficult to draw any other inference.
Counsel Did Not Render Ineffective Assistance
Defendant argues counsel rendered ineffective assistance because he failed to request severance of the indecent exposure counts, and because he failed to object to the prosecutors comments during opening statement and closing argument that defendant was "sick," and his behavior was "sick" and "shocking."
Defendant has the burden of showing both deficient performance and prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 694.) The claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there is no satisfactory explanation. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.) Here, there is a satisfactory explanation. Severance was not required, and the prosecutors remarks were permissible comments on the state of the evidence. We conclude counsels assistance was not deficient nor was it prejudicial.
1. Counsel Was Not Ineffective In Failing to Request a Severance
Defendant raised the severance issue in his motion for new trial, arguing counsel was ineffective in failing to request the severance. In denying the motion for new trial the court stated: "As to the motion to sever, in hindsight, I would not have granted a motion to sever, nor would I grant a motion to sever if it was being made at the present time for the following reasons: [¶] The evidence is cross-admissible. The events occurred within a short period of time. It would have been admissible under [People v. Ewoldt (1994) 7 Cal.4th 380]. [¶] In terms of weak or strong cases, both were one-witness cases. Neither one was particularly stronger than the other. So to sever would have been futile since each incident would have been admissible under Ewoldt in any event. [¶] . . . [¶] In terms of ineffective assistance of counsel, failing to sever, I dont find that to be ineffective at all, since it wouldnt have succeeded to begin with. For that reason, the motion is denied."
The court was correct. No prejudice can be shown, nor was counsels performance deficient, by reason of failure to make a motion which the court concluded would have been denied — unless, of course, a denial of the motion to sever would itself have been an abuse of discretion. Here the court would not have abused its discretion by denying the motion.
Section 954 provides in relevant part: "An 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 or divided into two or more groups and each of said groups tried separately." Because both indecent exposure charges were offenses of the same class, the statutory requirement for joinder was satisfied. Where a motion to sever is denied, defendant can establish error only upon a "clear showing of potential prejudice." (People v. Bradford (1997) 15 Cal.4th 1229, 1315.)
"`"`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.] [¶] `The determination of prejudice is necessarily dependent on the particular circumstances of each individual case, but certain criteria have emerged to provide guidance in ruling upon and reviewing a motion to sever trial. [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."" (People v. Kraft (2000) 23 Cal.4th 978, 1030; Frank v. Superior Court (1989) 48 Cal.3d 632, 639.)
Relying on People v. Ewoldt, supra, 7 Cal.4th 380, the court concluded the evidence of each offense would have been cross-admissible in separate trials. Although uncharged bad acts are not admissible to establish a criminal disposition or bad character (Evid. Code, § 1101, subd. (a)), they may be admissible under Evidence Code section 1101, subdivision (b), "to prove that [defendant] committed the charged offense pursuant to the same design or plan used in committing the uncharged criminal acts." (People v. Ewoldt, supra, 7 Cal.4th at p. 399.) In Ewoldt, the court applied Evidence Code section 1101, subdivision (b), to permit the admission of prior lewd acts in the trial of defendant on a charge of committing a lewd act upon a child, and explained: "To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. . . . Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense."
In the instant case, both counts involved virtually identical criminal conduct evidencing a common design or plan. Defendant exposed himself to two unsuspecting women after staring at them and making them feel uncomfortable. Defendant used the same object to commit the crimes — his exposed penis. Both crimes were connected in time, because they were committed on the same day, within hours of each another.
Thus, the court correctly ruled that any potential prejudice resulting from a joint trial on both counts would not have been overcome by a severance. The evidence of each crime was admissible as to the other. Accordingly, defendant failed to meet his burden of demonstrating either deficient performance or prejudice for counsels failure to request severance.
2. Counsel Was Not Ineffective for Failing to Object to the Prosecutors Comments
Defendant asserts counsel was ineffective in failing to object to certain remarks made by the prosecutor in opening statement and closing argument. As discussed, more fully, post, we conclude there was no prosecutorial misconduct. Accordingly, counsels performance in failing to object was not deficient, nor did it cause prejudice.
There Was No Prosecutorial Misconduct
The prosecutor made references, both in opening statement and closing argument, that defendant was sick or had a sick mind in exposing himself to the victims. Defendant contends this constitutes reversible prosecutorial misconduct. When the issue was raised as part of defendants motion for new trial, the court stated that the prosecutors comments were "generic," "not psychological or medical terms," and were "comments on the actions of a defendant." We agree. There was no prosecutorial misconduct.
Prosecutorial misconduct renders a criminal trial fundamentally unfair "only if it involves `"the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury."" (People v. Gionis (1995) 9 Cal.4th 1196, 1215; People v. Barnett (1998) 17 Cal.4th 1044, 1133.) Colorful terms and descriptive epithets are par for the course. (People v. Williams (1997) 16 Cal.4th 153, 221.) Most importantly, "`Counsel are given latitude in the presentation of their closing arguments, and courts must allow the prosecution to strike hard blows based on the evidence presented and all reasonable inferences therefrom." (Ceja v. Stewart (9th Cir. 1996) 97 F.3d 1246, 1253.) This latitude includes providing the prosecutor with "`broad discretion" to comment on what the evidence reveals, and what inferences the jury may derive from them. (People v. Sims (1993) 5 Cal.4th 405, 463.)
As the court correctly noted, the prosecutors remarks that the defendant was "sick," and that his conduct was "sick" and "shocking" were in the nature of "generic" remarks, constituting permissible comment on the defendants actions in exposing himself in front of two women on two separate occasions within a relatively short time frame. The comments do not appear likely to have been made for the purpose of deceiving the jury, nor was it reasonably likely the jury would have understood the comments to be literally true. Even if the remarks constituted misconduct (which they did not), the asserted error is harmless. "[I]t is not reasonably probable that the prosecutors occasional intemperate behavior affected the jurys evaluation of the evidence or the rendering of its verdict." (People v. Espinoza (1992) 3 Cal.4th 806, 821.)
The Trial Court Did Not Abuse Its Discretion When It Denied Defendants Motion to Strike Priors
Defendant contends the court abused its discretion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, when it refused to strike his prior serious felony convictions as to count one on the basis they were old and because of his "intrinsic worth" as a human being. We disagree.
We review the courts decision under an abuse of discretion standard and will reverse only if the courts decision "`falls outside the bounds of reason." (People v. Williams (1998) 17 Cal.4th 148, 162.) In determining whether to strike a prior serious felony conviction, a court must evaluate the nature and circumstances of the defendants present felonies as well as prior serious and/or violent felony convictions and the defendants background, character and prospects. (Id. at p. 161.)
The court appropriately exercised its discretion when it denied the motion to strike as to count one, but granted the motion as to count two. Defendants prior criminal history placed him squarely within reach of the "Three Strikes" law. His extensive criminal history began in 1978, when he was convicted of misdemeanor indecent exposure. In 1979, he was convicted of vandalism and petty theft. In 1982, he was convicted in three separate cases of receiving stolen property, vehicle theft, and grand theft. Upon release from prison, he violated parole once in 1983 and twice in 1984. In early 1989, he was convicted of misdemeanor spousal battery, and later in the same year he was convicted of misdemeanor brandishing a firearm, and battery.
Later in 1989, he was convicted of lewd and lascivious conduct with his 11-year-old daughter by force or violence. In 1992, he was convicted of residential burglary and vehicle theft. In 1994, he was convicted of attempted grand theft, and commercial burglary. After he was released from prison, he violated his parole in 1998. Defendant was on parole for just 10 months when he committed the instant offense.
In determining whether defendant was outside the spirit of the Three Strikes law, the trial court acknowledged and considered what was an appropriate sentence and what was a "disproportionate sentence" under the circumstances. Defendants most recent crimes, two acts of indecent exposure that occurred almost one after the other, reveals him to be the "kind of revolving-door career criminal for whom the Three Strikes law was devised." (People v. Gaston (1999) 74 Cal.App.4th 310, 320.) The court did not abuse its discretion in denying the motion to strike as to the first count of indecent exposure.
The Court Improperly Stayed the Prison Prior
Neither party raised an issue whether the court is permitted to stay imposition of the prison prior enhancements. But the law requires the court either to impose the prison prior enhancements or to strike them. (People v. Campbell (1999) 76 Cal.App.4th 305, 311.) "`Unless a statute says otherwise, an enhancement may be imposed or stricken, but . . . may not be stayed; to do so is an illegal sentence." (People v. Haykel (2002) 96 Cal.App.4th 146, 151.) While it appears the court did not intend to impose additional terms for the prison priors, we will not speculate whether the court will find reason to strike the prison priors pursuant to section 1385, subdivision (a). Accordingly, the matter must be remanded.
DISPOSITION
The judgment is affirmed in all respects except for the stay of the imposition of sentence on the prison prior enhancements. The matter is remanded to the trial court to consider whether to strike the prison prior allegations or to impose the enhancements. After resentencing, the trial court is directed to prepare a modified abstract of judgment and forward it to the Department of Corrections.
I CONCUR: SILLS, P. J.