Opinion
F049633
12-13-2006
THE PEOPLE, Plaintiff and Respondent, v. VICTOR LUCIANO NARANJO, Defendant and Appellant.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Assistant Attorney General, J. Robert Jibson and Raymond L. Brosterhous II, Deputy Attorneys General, for Plaintiff and Respondent.
Following a jury trial, Victor Luciano Naranjo (appellant) was convicted of petty theft (Pen. Code, § 484) and simple assault (§ 240), a lesser included offense of assault by means of force likely to produce great bodily injury. Because appellant admitted a prior burglary conviction before trial, the jurys petty theft verdict was, in fact, a finding that appellant had violated section 666, petty theft with a prior conviction. Appellant was acquitted of robbery, as well as the lesser included offense of grand theft person (§§ 211, 487, subd. (c)). In a bifurcated proceeding, appellant admitted that he had a prior strike. The trial court sentenced appellant to four years in state prison: the middle term of two years for the petty theft with a prior conviction, doubled pursuant to the three strikes law (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code unless otherwise stated.
Appellant contends that the trial court prejudicially erred when it (1) shackled him at trial, (2) precluded him from impeaching the key prosecution witness with his parole status, and (3) gave CALJIC No. 2.62. He also contends that cumulative error occurred, that he was punished for exercising his right to a jury trial, and that the trial court abused its discretion in refusing to strike his prior strike conviction. We disagree with appellants contentions and affirm.
FACTS
On the evening of August 11, 2005, at the corner Belmont and Clark in Fresno, Richard Kevorkian was straddling his bicycle and talking on his cell phone when he saw appellant walking and then heard footsteps running toward him. Appellant came within a foot of Kevorkian and asked "if [he] had a problem." Kevorkian, who did not know appellant, said he was "just trying to go home." Appellant then punched Kevorkian in the face with his closed fist. Kevorkian blacked out and fell to the ground, dropping his cell phone. When Kevorkian came to, appellant was kicking and punching him. Appellant picked up the cell phone and placed it into his pocket. When a marked police car drove by, appellant started to walk away. As he did so, he threw the cell phone toward the roof of a nearby building.
Police Officer Miguel Alvarez was on patrol with Officer Loren Casten when he observed appellant standing near Kevorkian. Kevorkian was attempting to hold the bicycle between himself and appellant, who had his fists balled up. The officer made a U-turn to return to the scene. As he did so, he saw appellant throw an item onto a roof top. The officer detained appellant at the scene.
Officer Alvarez spoke to Kevorkian, who was crying and had a large lump on his forehead. Kevorkian told the officer that appellant approached him and asked him what he was looking at before punching him in the forehead. The officer also spoke to appellant, who claimed Kevorkian was "mad dogging" him and then swung at him. Appellant claimed he punched Kevorkian only after Kevorkian took a swing at him. Appellant claimed not to know anything about a cell phone.
The cell phone was located in the parking lot of a nearby business. After appellant was Mirandized, he told officers he had lied about the cell phone because he did not think they would be able to locate it.
Miranda v. Arizona (1966) 384 U.S. 436.
At the police station, appellant told the officers he acted in self-defense when he swung at Kevorkian. He claimed he took the cell phone, but did not place it in his pocket. Instead, he threw it onto the roof to break it.
Kevorkian sustained injuries which kept him from work for two and a half weeks. As a result, he lost his job.
Kevorkian admitted at trial that he had three prior felony convictions for theft.
Defense
Appellant testified in his own behalf. He testified that he was walking home when he saw Kevorkian sitting on his bike. Kevorkian gave him a "mean look," asked "whats up," and swung at him. In response, appellant swung twice, hitting him at least once. Appellant denied knocking Kevorkian unconscious. Kevorkian dropped his cell phone, and he tried to hit appellant with his bicycle. Appellant became angry and threw Kevorkians cell phone to break it. He acknowledged lying to the officer about not having Kevorkians phone. Appellant acknowledged a prior burglary conviction.
DISCUSSION
1. Did the trial court err prejudicially by shackling appellant?
Appellant contends the trial court erred when, based on "the bailiffs whim," the court allowed appellant to be tethered or restrained under the counsel table during trial. We disagree.
Prior to trial, defense counsel requested that appellant be "unshackled and unhandcuffed for the proceedings," and if not both, "at least unhandcuffed so that he may assist me in his defense." The trial court asked the bailiff whether he perceived any security concerns. The bailiff first answered that there were none, and the court ordered appellants "hands and feet" not be shackled during trial. The bailiff then stated that two deputies would be needed if appellant was both unshackled and unhandcuffed, but only one deputy would be needed if appellant was tethered under the table. The court responded: "Whatever your policy is. If you have the availability for a second deputy, then he can be untethered under the table. If there is no availability of a second deputy, then he can be tethered under the table provided that its done in a way that is not visible to the jurors."
When a criminal defendant is in shackles during a jury trial, the defendants right to a fair trial may be compromised. (People v. Duran (1976) 16 Cal.3d 282, 290-292; People v. Mar (2002) 28 Cal.4th 1201, 1216.) Accordingly, a criminal defendant may not be restrained in the jurys presence unless the defendant exhibits violent behavior, threatens violence or escape, or a manifest need arises in the courtroom which is a matter of record. (People v. Slaughter (2002) 27 Cal.4th 1187, 1213, citing People v. Duran, supra, at pp. 290-291.) Failure to timely object to restraints forfeits the issue for appeal. (People v. Majors (1998) 18 Cal.4th 385, 406, citing People v. Tuilaepa (1992) 4 Cal.4th 569, 583.)
We review a trial courts ruling requiring the use of restraints under an abuse of discretion standard. (People v. Mar, supra, 28 Cal.4th at p. 1217; People v. Alvarez (1996) 14 Cal.4th 155, 192.) A court abuses its discretion if it orders the use of physical restraints on a defendant when it is not manifestly necessary. (People v. Slaughter, supra, 27 Cal.4th at p. 1213.) A trial court is obligated to independently determine what facts, if any, establish a manifest need to place a defendant in restraints in the courtroom and to state such facts on the record. (People v. Mar, supra, at pp. 1217-1218; People v. Duran, supra, 16 Cal.3d at p. 293 & fn. 12.) In doing so, the court may initiate "`whatever procedures the court deems sufficient," outside the presence of the jury, to make its due process determination of whether restraints are necessary. (People v. Mar, supra, at p. 1217.) No formal hearing is required, but the court may not abdicate its role of determining the facts to security personnel or law enforcement. (Id. at pp. 1217-1218.) Nor may it consider rumor or innuendo. (Id. at p. 1218.) The record must show that the court itself ascertained and considered what facts and circumstances existed in the courtroom, concerning the defendants nonconforming conduct, that demonstrated a manifest need to restrain the defendant. (Ibid.)
In People v. Jacla (1978) 77 Cal.App.3d 878, the defendant was restrained in handcuffs and leg irons throughout his trial. (Id. at pp. 881-883.) The appellate court concluded the trial court abused its discretion in allowing the defendant to be shackled because, among other things, "[t]he trial court did not exercise its discretion; it delegated to the bailiff the question of what restraints, if any, were appropriate." (Id. at p. 885.) The court explained its ruling as follows:
"The record shows that the bailiff suggested the use of leg irons only. Counsel for [the defendant] objected to any physical restraints. The trial court decided the matter by saying to the bailiff: `You may use your discretion to keep a certain amount of security. Whatever you are satisfied you are safe with, all right. Nothing further was said about what restraints should or would be imposed. [¶] It might well have been appropriate to solicit the opinion of the bailiff, the person responsible for the security of the courtroom, in the course of a judicial determination as to what restraints, if any, were necessary. But, the determination to impose restraints and the nature of the restraints to be imposed are judicial functions to be discharged by the court, not delegated to a bailiff. [Citation.]" (Ibid.)
Here, the record is unclear exactly why the restraint issue, except as a matter of course, was brought to the courts attention. There is no evidence in the record that appellants conduct created any need for restraint. But the court did address the issue and held a hearing before making its determination, which we can review. It is clear from the record that the court made its decision, of whether or not appellant would be tethered, on the availability of a second deputy. While the bailiffs opinion about courtroom security was asked, the bailiff was not given leeway to decide when and what type of restraints to use. Instead, the trial court announced the parameters to be used, based on the "availability" of a second deputy.
We note that defense counsel did not object to this reasoning. And, in fact, it was defense counsel who first suggested that, if appellant could not be both unshackled and unhandcuffed during trial, he at least be unhandcuffed, which is what occurred.
In any event, even were we to conclude that it was error to restrain appellant, we would find no prejudice. Our Supreme Court has stated: "[W]e have consistently held that courtroom shackling, even if error, was harmless if there is no evidence that the jury saw the restraints, or that the shackles impaired or prejudiced the defendants right to testify or participate in his defense." (People v. Anderson (2001) 25 Cal.4th 543, 596, citing, e.g., People v. Majors, supra, 18 Cal.4th at p. 406 & People v. Coddington (2000) 23 Cal.4th 529, 650-651, overruled on other grounds in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
Here, as appellant concedes, there is no evidence that the jurors saw the restraints. In fact, following a jury instruction conference, the trial court stated that defense counsel had withdrawn an earlier request for CALJIC No. 1.04, concerning physical restraints, "based upon the fact that the jurors have not been told, nor has it been obvious to them, that [appellant] has been restrained." Nor is there anything in the record that demonstrates the restraints in fact impaired appellants ability to participate at trial or prejudiced his right to testify, which he did in his own behalf.
Appellant concedes that California cases have held that the Watson (People v. Watson (1956) 46 Cal.2d 818) standard of prejudice applies when the jury does not see the restraints. But appellant, relying on the recent United States Supreme Court decision in Deck v. Missouri (2005) 544 U.S. 622, urges this court to determine that restraint of appellant was reversible per se, or, in the alternate, that the prejudice standard set forth in Chapman v. California (1967) 386 U.S. 18 is appropriate.
The defendant in Deck was convicted of capital murder and sentenced to death. His sentence was set aside and, at a new sentencing proceeding, he was shackled with leg irons, handcuffs, and a belly chain. The trial court overruled counsels repeated objections to the shackles, and the defendant was again sentenced to death. (Deck v. Missouri, supra, 544 U.S. at p. 625.) The court stated:
"We hold that the Constitution forbids the use of visible shackles during the penalty phase, as it forbids their use during the guilt phase, unless that use is `justified by an essential state interest —such as the interest in courtroom security—specific to the defendant on trial. [Citations.]" (Id. at p. 624.)
The court further held that where a trial court, without adequate justification, orders the defendant to wear shackles that will be seen by the jury, "the defendant need not demonstrate actual prejudice to make out a due process violation." (Deck v. Missouri, supra, 544 U.S. at p. 635.) Instead, the state must prove "`beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained." (Ibid., quoting Chapman v. California, supra, 386 U.S. at p. 24.)
Deck states that, absent a showing of need for restraints, there are three fundamental reasons for the prohibition on shackling a defendant: (1) "[v]isible shackling undermines the presumption of innocence"; (2) the use of shackles interferes with a defendants ability to communicate with defense counsel and participate in his or her own defense by, for instance, choosing whether to take the witness stand on his or her own behalf; and (3) judges must maintain a dignified courtroom, which includes respectful treatment of a defendant. (Deck v. Missouri, supra, 544 U.S. at pp. 630-632.)
Appellant contends that, because two of the three reasons set forth in Deck "have nothing to do with whether the jury sees the restraints, but are concerned with respect for our system of justice," trial courts "will continue to be free to ignore the basic constitutional and human right of a defendant to appear at trial without being chained," unless the reversible per se analysis is adopted. Appellant urges this court institute a policy of automatically reversing the judgment of conviction in any case where a defendant is illegally restrained. As an intermediate appellate court, we are not at liberty to adopt such a policy even were we otherwise inclined to do so. Pursuant to binding California Supreme Court precedent, reversal is warranted only on a showing "that physical restraints impaired the fairness of defendants trial and thus caused prejudice." (People v. Anderson, supra, 25 Cal.4th at pp. 595-596.)
In the alternative, appellant contends that the appropriate standard of review is set forth in Chapman v. California, supra, 386 U.S. 18, as used in Deck, and that respondent must show any error was harmless beyond a reasonable doubt. We disagree. As explained in People v. Jackson (1993) 14 Cal.App.4th 1818, because shackling affects the presumption of innocence, if a defendant is restrained and the jury sees the defendant in this condition, (as we note was the case in Deck), the error is of constitutional significance and is tested under the Chapman standard. But if the jury does not see the defendant restrained, as here, "[t]he potential effect on the presumption of innocence is eliminated," and the error "should therefore be tested under the Watson test." (People v. Jackson, supra, at p. 1829.)
Although appellant does not argue prejudice under Watson, we find no prejudice arose here because there is no evidence that the jurors saw the restraints. Nor was there any evidence that the restraints impaired appellant or prejudiced his right to testify or participate at trial.
2. Did the trial court err by not allowing appellant to prove the victim was on parole?
Appellant contends that the trial court erred when it ruled to exclude evidence that the victim, Kevorkian, was on parole at the time of the offense. Appellant claims this ruling deprived him of his due process rights and his right to confront his accusers. We disagree.
Prior to trial, defense counsel moved to be able to impeach Kevorkian with his prior felony convictions, and to introduce evidence that Kevorkian was on parole at the time of the incident. The court granted the motion to impeach Kevorkian with his prior convictions, finding them "relevant to the credibility of the witness."
With respect to Kevorkians parole status, defense counsel argued that Kevorkian was aware that if arrested or convicted he would possibly be returned to prison, "giving him some motive or some reason to alter the facts of the incident in his favor." The evidence was relevant, according to defense counsel, "because it is basically going to be a case of he said versus he said and who has a reason to lie and who does not," and Kevorkian had "a reason to fabricate a story." The prosecutor asked that Kevorkians parole status not be admitted because Kevorkian was sent to prison, "not from any initial sentence on [a] charge," but, instead, for a violation of probation. The prosecutor also argued that Kevorkians parole status might be relevant if he had been promised something concerning his status in exchange for his testimony, but no such promise had been made.
In denying defense counsels request, the trial court noted Kevorkians parole status would be relevant if there was any promise or agreement with Kevorkian about his testimony, but that no promise had been made in exchange for his testimony. The court opined that Kevorkians parole status "maybe relevant as a reason or basis for the victim to fabricate," but that possibility "also assumes ... assumptions on the victims part ... which gives rise to speculation that that ever occurred ...." The court concluded, pursuant to Evidence Code section 352, that the probative value of such evidence with "minimum relevancy" was "substantially outweighed" by the "prejudicial effect." The court stated:
"[T]he court further finds that impeachment as to the credibility of the victim can be accomplished by the prior convictions which the court is allowing to come in for impeachment purposes. And while there is some additional relevancy to the reason to fabricate, the court finds that Evidence Code Section 352 requires its conclusion [sic]; and therefore, [appellants] motion to find as admissible the fact that the victim was on parole for a certain time or served a time in prison for any of his prior convictions, the court is excluding."
Davis v. Alaska (1974) 415 U.S. 308, on which appellant relies, does not control. In Davis, the court held that a defendant had been denied his right to confrontation and cross-examination of a key prosecution witness when he was not allowed to inquire into a prior adjudication that the witness was a juvenile delinquent. The court reasoned that the evidence was relevant to impeach the credibility of the witness by showing that he had a bias arising from his current probationary status. (Id. at pp. 316-317.) The trial court, in Davis, believed the state policy governing confidentiality of juvenile proceedings barred any reference to the status of the witness. No weighing of the evidence to determine whether it was sufficiently probative to warrant admission was undertaken. (Id. at p. 311.) Nothing in the Davis opinion suggests that the court intended to abrogate the power of trial courts to restrict cross-examination, even that by defendants, under well-established principles such as those reflected in Evidence Code section 352, i.e., if the probative value of the evidence "is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Rejecting a similar claim to that in Davis, the Supreme Court in Delaware v. Van Arsdall (1986) 475 U.S. 673 stated:
"Of particular relevance here, `[w]e have recognized that the exposure of a witness motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination. [Citation.] It does not follow, of course, that the Confrontation Clause of the Sixth Amendment prevents a trial judge from imposing any limits on defense counsels inquiry into the potential bias of a prosecution witness. On the contrary, trial judges retain wide latitude insofar as the Confrontation Clause is concerned to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness safety, or interrogation that is repetitive or only marginally relevant.... `[T]the Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish. [Citation.]" (Delaware v. Arsdall, supra, at pp. 678-679, italics in original.)
In People v. Castro (1985) 38 Cal.3d 301, our Supreme Court held that trial courts retain their discretion under Evidence Code section 352 to bar impeachment evidence when its probative value is substantially outweighed by its prejudicial effect. (Castro, supra, at pp. 306-313.) Evidence Code section 352 provides:
"The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
An Evidence Code section 352 ruling by a trial court is reviewed for abuse of discretion. (People v. Stewart (1985) 171 Cal.App.3d 59, 65.) A trial courts exercise of its discretion under Evidence Code section 352 "`must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
Appellant contends that the use of priors to impeach the credibility of a witness is different from the introduction of evidence that provides a motive of a witness to lie, and admission of such is not cumulative. While we agree with appellants analysis, we find the trial courts ruling was within its discretion.
Here, the trial court found Kevorkians parole status at the time of the attack of limited relevance, especially in light of the fact that Kevorkian had not been offered any inducements to testify. The trial court also noted that any assumption by Kevorkian that his version of the story to the officers, made at the time of the incident, would somehow lead to possible lenient treatment if he testified, was also speculative. On these facts, we cannot say that the trial court abused its discretion when it denied appellants motion to impeach Kevorkian with his parole status.
Assuming arguendo that the trial court abused its discretion in not allowing Kevorkian to be impeached with his parole status, we nevertheless conclude the error was harmless. Appellant was afforded ample opportunity to cross-examine Kevorkian and to impeach his credibility with his prior convictions. Kevorkian testified on direct examination that he had a criminal record, consisting of three felony convictions for commercial theft occurring in 2000, 2001, and 2003. He testified that the first conviction occurred when he was 18 years old. This information was repeated on cross-examination. Defense counsel specifically asked Kevorkian if he was convicted of "felony burglary" which was a "commercial burglary" in 2000; a "second commercial burglary" in 2001; and "you didnt stop there in 2003," but "[y]ou have a third felony conviction" in 2003 for petty theft with priors. Kevorkian responded yes to each question. Defense counsel also asked Kevorkian whether he was crying after the attack because he was concerned that he was "having another contact with law enforcement[,]" because "here you are with three felony convictions and here again the police are involved?" Kevorkian responded that he was happy to see the police "because they were there to help" him.
There is substantial evidence to support appellants petty theft with a prior conviction. Appellant admitted the petty theft allegation by testifying at trial that he had taken Kevorkians cell phone. Prior to trial, appellant admitted a prior felony for purposes of the petty theft with a prior allegation, elevating the current petty theft to a felony.
There is also substantial evidence to support the assault conviction. Kevorkian testified that appellant came up to him and socked him in the face. Officers responding to the scene observed appellant standing near Kevorkian, who was attempting to hold the bicycle between himself and appellant. Appellant had his fists balled up. Kevorkian, who was crying, had a large lump on his forehead. Kevorkian told the officers that appellant punched him in the forehead after asking him what he was looking at.
Based on the entire record, it is not reasonably probable appellant would have received a more favorable result had he been allowed to question Kevorkian about his parole status. (People v. Watson, supra, 46 Cal.2d at p. 836.)
3. Did the trial court err when it instructed with CALJIC No. 2.62?
The jury was instructed, according to CALJIC No. 2.62, as follows:
"In this case the defendant has testified to certain matters. If you find that the defendant failed to explain or deny any evidence against him introduced by the prosecution which he can [be] reasonably expected to deny or explain because of facts within his knowledge, you may take that failure into consideration as tending to indicate the truth of this evidence and as indicating that among the inferences that may reasonably be drawn therefrom those unfavorable to the defendant are the more probable. [¶] The failure of a defendant to deny or explain evidence against him does not by itself warrant an inference of guilt, nor does it relieve the prosecution of its burden of proving every essential element of the crime and the guilt of the defendant beyond a reasonable doubt. If the defendant does not have the knowledge that he would need to deny or explain evidence against him, it would be unreasonable to draw an inference unfavorable to him because of his failure to deny or explain this evidence."
Appellant contends there was no evidentiary basis for the instruction, claiming he explained or denied all evidence, making the giving of the instruction inappropriate and prejudicial. Our review of the record indicates that both parties requested the instruction be given. Because respondent does not argue invited error (People v. Rodrigues, supra, 8 Cal.4th at p. 1134), however, we will address the issue on the merits.
CALJIC No. 2.62, if justified by the evidence, does not violate a defendants privilege against self-incrimination, deny him or her the presumption of innocence, or violate due process. (People v. Saddler (1979) 24 Cal.3d 671, 678-679.) The instruction is proper when a defendant testifies but fails to deny or explain inculpatory evidence within his or her knowledge. (People v. Belmontes (1988) 45 Cal.3d 744, 783; People v. Saddler, supra, at p. 682.) The instruction is also appropriate when "`the defendant tenders an explanation which, while superficially accounting for his [or her] activities, nevertheless seems bizarre or implausible ..." so that it could be deemed a failure to explain or deny. (People v. Belmontes, supra, at p. 784.)
The test for the instruction is not whether the defendants testimony is believable, but whether the defendant has failed to explain or deny matters within his or her knowledge. (People v. Lamer (2003) 110 Cal.App.4th 1463, 1469.) The instruction should not "`be requested by either side unless there is some specific and significant defense omission that the prosecution wishes to stress or the defense wishes to mitigate." (Id. at p. 1470.)
While we agree that appellant tried to explain or deny most of the evidence, appellant did give a rather implausible explanation of why he had Kevorkians cell phone. Appellant first denied to the officers that he had taken Kevorkians cell phone. At trial he testified that he did not intentionally pick the cell phone off the ground, but that he did pick it up and throw it. He also testified that he did not want to throw the cell phone away so that Kevorkian could not get it back, but that he threw it to break it so Kevorkian could no longer use it. Whether appellants testimony was sufficiently bizarre or implausible to warrant the giving of CALJIC No. 2.62 is debatable.
In any event, we find the giving of CALJIC No. 2.62 was not prejudicial. The giving of the instruction violates no constitutional rights. For this reason, the error in giving CALJIC No. 2.62 is prejudicial only if it is reasonably probable a more favorable verdict would have resulted if the instruction had not been given. (People v. Saddler, supra, 24 Cal.3d at pp. 683-684.)
Although CALJIC No. 2.62 focuses solely on the testimony of the defendant, not all of what it says is unfavorable.
"CALJIC No. 2.62 does not direct the jury to draw an adverse inference. It applies only if the jury finds that the defendant failed to explain or deny evidence. It contains other portions favorable to the defense (suggesting when it would be unreasonable to draw the inference; and cautioning that the failure to deny or explain evidence does not create a presumption of guilt, or by itself warrant an inference of guilt, nor relieve the prosecution of the burden of proving every essential element of the crime beyond a reasonable doubt)." (People v. Ballard (1991) 1 Cal.App.4th 752, 756.)
With or without CALJIC No. 2.62, the jury would have perceived the inherent incredibility of appellants claim that he did not intend to pick up Kevorkians phone but picked it up anyway, and not to keep it from Kevorkian but to throw it and break it so that Kevorkian could no longer use it. In addition, the evidence against appellant was substantial. The officers who came upon the scene witnessed Kevorkian in a defensive stance and appellant with his fists balled up, in essence, corroborating Kevorkians account of the incident.
While the prosecutor argued that appellants explanations were not credible, she did not make a reference to CALJIC No. 2.62 or to appellants failure to explain or deny any evidence.
Finally, the trial court also advised the jury, pursuant to CALJIC No. 17.31, that not all instructions given would necessarily apply to the case, and that it was to disregard any instruction which applied to facts it determined not to exist. So, if in fact there was no evidence to support CALJIC No. 2.62, as appellant contends, the jury would have ascertained that fact and disregarded the instruction. The Supreme Court and other courts have stated that giving CALJIC No. 17.31 may partially counteract any prejudice in erroneously giving CALJIC No. 2.62. (See, e.g., People v. Saddler, supra, 24 Cal.3d at p. 684; People v. Lamer, supra, 110 Cal.App.4th at p. 1472.)
Based on the foregoing, it is not reasonably probable that, if CALJIC No. 2.62 had not been given, the jury would have reached a verdict more favorable to appellant. (People v. Watson, supra, 46 Cal.2d at p. 836.)
4. Was there resultant cumulative prejudice?
Appellant contends that the trial courts error in not allowing evidence that Kevorkian was on parole and in the giving of CALJIC No. 2.62 resulted in cumulative prejudicial error. We disagree.
Since the only possible errors did not result in any prejudice, there is no cumulative error. (People v. Lewis (2001) 25 Cal.4th 610, 635.)
5. Was appellant punished for exercising his right to a jury trial?
Prior to trial, appellant was advised that, if he were to plead guilty as charged on all three counts and admit his prior, the court would strike the prior conviction in the furtherance of justice, impose and suspend execution of a three-year term for the robbery count, and place appellant on probation. It is not clear from the record who made the offer, only that the trial court and counsel met in chambers to discuss "possible offers to resolve the case." Appellant rejected the offer and went to trial.
At trial, appellant was found guilty of petty theft with a prior and misdemeanor assault, and he was acquitted of robbery and the lesser included offense of grand theft from a person, as well as assault with a deadly weapon. But, as argued by appellant, "[d]espite appellants exoneration on the most serious charges, the court imposed a four year prison term, the middle term doubled ...." Appellant contends that "the only reasonable explanation for the disparity between the proffered plea bargain and the sentence imposed after trial was that the court punished appellant for exercising his right to trial." We disagree.
A trial court may not penalize a defendant for exercising his right to a jury trial, nor may it promise leniency if a defendant refrains from exercising that right. (In re Lewallen (1979) 23 Cal.3d 274, 278-281.) The right to a jury trial in a criminal prosecution is a fundamental right under both the state and federal Constitutions. (People v. Collins (2001) 26 Cal.4th 297, 304.) "It is well settled that to punish a person for exercising a constitutional right is `a due process violation of the most basic sort. [Citation.]" (Lewallen, supra, at p. 278.) A court may not offer any inducement in return for a plea of guilty or treat a defendant more harshly because he or she exercises the right to a jury trial. (Id. at pp. 278-279.) But,
"a trial courts discretion in imposing sentence is in no way limited by the terms of any negotiated pleas or sentences offered the defendant by the prosecution. The imposition of sentence within the legislatively prescribed limits is exclusively a judicial function. [Citation.] ... Legitimate facts may come to the courts attention either through the personal observations of the judge during trial [citation], or through the presentence report by the probation department, to induce the court to impose a sentence in excess of any recommended by the prosecution." (Id. at p. 281, fn. omitted.)
Vindictiveness in sentencing is not presumed from the mere fact the defendant received a harsher sentence after trial than he or she would have received prior to trial upon entry of a guilty plea. (People v. Szeto (1981) 29 Cal.3d 20, 35.) Appellant has the burden of proving the trial court imposed a harsher sentence as a punishment for his election to go to trial. (Ibid.)
Appellant relies on Lewallen in support of his argument. In Lewallen, the defendant rejected a proffered plea agreement and was convicted after a jury trial. At sentencing, the trial court determined that the defendant should receive a greater sentence than he would have received under the terms of the rejected plea agreement. (People v. Lewallen, supra, 23 Cal.3d at pp. 276-277.) On appeal, the Supreme Court focused on comments by the trial judge at sentencing:
"First, in response to defense counsels suggestion that placing defendant on informal probation would suffice, the trial judge responded, `You mean whether or not theres a disposition or not after a jury trial? Second, after sentencing the trial judge stated, `I think I want to emphasize theres no reason in having the District Attorney attempt to negotiate matters if after the defendant refuses a negotiation he gets the same sentence as if he had accepted the negotiation. It is just a waste of everybodys time, and whats he got to lose. And as far as Im concerned, if a defendant wants a jury trial and hes convicted, hes not going to be penalized with that, but on the other hand hes not going to have the consideration he would have had if there was a plea." (Lewallen, at p. 277.)
The Lewallen court concluded that the trial court essentially punished the defendant for exercising his right to jury trial and vacated the sentence. (Id. at pp. 279-282.)
Here, the trial courts conduct was entirely unlike the behavior of the trial court in Lewallen, a fact appellant concedes. Where a sentencing judge says nothing "reasonably giving rise to the inference that he was penalizing defendant for exercising his right to a jury trial," the mere fact that following trial the defendant received a more severe sentence than that offered during plea negotiations "does not in itself support the inference that he was penalized for exercising his constitutional rights." (People v. Szeto, supra, 29 Cal.3d at p. 35.)
The trial courts discussion at sentencing suggests the court was clearly motivated by legitimate factors when it imposed the sentence. The court articulated, in precise terms, the reasons for its election to sentence appellant to the middle term, finding the circumstances in mitigation and aggravation "generally balance." It also stated it had considered the age of the strike prior, the age of appellant, and his prior criminal history before determining not to strike the strike offense. When the trial courts lengthy remarks are viewed in context, it is clear that the decision to sentence appellant to the middle term, doubled pursuant to the three strikes law, was in no way predicated on appellants election to forgo the plea offer and proceed to trial.
We reject appellants claim to the contrary.
6. Did the trial court abuse its discretion in refusing to strike appellants prior conviction?
Finally, appellant contends that the trial court erred when it failed to strike his prior strike conviction. Appellant bases his argument on the fact that, since the court was willing to strike the prior strike conviction allegation "in the interest of justice" as part of a plea bargain, the court should have granted appellants Romero motion following the verdicts. We disagree.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
Section 1385 permits the trial court to exercise its discretion and strike a prior strike conviction if the dismissal is in furtherance of justice. (§ 1385, subd. (a); People v. Garcia (1999) 20 Cal.4th 490, 499; People v. Williams (1998) 17 Cal.4th 148, 158.) A trial courts failure to dismiss or strike a prior conviction pursuant to section 1385 is subject to appellate review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 375.)
In deciding whether to strike a prior conviction, the trial court
"must consider whether, in light of the nature and circumstances of [appellants] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, [appellant] may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams, supra, 17 Cal.4th at p. 161.)
To show an abuse of discretion, the defendant must demonstrate the trial courts decision was "irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of [the] prior convictions." (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) When the record shows the trial court considered relevant factors and acted to achieve legitimate sentencing objectives, the decision will not be disturbed on appeal. (Id. at p. 310.)
Deferential review, as it applies to three strikes cases, was discussed extensively in People v. Carmony, supra, 33 Cal.4th 367:
"[T]he three strikes law not only establishes a sentencing norm, it carefully circumscribes the trial courts power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper. [¶] In light of this presumption, a trial court will only abuse its discretion in failing to strike a prior felony conviction allegation in limited circumstances. For example, an abuse of discretion occurs where the trial court was not `aware of its discretion to dismiss [citation], or where the court considered impermissible factors in declining to dismiss [citation]. Moreover, `the sentencing norms [established by the Three Strikes law may, as a matter of law,] produce[] an "arbitrary, capricious or patently absurd" result under the specific facts of a particular case. [Citation.] [¶] But `it is not enough to show that reasonable people might disagree about whether to strike one or more prior conviction allegations. [Citation.] Where the record is silent [citation], or `[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial courts ruling, even if we might have ruled differently in the first instance [citation]." (Id. at p. 378.)
Here, the trial court did not abuse its discretion when it denied appellants request to strike the prior strike conviction. The court carefully explained its decision was based on the circumstances of the prior residential burglary. The court explained that, while it could consider the victims recantation of that incident, it also considered the facts "as set forth in the probation officers report," the fact that the conviction occurred in 1999, the age of appellant, and his prior criminal history. "[O]n balance," the court "d[id] not find that this is a case in which the court should strike the strike offense[.]"
Our review of the record reflects the trial court also reviewed the entirety of appellants criminal record, the nature of the current offenses, and his prior performance on probation, and acted to achieve legitimate sentencing objectives, after a thoughtful and conscientious assessment of all relevant factors. (See People v. Williams, supra, 17 Cal.4th at pp. 161-164; see also People v. Superior Court (Romero), supra, 13 Cal.4th at p. 530.) Appellant has not shown the trial court acted improperly in refusing to strike his prior conviction. (People v. Barrera (1999) 70 Cal.App.4th 541, 553-555.) The trial courts decision not to strike appellants prior was neither irrational nor arbitrary.
DISPOSITION
The judgment is affirmed.
We Concur:
HARRIS, Acting P.J.
CORNELL, J.