Opinion
F072411
11-07-2017
THE PEOPLE, Plaintiff and Respondent, v. ROBBY JON MOON, Defendant and Appellant.
Charles M. Bonneau III, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler and Sean M. McCoy, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF159610A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge. Charles M. Bonneau III, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney General, Kenneth N. Sokoler and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
Defendant, Robby Jon Moon, was convicted of a single count of second degree robbery. Prior conviction allegations were also found true. The court sentenced defendant to an aggregate determinate term of 12 years.
Defendant presents three claims on appeal. He claims: (1) there was insufficient evidence that his prior conviction was a strike under California's three strikes law; (2) the court erred in failing to obtain his express waiver of a right to a jury trial with respect to prior conviction allegations; and (3) the court denied his due process rights by preventing defense counsel from arguing that the victim presented false testimony out of a desire to further punish defendant. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual Background
Hye Young owned a market in Kern County. On March 7, 2015, defendant approached Young at the counter of her store with several articles of clothing. After helping a customer in front of defendant, Young asked defendant to hand her the items. Rather than doing so, defendant attempted to run out of the store. Young jumped over the counter and tried to grab the clothes from defendant. Defendant struck Young in the face causing her eyeglasses to fall off. As she reached up to grab her glasses, defendant pushed her to the ground and ran away. Afterwards, Young complained of dizziness and that her arm was injured as a result of being pushed down. As defendant fled the store, he dropped a few of the articles of clothing.
Some of defendant's actions were captured on the store's surveillance video. Kern County Sheriff's Deputy Michael Fox recognized defendant from the surveillance video based on his prior contacts with defendant, and prepared a photo lineup. Young identified defendant when presented with the lineup from Fox and at trial.
B. Procedural Background
On July 30, 2015, the jury returned its verdict finding defendant guilty of second degree robbery, in violation of Penal Code section 212.5, subdivision (c).
All further statutory references are to the Penal Code.
In addition, the prosecution sought to prove defendant had suffered a prior serious or violent felony conviction within the meaning of sections 667 and 1170.12, a prior conviction for a serious felony, and two prior convictions for which he had served terms of imprisonment.
At the outset of deliberations, outside the presence of the jury, the trial court granted defendant's request for a court trial on the prior serious felony allegations.
After the jury returned a guilty verdict on the substantive charge, the court commenced trial on the prior conviction and prison term allegations. To prove defendant had a prior serious felony conviction, the prosecutor entered certified copies of court records including an abstract of judgment. The trial court reviewed the documents and found that section 243, subdivision (d) was a serious felony, without providing analysis.
Defendant only presents challenges to the court's finding of the prior serious felony. Accordingly, we limit discussion to the evidence and rulings to the prior conviction of battery inflicting serious bodily injury. --------
Defendant was sentenced to six years for the primary conviction, plus an additional five years for the prior serious felony and one year for the prior prison term for a total determinate prison term of 12 years.
DISCUSSION
A. Sufficiency of the Evidence to Support Prior Strike Offense
Defendant argues the prosecution presented insufficient evidence to support the trial court's finding his prior conviction for battery with serious bodily injury was a serious or violent felony as required by the three strikes law because the conviction did not require the personal infliction of great bodily injury on someone other than an accomplice.
Under the three strikes law, a defendant's sentence is enhanced upon proof he or she has been previously convicted of a strike, which is defined as a "violent felony" as defined in section 667.5, subdivision (c), or a "serious felony" as defined in section 1192.7, subdivision (c). (§§ 667, subd. (f)(1), 1170.12, subd. (d)(1).) A serious felony, as relevant here, includes "any felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm." (§ 1192.7, subd. (c)(8).)
The prosecution has the burden " ' "to prove beyond a reasonable doubt those alleged prior convictions challenged by a defendant." ' " (People v. Bueno (2006) 143 Cal.App.4th 1503, 1507 (Bueno).) We review the record in the light most favorable to the judgment to determine whether it is supported by substantial evidence. (People v. Delgado (2008) 43 Cal.4th 1059, 1067 (Delgado).) "In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt." (Ibid.)
The trial court reviewed records provided by the prosecution to establish the prior strike allegation against defendant. The record indicated that defendant pled no contest to the charge of battery with serious bodily injury, that he admitted it would be a strike within the meaning of the three strikes law, and in exchange for that admission, an attached gang allegation (§ 186.22, subd. (b)(1)) and an assault charge (§ 245, subd. (a)(1)) were dismissed. Defendant was "advised of the consequences of a plea to a strike or serious felony." (Full capitalization omitted.) Based on those records, the court found the prior serious felony allegation to be true. However, the court provided no reasoning in support of its holding.
Defendant asserts the evidence is insufficient because it did not show the conviction of battery with serious bodily injury was a serious or violent felony. Respondent admits that the fact defendant was convicted of battery with serious bodily injury alone does not support a finding that the conviction was a serious felony under the three strikes law. Battery with serious bodily injury in violation of section 243 "is not a strike offense—it is neither a violent felony under section 667.5 nor a serious felony under section 1192.7 . . . ." (In re Jensen (2001) 92 Cal.App.4th 262, 268.) The least adjudicated elements of the crime of battery as defined in section 243 are insufficient to establish a serious or violent felony. But the crime of battery with injury qualifies as a strike offense if the prosecution additionally proves the defendant personally inflicted great bodily injury on a person other than an accomplice. (§ 1192.7, subd. (c)(8); Bueno, supra, 143 Cal.App.4th at p. 1508.)
"[I]f the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense. [Citations.] In such a case, if the statute under which the prior conviction occurred could be violated in a way that does not qualify for the alleged enhancement, the evidence is thus insufficient, and the People have failed in their burden." (Delgado, supra, 43 Cal.4th at p. 1066.) Since the base statutory elements of defendant's battery conviction were insufficient to prove that the crime was a serious or violent felony, the People were required to prove the additional great bodily injury allegation to establish that the crime qualified as strike offense.
Respondent argues the record alone is sufficient to show defendant committed battery with serious bodily injury in a manner that rendered that offense a serious or violent felony. Despite the lack of factual record, respondent contends the evidence was sufficient because defendant entered into the plea on the condition that the conviction would be considered a strike under section 969f.
"Under section 969f, subdivision (a), when the People believe that the defendant's offense is a serious felony, 'the facts that make the crime constitute a serious felony may be charged in the accusatory pleading' and '[i]f the defendant pleads guilty of the offense charged, the question whether or not the defendant committed a serious felony as alleged shall be separately admitted or denied by the defendant.' (Italics added.) The section was enacted in order to 'prequalify a crime as a serious felony' for purposes of the three strikes law. [Citation.] The section allows ' "the fact that a crime is a serious felony to be proven at the time the first crime is tried so that it may become a matter of record." ' [Citations.] Where the prosecution includes a serious felony allegation and the defendant pleads guilty or no contest, section 969f, subdivision (a), requires the defendant to admit or deny the allegation. [Citation.]" (Bueno, supra, 143 Cal.App.4th at p. 1509.)
In Bueno, the defendant previously had been charged with battery with serious bodily injury (§ 243, subd. (d)) with the following separate allegation: " 'NOTICE: The above offense is a serious felony within the meaning of . . . section 1192.7(c)(8).' " The defendant pled no contest to the battery charge, but did not admit the crime was a serious felony and no other evidence was offered to prove it was. (Bueno, supra, 143 Cal.App.4th at pp. 1507-1508.) The trial court nevertheless found true an allegation that the crime was a serious felony. (Id. at p. 1506.)
On appeal, the People contended "that in pleading no contest to the battery charge, Bueno admitted the offense was a serious felony because the information alleged that it was a serious felony within the meaning of section 1192.7, subdivision (c)(8)." (Bueno, supra, 143 Cal.App.4th at p. 1509.) The court disagreed. After discussing the requirements of section 969f, it reasoned "[t]here is no evidence in this record of compliance with section 969f, subdivision (a); that is, there is no evidence that Bueno admitted the serious felony allegation in the information. Absent such evidence, we must treat the allegation as dismissed." (Bueno, supra, at p. 1510.)
Defendant, unlike the defendant in Bueno, admitted that the conviction would be considered a strike after being advised of the consequences of entering a plea to a strike or serious felony. The purpose of a section 969f admission is to qualify a crime as a serious felony. (People v. Leslie (1996) 47 Cal.App.4th 198, 204.) If a defendant makes a section 969f admission as part of a guilty plea, he or she concedes an offense is a serious felony, and "the serious felony nature of the offense will become an explicit part of the record of conviction, leaving no room for confusion if and when the issue becomes relevant to the sentence for a subsequent felony." (Delgado, supra, 43 Cal.4th at p. 1072.)
Defendant alleges section 969f is inapplicable because the plea did not allege the underlying legal basis why the crime was a serious felony, and defendant only admitted that the conviction would be considered a strike as opposed to a serious felony. While it is true the plea does not reference the underlying conduct, the prosecution presented evidence defendant made an admission that the conviction was to be considered a strike. If we were to require the prosecution to produce evidence of the underlying basis of the conviction despite defendant's strike admission, it would contravene the purpose of section 969f. The Legislature's express purpose in enacting section 969f was " 'to avoid requiring a prosecutor to reprove [sic] a previous conviction when it is alleged that a defendant has a prior serious felony conviction.' " (People v. Leslie, supra, 47 Cal.App.4th at p. 204.) Accordingly, we find defendant's argument that the prosecution must admit evidence as to the legal basis supporting why the conviction was a strike is misplaced.
Defendant also contends that by admitting the conviction would serve as a strike did not provide sufficient evidence to support the conviction was a serious felony because a strike could be based on either a serious or violent felony. " '[The] trier of fact is entitled to draw reasonable inferences from certified records offered to prove a defendant suffered a prior conviction . . . .' " (Delgado, supra, 43 Cal.4th at p. 1066.) By entering a plea that the conviction would serve as a strike, it was reasonable for the court to infer the basis for which the conviction was a strike was that it was a serious felony and subject to a proper section 969f admission. The only appropriate inferences created by the plea was that the conviction was either a serious or violent felony, and therefore a strike. Further, the distinction is one without a difference with regard to the present offense. Battery with serious bodily injury may qualify as a violent felony under subdivision (c)(8) of section 667.5 or as a serious felony under subdivision (c)(8) of section 1192.7 based on the same conduct—personal infliction of great bodily injury on a person other than an accomplice. (See, e.g., People v. Moore (1992) 10 Cal.App.4th 1868, 1871.) Viewing the evidence of the prior conviction in the light most favorable to the prosecution, a rational trier of fact could infer from defendant's plea that he committed a serious felony and that section 969f served to prequalify a crime as such. (People v. Leslie, supra, 47 Cal.App.4th at p. 204.)
The California Supreme Court has cautioned that "confusion in future cases can be avoided if judgment records are prepared with utmost care and sensitivity to their possible relevance in later criminal proceedings" and that "the issue whether the conviction was for the serious or the nonserious form may thus have substantial penal consequences if the defendant suffers a subsequent felony conviction, it is necessary that the abstract of judgment specify, with scrupulous accuracy, the crime of which the defendant was actually charged and convicted." (Delgado, supra, 43 Cal.4th at p. 1072.) Had the trial court provided further clarity, confusion could have been avoided in this case. Regardless, we conclude substantial evidence supports the trial court's finding that defendant's prior conviction for assault was a strike within the meaning of the three strikes law.
B. Failure to Obtain Waiver to Right to Jury Trial
Defendant contends his right to a jury trial was violated because he did not personally waive his right to a jury trial on the bifurcated prior conviction allegations.
Defendant's counsel requested a court trial on the prior convictions. Respondent notes defendant did not object after the court discharged the jury after finding him guilty of the underlying offense, but does not dispute the trial court failed to obtain an express, personal waiver from defendant.
The state has created a statutory right to a jury trial on prior conviction allegations. (§§ 1025, 1158; People v. Epps (2001) 25 Cal.4th 19, 23 [recognizing state statutory right to jury trial on prior conviction allegations]; People v. Vera (1997) 15 Cal.4th 269, 272 [criminal defendant has statutory right to jury trial on prior conviction and prison term allegations].) The state statutory right to jury trial, however, does not require an express, personal waiver by defendant. (Vera, at pp. 277-278; People v. French (2008) 43 Cal.4th 36, 46.) Thus, having obtained a waiver from defense counsel, there was no violation of defendant's statutory right to jury trial. Furthermore, if a defendant fails to object to the dismissal of the jury or the commencement of a court trial where only the statutory right to jury trial applies, he forfeits the right to raise the error on appeal. (People v. Grimes (2016) 1 Cal.5th 698, 737-738 [defendant forfeited statutory right to jury trial on prior convictions and prior prison terms by failing to object in trial court]; Vera, supra, 15 Cal.4th at p. 278 ["Absent an objection to the discharge of the jury or commencement of court trial, defendant is precluded from asserting on appeal a claim of ineffectual waiver of the statutory right to jury trial of prior prison term allegations."]; People v. Saunders (1993) 5 Cal.4th 580, 589-590.) Here, there was no objection by defendant to the court hearing the enhancement allegations. Finally, even assuming statutory error occurred and was preserved for appeal, any error was harmless under People v. Watson (1956) 46 Cal.2d 818, 836, as defendant has not shown that it is reasonably probable a more favorable result would have been reached had these enhancements been tried by a jury. The court found the facts true from certified court records of defendant's prior convictions. There is no reason to believe a jury would have viewed the court records any differently. Accordingly, it is not reasonably likely a jury would have reached a different conclusion. (See People v. Epps, supra, 25 Cal.4th at pp. 29-30 [fact of prior convictions was presumptively established from official government documents clearly describing alleged convictions].)
Defendant does not make a claim of prejudicial error, but, instead, contends automatic reversal is required under People v. Blackburn (2015) 61 Cal.4th 1113 and People v. Ernst (1994) 8 Cal.4th 441. Neither case is applicable as they dealt with the wholesale denial of the right to jury trial. (Blackburn, at pp. 1132-1133 [denial of right to jury trial "on the entire cause in a civil commitment proceeding" is a " 'miscarriage of justice' " and requires reversal without inquiry into the strength of the evidence]; Ernst, supra, at pp. 444, 449 [failure to obtain personal waiver from defendant as to both guilt and sanity phases of criminal trial requires the judgment be reversed].) The instant case involves only the right to jury trial on enhancement allegations. In sum, there was no error as to defendant's statutory right to jury trial, and even if there was, he waived the issue and any error was harmless.
C. Limitation of defense counsel's closing argument
During closing argument, the court prevented defense counsel from presenting argument that the victim of the crime embellished her testimony to ensure defendant would be convicted of a violent crime and receive a greater punishment. Defendant contends the trial court violated his federal rights under the Fourteenth Amendment of the United States Constitution to present a complete defense.
1. Legal Standards
Criminal defendants enjoy a constitutional right to have counsel present a closing argument to the trier of fact. (People v. Simon (2016) 1 Cal.5th 98, 147; see Herring v. New York (1975) 422 U.S. 853, 858 ["There can be no doubt that closing argument for the defense is a basic element of the adversary factfinding process in a criminal trial."].) This right, however, is subject to certain limits. (Simon, supra, at pp. 147-148.) A trial court may "impose reasonable time limits" and may "ensure that argument does not stray unduly from the mark." (People v. Marshall (1996) 13 Cal.4th 799, 854-855.) Trial courts have broad discretion to control the duration and scope of closing arguments. (See Herring v. New York, supra, at p. 862 ["In all these respects [the trial court] must have broad discretion."].) The trial judge may terminate argument when continuation would be repetitive or redundant. (Ibid.) Further, a defendant's rights to due process and to present a defense do not include a right to present to the jury a speculative, factually unfounded inference. (People v. Mincey (1992) 2 Cal.4th 408, 442.) We review a trial court's decision to limit defense counsel closing argument for abuse of discretion. (Simon, supra, 1 Cal.5th at p. 147.)
2. Analysis
At closing argument, defense counsel conceded that the evidence proved beyond a reasonable doubt defendant committed theft. Counsel instead focused on trying to convince the jury that defendant was not guilty of robbery because he did not use force. Security footage of the incident did not capture the use of force. Defense counsel argued inconsistences in Young's testimony, specifically that she had not previously mentioned the use of force during the robbery. Young did not tell the officer that interviewed her two separate times about being hit in the head or being shoved to the ground. Instead she complained to the officer about injuries to her right arm, leg, and body. Counsel described how Young refused to admit she had jumped on defendant's back even though there was video footage of her doing so. After pointing out that the video depicted Young falling off defendant's back to the ground, counsel argued that Young may have embellished how she fell to the ground by testifying she was shoved. Based on the video footage depicting Young falling off defendant, defense counsel argued it was not likely defendant stopped to physically assault Young before fleeing the scene. Based on the lack of evidence from the surveillance video, Young's changed testimony, and her lack of any physical injury, defense counsel argued there was reasonable doubt as to defendant's use of force.
As described, defense counsel was able to present significant argument as to why Young's testimony was unreliable and the prosecution failed to show that defendant used force or fear. The jury was made aware that Young's testimony regarding defendant's use of force changed over time and was not supported by the security footage. However, the trial court limited his argument regarding Young's alleged animus towards defendant as a reason to fabricate or embellish her testimony. No evidence was presented to support such a theory, and defendant had no right to present the jury with a speculative, factually unfounded inference. (People v. Mincey, supra, 2 Cal.4th at p. 442.)
We have difficulty concluding the trial court abused its "great latitude" and "broad discretion" in preventing further argument that Young fabricated evidence that defendant used force to ensure a more severe punishment. (Herring v. New York, supra, 422 U.S. at p. 862.)
Even if we assume the trial court's ruling was improper, we conclude it was harmless. We accept without deciding defendant's claim is subject to the harmless-error standard of Chapman v. California (1967) 386 U.S. 18 (Chapman) because it implicates the federal constitutional right to assistance of counsel. (Herring v. New York, supra, 422 U.S. at p. 865.) Under Chapman, an error is harmless if it appears "beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." (Chapman, supra, at p. 24; see People v. Aranda (2012) 55 Cal.4th 342, 367.)
The trial court's ruling did not contribute to the verdict. The ruling did not prevent the jury from forming any reasonable inferences based on evidence before it as to why Young's testimony was inconsistent, and that she testified to greater physical force at trial than when initially reporting it to law enforcement. Based on this record, we are satisfied beyond a reasonable doubt that the jury would have returned the same verdict even if the prosecutor's objection had not been sustained. (See Chapman, supra, 386 U.S. at p. 24.)
DISPOSITION
The judgment is affirmed.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
MEEHAN, J.