Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kings County, Super. Ct. No. 06CM2282 & 06CM4567, Peter M. Schultz, Judge.
David H. Goodwin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Amanda D. Cary, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
At a trial confirmation hearing, Steven Moroles asked the trial court to consider a plea agreement. Solely on the ground of untimeliness, the trial court refused. Days later, a jury found him guilty. He appealed, arguing that the trial court’s refusal was an abuse of discretion and raising five other issues.
The record was not clear whether a rule prohibiting last-minute plea agreements existed of which Moroles and his trial attorney had notice, so we reversed the judgment, remanded the matter for a hearing solely on that issue, and in deference to the common law doctrine of ripeness addressed none of his other issues. (People v. Moroles (May 29, 2008, F053387) [nonpub. opn.].)
The hearing on remand showed that no rule existed but that a long-standing superior court policy did exist, of which Moroles and his trial attorney were aware, precluding the acceptance of plea agreements after the trial readiness hearing absent unusual circumstances. The trial court reinstated the judgment. Again, Moroles appeals.
After both our opinion and the hearing on remand, a new local rule of court entitled “Negotiated Plea Agreements” was adopted effective January 1, 2009: “Absent exceptional circumstances, the Court will not accept a negotiated plea agreement in any case after a final trial readiness hearing has been held.” (Kings County Local Rules of Court, rule 507.)
On December 15, 2008, Moroles filed a motion requesting that we take judicial notice of the record on appeal in People v. Moroles (F053387). On December 16, 2008, we granted his request. On January 26, 2009, the Attorney General filed the respondent’s brief. A footnote in the respondent’s brief made the same request. We deny the Attorney General’s request as moot and draw his attention to the requirement for a party requesting judicial notice by a reviewing court to, inter alia, “serve and file a separate motion.” (Cal. Rules of Court, rules 8.252(a)(1), 8.366(a); see Patterson Flying Service v. California Dept. of Pesticide Regulation (2008) 161 Cal.App.4th 411, 419, fn. 2, citing Canal Ins. Co. v. Tackett (2004) 117 Cal.App.4th 239, 243.)
ISSUES ON APPEAL
Moroles argues that the trial court’s rejection of the plea agreement was an abuse of discretion even though he and his trial attorney both knew of the trial court’s policy prohibiting last-minute plea agreements. He challenges CALCRIM Nos. 220 and 300 separately and CALCRIM Nos. 223 and 224 jointly and argues that even if no single instructional error was prejudicial the errors cumulatively require reversal. Finally, he argues that his trial attorney rendered ineffective assistance of counsel if the absence of objections to the instructions he challenges on appeal forfeited his right to appellate review.
BACKGROUND
On May 23, 2006, the Kings County Narcotics Task Force (NTF) executed a search warrant on Moroles’s apartment in Lemoore, arrested him, and seized, inter alia, a Smith and Wesson.38 revolver and some methamphetamine. On August 7, 2006, the district attorney filed an information charging him with possession of methamphetamine for sale (Health & Saf. Code, § 11378) and alleging, inter alia, a personal-arming-with-a-firearm allegation (Pen. Code, § 12022, subd. (c)), a controlled-substance-prior allegation (Health & Saf. Code, § 11370.2, subd. (c)), and a commission-of-a-felony-while-on-bail allegation (Pen. Code, § 12022.1). (Case Number 06CM2282.)
On October 12, 2006, Moroles told a Lemoore police officer responding to his apartment on a shots-fired call that someone “had shot at his house and his family.” He gave the officer consent to enter his apartment to collect evidence about the shooting. The officer found, inter alia, methamphetamine and ammunition. Shortly afterward, NTF officers who secured and executed a search warrant to broaden the scope of the search found more methamphetamine. On November 3, 2006, the district attorney filed an information charging him with possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), possession of methamphetamine for sale (Health & Saf. Code, § 11378), and possession of ammunition by a person prohibited from possessing a firearm (Pen. Code, § 12316, subd. (b)(1)) and alleging a controlled-substance-prior allegation (Health & Saf. Code, § 11370.2, subd. (c)) and two commission-of-a-felony-while-on-bail allegations (Pen. Code, § 12022.1). (Case Number 06CM4567.)
On June 15, 2007, the trial court consolidated both cases for trial. On June 18, 2007, trial by jury commenced. On June 20, 2007, in Case Number 06CM2282, the jury found Moroles guilty as charged and found all allegations true and in Case Number 06CM4567 found him guilty of possession of methamphetamine and possession of ammunition by a person prohibited from possessing a firearm, found him not guilty of possession of methamphetamine for sale, and found both allegations true.
On July 20, 2007, the trial court imposed an overall aggregate term of 14 years four months – an aggregate term of nine years in Case Number 06CM2282 (a two-year midterm for possession of methamphetamine for sale plus a consecutive four-year midterm for the personal-arming-with-a-firearm enhancement plus a consecutive three-year term for the controlled-substance-prior enhancement) and a consecutive aggregate term of five years four months in Case Number 06CM4567 (a consecutive one-third-the-midterm eight-month term for possession of methamphetamine plus a consecutive one-third-the-midterm eight-month term for possession of ammunition by a person prohibited from possessing a firearm plus a consecutive two-year term on each of the two commission-of-a-felony-while-on-bail enhancements).
DISCUSSION
1. Refusal of Plea Agreement
Moroles argues that the trial court’s rejection of the plea agreement was an abuse of discretion even though he and his trial attorney both knew of the trial court’s policy prohibiting last-minute plea agreements. The Attorney General argues the contrary.
Before addressing the law, we turn to the record. On December 1, 2006, the prosecutor made Moroles an offer that was discussed in chambers and that was to remain open until January 5, 2007. The terms of the offer are not in the record. Presumably he rejected the offer, as on March 1, 2007, the prosecutor again made him an offer that he rejected on March 2, 2007. The terms of the offer, as before, are not in the record.
At the trial readiness hearing on June 1, 2007, the prosecutor confirmed an offer to Moroles of “nine years, four months,” which he characterized as “substantially reduced from the nearly 30 years that he’s looking at. It sounds as though he may be rejecting that offer and it won’t be renewed after today.” “So today is his last chance,” the prosecutor said, and “if he doesn’t take it today, the offer is withdrawn. And we’re ready for trial.” Tacitly rejecting the offer, Moroles’s trial attorney replied, “We will be confirming.” The trial court inquired, “All right, you’re both announcing ready for trial, then?” Moroles’s trial attorney replied, “Correct.” The trial court confirmed the calendaring of both cases “for the 15th of June for confirmation and the 18th of June for trial.”
At the trial confirmation hearing on June 15, 2007, the trial court, at the prosecutor’s request, dismissed the criminal-street-gang allegation originally in the information and inquired if counsel were ready for trial on the following court day, June 18, 2007. The prosecutor replied, “Yes, your Honor.” Moroles’s trial attorney replied, “The People and I had worked out a possible settlement where the total term would have been seven years, four months, I had not yet conveyed that to my client, and he is receptive to that this morning. I believe, your Honor, that it is warranted because of the dismissal of the gang allegation[] that he would get some benefit from the original approximate – I believe it was nine years, four month, offer –”
The trial court interjected, “The Court doesn’t take last minute plea agreements except in exceptional circumstances. I don’t see any exceptional circumstances that would merit that.” The trial court elaborated, “If we do that, then everybody wants to wait till the last minute to try to solve – resolve their case, and we summon jurors needlessly. Presumably Mr. Moroles was well aware of this rule all along and the time to settle the case was two weeks ago before we summoned a jury. At this point we’re going to trial.”
At the hearing on remand, the following ensued:
“THE COURT: All right, Mr. Moroles is back in court today. The Court has been instructed to conduct a hearing on issues concerning the existence of, quote, a valid rule limiting the time within which the Court may consider plea bargains in felony cases and whether Mr. Moroles and his attorney had notice of such a rule. So that’s why we’re here.
“Is there any – well, first, the Court notes that there is not a formal Rule of Court to that effect, but there is a long standing policy in the Kings County Superior Court to not accept plea agreements after the trial readiness hearing absent there being unusual circumstances. The reason for that rule is that, in Kings County, we do not have standing jury pools, but rather, at the trial readiness hearing, a determination is made as to the need to summon a jury for a particular trial. And the purpose of the practice of requiring plea bargains to occur at or before the trial readiness hearing is to avoid unnecessarily summoning jurors for cases that will resolve. It is the Court’s experience over many many years that this practice results in avoiding inconvenience to witnesses and lawyers. It avoids overburdening the Court with numerous cases on its trial calendar which would not otherwise resolve until the time of trial. And it results in reducing the inconvenience to the citizens of the county who would otherwise be summoned to court for jury duty on cases that do not end up going to trial.
“Now, I guess what we’re left with is whether there is any issue of whether or not counsel for Mr. Moroles and Mr. Moroles were aware of the Court’s practice of not accepting plea agreements absent unusual circumstances after the trial readiness hearing.
“Is there any request for an evidentiary hearing on it?
“[MOROLES’S TRIAL ATTORNEY]: No, your Honor. Even though the rule is not written, we’re very familiar with the rule. And I can state that, for myself, I was aware of that rule and Mr. Moroles agrees.
“(Whereupon, [Moroles’s trial attorney] confers with his client.)
“[MOROLES’S TRIAL ATTORNEY]: Is it correct, then, that you were aware of that rule, Mr. Moroles?
“THE DEFENDANT: Yes.
“THE COURT: Okay. So if I understand correctly, [Moroles’s trial attorney], you and Mr. Moroles were aware of that I guess we should call it practice rather than a rule since it’s not a formal rule.
“[MOROLES’S TRIAL ATTORNEY]: I call it a formal rule even though it’s not written, your Honor. But, yes, we’re aware of that. That’s what we both stated.
“THE COURT: And you were aware of it at the time of trial?
“[MOROLES’S TRIAL ATTORNEY]: Yes, as we both so stated.”
On appeal, the crux of Moroles’s abuse of discretion argument is that the trial court “relied on an improper reason in rejecting the plea.” Elaborating, he says “the question must be asked whether a firm, unbending Rubicon based on certain stages of the trial process being reached is a proper standard for a trial court to employ as a near absolute in formulating its policies regarding the acceptance or rejection of plea bargains.” The costs of the trial court’s not wanting to take a “last minute deal,” he argues, were that “three full days and two court days were required to resolve the case at the trial court level. This involved the state paying for the trial court judge, the court staff, two attorneys, twelve jurors, [and] five days of transporting appellant to court.”
Additional costs to the state, he argues, are “the preparation of the record on appeal, the efforts of counsel for both appellant, albeit underpaid, and counsel for respondent, including supervision by the Office of the Attorney General and the Central California Appellate Program. It will then take time that could have been spent on other cases by three Justices of the Court of Appeal and their staff.” No matter “who prevails at this stage,” he predicts, “the clerks of seven Supreme Court Justices will peruse a Petition for Review.” The result of the trial court’s “irrational policy based on an arbitrary deadline,” he argues, “is clearly an abuse of discretion.”
Not so, the Attorney General argues. “Plea bargaining is an accepted process” with benefits for “both the prosecution and defense,” he insists, citing People v. West (1970) 3 Cal.3d 595. He notes that a trial court “may reject a plea bargain as untimely under a local rule of court that prohibits the acceptance of plea bargains after the trial readiness conference,” citing People v. Cobb (1983) 139 Cal.App.3d 578. We agree. The rule is settled “that the competing interests of accurately scheduling court calendars and judiciously taking pleas to avoid trial can be accommodated while reasonably restricting pleas to certain time periods.” (Id. at p. 585.) As the hearing on remand made abundantly clear, a long-standing Kings County Superior Court policy did exist, of which Moroles and his trial attorney both were aware, authorizing the trial court to refuse to accept his plea agreement after the trial readiness hearing absent unusual circumstances, of which the trial court found none. On that record, the trial court’s rejection of his plea agreement was not an abuse of discretion.
2. CALCRIM No. 220
Moroles challenges the constitutionality of CALCRIM No. 220 (Reasonable Doubt). The Attorney General argues that the instruction is constitutionally sound.
Moroles focuses his challenge on one sentence of the instruction: “You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial.” (CALCRIM No. 220.) “As worded,” he argues, the instruction “improperly implies bias against the defendant for some reasons may be permissible.”
Elsewhere, however, the charge to the jury instructed, without limitation, “Do not let bias, sympathy, prejudice, or public opinion influence your decision.” (CALCRIM No. 200.) Our duty is to look at the instructions as a whole, not in isolation. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) So read, CALCRIM No. 220 correctly instructed the jury. (People v. Ibarra (2007) 156 Cal.App.4th 1174, 1185 (Ibarra); People v. Anderson (2007) 152 Cal.App.4th 919, 929 (Anderson).)
3. CALCRIM Nos. 223 and 224
Moroles challenges the constitutionality of CALCRIM Nos. 223 and 224. The Attorney General argues that the instructions are constitutionally sound.
The crux of Moroles’s challenge to CALCRIM No. 223 (Direct and Circumstantial Evidence: Defined) is that the instruction “could erroneously leave the jurors with the impression they are not free to give specific circumstantial evidence greater weight than other specific direct evidence or vice versa.” He focuses his challenge on one sentence of the instruction: “Neither is entitled to any greater weight than the other.” (CALCRIM No. 223.) A reasonable juror, he argues, could interpret that sentence as the judge telling the jury that evidence a juror might believe is circumstantial is not entitled to any greater weight than evidence a juror believes is direct. Since “members of the jury are neither attorneys nor judges,” he contends the instruction “usurps the function of the jury.” We disagree. “Reasonably read, the instruction cautions only that neither direct nor circumstantial evidence should be accorded greater weight simply because it is direct or circumstantial evidence.” (Anderson, supra, 152 Cal.App.4th at p. 930; accord, Ibarra, supra, 156 Cal.App.4th at p. 1186.)
One aspect of Moroles’s challenge to CALCRIM No. 224 (Circumstantial Evidence: Sufficiency of Evidence) is that the instruction “improperly suggests to the jurors” that the principles of burden of proof and reasonable doubt apply not to direct evidence but only to circumstantial evidence. Since the principles set forth in CALCRIM No. 224 apply to direct and circumstantial evidence alike, he argues, “the jurors should be so instructed.” Implicit in his argument is the assumption that direct and circumstantial evidence are similarly situated, but that is not so. Circumstantial evidence involves a two-step process – first, the parties present evidence and, second, the jury decides which reasonable inference or inferences, if any, to draw from the evidence – but direct evidence stands on its own. With reference to direct evidence, then, no need ever arises to decide if an opposing inference suggests innocence. (Anderson, supra, 152 Cal.App.4th at p. 931; accord, Ibarra, supra, 156 Cal.App.4th at p. 1187.)
Another aspect of Moroles’s challenge to CALCRIM No. 224 is that the instruction errs “by couching the jury’s conclusions in terms of either ‘innocence’ or ‘guilt.’” He relies on a case characterizing language like that as a “minor anomaly,” that applauds a defense request to substitute “lack of finding of guilt” for “innocence” in the instruction, and that finds no prejudice since other standard instructions clarified the law adequately. (People v. Han (2000) 78 Cal.App.4th 797, 809 (Han).) For a defendant to be found not guilty, of course, the evidence as a whole need not prove innocence but need only fail to prove guilt beyond a reasonable doubt, so the basis of a not-guilty verdict is an insufficiency of the evidence of guilt. However, the issue is different with reference to specific items of evidence, which may fall into one of three categories – tending to prove guilt, tending to prove innocence, or having no bearing on guilt or innocence. Evidence in the latter category, which supports neither a guilty nor a not guilty verdict, is irrelevant to the case, so a specific item of evidence, direct or circumstantial, is relevant to the jury’s ultimate determination only by tending to prove either guilt or innocence. (Anderson, supra, 152 Cal.App.4th at p. 931.) Han’s rationale is not persuasive.
The final aspect of Moroles’s challenge to CALCRIM No. 224 is that the instruction errs by defining the burden of proof “in terms of being ‘convinced.’” In relevant part, the instruction reads, “Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt” and “before you may rely on circumstantial evidence to find the defendant guilty, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the defendant is guilty.” (CALCRIM No. 224, italics added.) The first use of the word simply confirms the constitutional burden of proof beyond a reasonable doubt. The second instance of the word addresses only the threshold inquiry that the jury, before considering circumstantial evidence to find the defendant guilty, must find that the only reasonable inference from the evidence is defendant’s guilt. Neither use of the word is erroneous. (Anderson, supra, 152 Cal.App.4th at p. 934.)
4. CALCRIM No. 300
Moroles challenges the constitutionality of CALCRIM No. 300. The Attorney General argues that the instruction is constitutionally sound.
In full, CALCRIM No. 300 (All Available Evidence) provides: “Neither side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant.” Moroles argues that the instruction might have persuaded the jury to view “as an admission or concession of guilt” his decision not to present a defense. We disagree. Elsewhere in the charge to the jury, the trial court instructed, “A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt.” (CALCRIM No. 220.) People v. Simms (1970) 10 Cal.App.3d 299 rebuffed a like challenge to similar language in an analogous instruction. (Id. at p. 313.)
On the record here, there is no reasonable likelihood that the jury misunderstood CALCRIM No. 300. (Ibarra, supra, 156 Cal.App.4th at pp. 1189-1190; Anderson, supra, 152 Cal.App.4th at pp. 937-938; see Estelle v. McGuire (1991) 502 U.S. 62, 72-73 & fn. 3; People v. Clair (1992) 2 Cal.4th 629, 663.) So we apply the presumptions that the jurors correlated, followed, and understood the instructions in the charge to the jury. (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
5. Cumulative Error
Moroles argues that even if no single instructional error was prejudicial “the numerous errors cumulatively require reversal.” The Attorney General argues the contrary. Since Moroles fails to persuade us that any instructional error occurred, his cumulative error argument is meritless. (People v. Heard (2003) 31 Cal.4th 946, 982.)
6. Forfeiture
Moroles argues that his trial attorney rendered ineffective assistance of counsel if the absence of objections to the instructions he challenges on appeal forfeited his right to appellate review. The Attorney General argues that none of the instructions Moroles challenges was erroneous. We agree with the Attorney General. Since the law neither does nor requires idle acts, an attorney has no duty to make a futile objection, and the absence of a futile objection from the record does not show ineffective assistance of counsel. (Civ. Code, § 3532; see People v. Anderson (2001) 25 Cal.4th 543, 587.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Kane, J.