Opinion
C038451.
7-30-2003
THE PEOPLE, Plaintiff and Respondent, v. DANIEL SHAWN NEWSOM, Defendant and Appellant.
A jury convicted defendant Daniel Shawn Newsom of possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), maintaining a place for selling or using methamphetamine (Health & Saf. Code, § 11366) and a convicted felon in possession of ammunition (Pen. Code, § 12316, subd. (b)(1)). The jury acquitted defendant of utilizing a fortified house to suppress law enforcement entry. (Health & Saf. Code, § 11366.6.) In bifurcated proceedings, the court found three strike priors (Pen. Code, § 1170.12) to be true.
Sentenced to state prison for 25 years to life, defendant appeals, contending (1) the trial court failed to instruct on jury unanimity (CALJIC No. 17.01), (2) the trial court erroneously and prejudicially interfered with the jurys function by giving the jury specific suggestions about the conduct of deliberations and highlighting parts of instructions, and (3) the trial court erred in denying defendants motion to be sentenced by the same judge who presided at trial. We will affirm.
FACTS
On December 31, 2000, law enforcement officers executed a search warrant at defendants trailer located in a trailer park. Receiving no response to their knocks and announcement of their presence, the officers entered a patio area and again knocked on the main door of the trailer. After several attempts to breach the door which was reinforced with a metal bar, the officers finally entered and found defendant with two associates. Officers found a peep hole in the door and a baby monitor and speaker in defendants bedroom which allowed him to hear noise at the front door.
A drug detector dog alerted to the following four areas in defendants trailer: a dresser drawer on the floor of the only bedroom in the trailer where officers found a plastic baggie with 37.71 grams of a white powdery substance which did not contain methamphetamine and a drivers license which belonged to defendant; underneath the bed where officers found a nylon bag containing three pieces of plastic wrap, each with white powder residue, a Q-tip, tobacco, and a film canister with pieces of plastic containing .64 grams of methamphetamine and cotton; a dresser drawer at the head of the bed in the bedroom where officers found approximately 80 hypodermic syringes; and a bathroom cabinet below the sink where officers found a bent metal spoon with .64 grams of methamphetamine and a piece of cotton.
In a desk in the living room, officers found an unopened letter, a jail visitor form, and a social security card indicating defendant resided at the trailer. Marijuana and a flare gun were also found in the living room. A 12-gauge shotgun cartridge was found in a cabinet under the kitchen sink.
No indicia was found that showed anyone else lived in the trailer.
Defendant was interviewed and admitted selling $ 100 worth of methamphetamine per day from his trailer. He knew that he was a convicted felon in possession of a flare gun and shotgun cartridge. Defendant explained the plastic packaging materials found in the living room desk were for packaging methamphetamine for sale. Defendant had numerous syringes because he used one only once. He denied selling them. Defendant explained that his door was reinforced because he had "girl problems." A woman owed defendant money and he had been "going back and forth" with another woman. He had punctured the tires of the car belonging to one of the women. He also admitted that he reinforced the door in part to obstruct law enforcement. Defendant thought that the white powdery substance found in the baggie in the dresser drawer on the floor contained methamphetamine based on the smell and taste. He explained, however, that it was not high quality and basically sugar based on the number of complaints he had received and his own use. He denied manufacturing methamphetamine.
On October 29, 2000, defendant reported a burglary at his trailer but an officer who responded was unable to confirm that any property had been taken. The suspects had gained entry by using a pry bar on the door. The officer did not recall seeing a metal bar on the door. Defendants mother believed that defendant had installed the metal bar on the door by October 31, 2000.
The parties stipulated that defendant had been previously convicted of a felony.
DISCUSSION
I
Defendant first contends that the trial court prejudicially erred in failing to instruct on unanimity in that his conviction for possession of methamphetamine could have been based upon either the methamphetamine found under his bed or the methamphetamine found under the bathroom sink. We conclude that although the trial court erred in failing to so instruct, the error was harmless since defendant offered no defense to the possession of methamphetamine charge and the jury would necessarily have believed if he possessed one amount he possessed the other.
Background
Underneath the bed, officers found a nylon bag containing three pieces of plastic wrap, each with white powder residue, a Q-tip, tobacco, and a film canister with pieces of plastic containing a usable amount of methamphetamine and cotton. In a bathroom cabinet, officers found a metal spoon with a usable amount of methamphetamine and a small piece of cotton.
The trial court did not instruct on jury unanimity (CALJIC No. 17.01).
CALJIC No. 17.01 provides:
"The defendant is accused of having committed the crime of ______ [in Count ____]. The prosecution has introduced evidence for the purpose of showing that there is more than one [act] [or] [omission] upon which a conviction [on Count _____] may be based. Defendant may be found guilty if the proof shows beyond a reasonable doubt that [he] [she] committed any one or more of the [acts] [or] [omissions]. However, in order to return a verdict of guilty [to Count _____], all jurors must agree that [he] [she] committed the same [act] [or] [omission] [or] [acts] [or] [omissions]. It is not necessary that the particular [act] [or] [omission] agreed upon be stated in your verdict."
Standard of Review
To convict a defendant of a criminal offense, there must be a unanimous jury verdict. (Cal. Const., art. I, § 16; People v. Russo (2001) 25 Cal.4th 1124, 1132.) When a single criminal act is charged but the evidence shows more than one crime, the jury must be instructed that it must unanimously agree upon the act or acts constituting the crime or the prosecution must elect the act relied upon. (Id. at p. 1132; People v. Diedrich (1982) 31 Cal.3d 263, 280-283, 182 Cal. Rptr. 354, 643 P.2d 971; People v. Sanchez (2001) 94 Cal.App.4th 622, 631.)
In deciding whether to instruct on unanimity, the trial court considers whether there is a risk that the jury might divide on two discrete crimes and not agree on any particular crime. If so, a unanimity instruction must be given sua sponte. If there is only a possibility that the jury might divide or be uncertain as to defendants guilt of a single crime, the trial court has no obligation to instruct on unanimity. (People v. Russo, supra, 25 Cal.4th at p. 1135.) In other words, where the criminal acts are so closely connected in time as to form a single transaction or where the offense consists of a continuous course of conduct, no unanimity instruction is required. (People v. Diedrich, supra, 31 Cal.3d at p. 282.)
Prejudice is assessed under the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [17 L. Ed. 2d 705, 710-711, 87 S. Ct. 824]. "Where the record provides no rational basis, by way of argument or evidence, for the jury to distinguish between the various acts, and the jury must have believed beyond a reasonable doubt that defendant committed all acts if he committed any, the failure to give a unanimity instruction is harmless. [Citation.] Where the record indicates the jury resolved the basic credibility dispute against the defendant and therefore would have convicted him of any of the various offenses shown by the evidence, the failure to give the unanimity instruction is harmless. [Citation.]" (People v. Thompson (1995) 36 Cal.App.4th 843, 853.)
Analysis
Defendant claims the court had a duty to instruct sua sponte on unanimity since either the methamphetamine found under the bed or that found under the bathroom sink could have supported his conviction for possession of methamphetamine. Defendant notes defense counsel argued to the jury that the methamphetamine could have belonged to either one of the two associates who were in the trailer at the time of the search. Defendant claims the facts in People v. King (1991) 231 Cal. App. 3d 493, 282 Cal. Rptr. 402 (King) and in People v. Castaneda (1997) 55 Cal.App.4th 1067 (Castaneda) are similar to the facts here.
In King, a search of the defendants home pursuant to a search warrant revealed 2.5 grams of methamphetamine in a purse found in the living room which belonged to Ms. Peebles, .33 grams of liquid methamphetamine in a syringe in that same purse and .76 grams of methamphetamine stuffed into a ceramic statue located on top of a shelf above the kitchen sink. (231 Cal. App. 3d at pp. 497-498.) The defendants boyfriend testified that the methamphetamine found in the statue in the kitchen belonged to him. (Id. at p. 498.) In rebuttal, officers testified that nothing was located to attach the boyfriend to the premises. (Ibid.) Defense counsel argued that there was nothing to connect the defendant with the items found in Ms. Peebless purse and that the only dispute involved the methamphetamine found in the statue. The prosecutor agreed that Ms. Peebles had the most methamphetamine in her pursue but that more than one person can possess an item. (Id. at p. 499.) The defendant was convicted of possession of methamphetamine for sale. (Id. at p. 495.) On appeal, she contended that the trial court erroneously failed to instruct sua sponte on jury unanimity. She argued that the jury "could have created a patchwork verdict whereby different jurors believed that the different stashes of methamphetamine belonged to [her]" and if so, the jury was not unanimous on which amount was in her possession for sale. (Id. at p. 499.) King held that "in a prosecution for possession of narcotics for sale, where actual or constructive possession is based upon two or more individual units of contraband reasonably distinguishable by a separation in time and/or space and there is evidence as to each unit from which a reasonable jury could find that it was solely possessed by a person or persons other than the defendant, absent an election by the People CALJIC No. 17.01 must be given to assure jury unanimity." (Id. at pp. 501-502.)
In Castaneda, officers executed a search warrant at the home of the defendants former spouse. The defendant had been at the home on two occasions the previous month. Upon entering, officers found the defendant in a bedroom. A search of his person revealed no drugs. The defendants former spouse, teenage son and three younger children were also present at the time of the search. A search of the bedroom where the defendant had been found revealed .07 grams of tar heroin taped to the back of a television and .02 grams of tar heroin on top of the television. The defendant was taken to jail where one hand was cuffed to a pipe in a holding cell. About 15 minutes later, an officer took off the handcuff and searched the defendants coin pocket which revealed 1.1 grams of tar heroin. The defendant was shocked. The officer denied planting the heroin on the defendant. Defense counsel argued to the jury that nothing had been found at the scene and that if the defendant had heroin in his pocket he would have swallowed it. The defendants teenage son testified that the heroin found on the television belonged to him. He had been using heroin with his friends and his mother caught him. The defendants former spouse confirmed that she had caught her teenage son shooting heroin and asked the defendant to come over. (Castaneda, supra, 55 Cal.App.4th at pp. 1069-1070.) Castaneda found that the trial courts failure to instruct on jury unanimity was reversible error in that the acts of possession, constructive possession of the heroin on the television and actual possession of the heroin in his pocket, were factually distinct and that the defendant had offered separate defenses to each act. (Id. at pp. 1070-1071.)
Here, like King, supra, 231 Cal. App. 3d 493 and Castaneda, supra, 55 Cal.App.4th 1067 there were two acts of possession which were reasonably distinguishable by a separation in space. One amount of methamphetamine was found in defendants bedroom under his bed and the other amount of methamphetamine was found in the bathroom under the sink. The prosecution made no election. The trial court erred in failing to instruct on jury unanimity.
However, the error was harmless. Unlike the defendants in King and Castaneda, defendant offered no evidence to suggest that the methamphetamine found underneath his bed in his bedroom or in his cabinet underneath his sink in his bathroom in his trailer belonged to anyone other than himself. Defense counsels argument is not evidence. Even counsels argument, however, did not distinguish between the two amounts. Defendant admitted selling methamphetamine from the trailer. When interviewed, he never suggested that the methamphetamine belonged to anyone but himself. No reasonable jury could find that anyone but defendant possessed the methamphetamine found in both places in his trailer. In finding defendant guilty of possession of methamphetamine, the jury necessarily found that defendant possessed both the amount found underneath his bed and the amount found under the bathroom sink.
II
Defendant next contends that the trial court erroneously and prejudicially interfered with the function of the jury. Specifically, defendant complains that the trial court gave the jury suggestions about how to conduct deliberations and highlighted portions of the instructions given. We conclude that defendant has waived the issue by failing to object. In any event, even assuming the trial court erred, defendant can show no prejudice.
Background
At the beginning of trial, the court had the bailiff hand out a notebook to each juror which is divided by tabs with the following headings:
"TAB 1 Answers to common juror questions
Courtroom personnel
"TAB 2 Judges preliminary instructions of law
"TAB 3 Suggestions for Jury Deliberation (Getting Started)
"TAB 4 Judges final instructions of law (to be distributed to you at the close of the presentation of evidence)
"TAB 5 Blank paper for note-taking
Courtroom Diagram"
The judge left the bench and stood in the well to explain the notebook to the jurors. With respect to Tab 3, Suggestions for Jury Deliberation, the judge explained that "lots of times jurors have no prior experience being a juror, so I have given some suggestions about what happens and how do we do this process and how do we get started" and noted that the jurors would have a chance later on to read it. The suggestions which cover two pages are set forth in the margin below. PAGE CONTAINED FOOTNOTES
"SUGGESTIONS FOR JURY DELIBERATION "Jury deliberation is extremely important. Each of you should participate in the decision-making process and should feel that the experience was worthwhile. With this in mind, jurors should make every effort to be courteous and considerate of each other. Rude or discourteous behavior should not occur. You may wish to also consider the following: [P] 1. Do not disparage someone elses views. We all perceive the world differently and each juror should be allowed to voice their own views without fear of ridicule or embarrassment. You should try to resolve disagreements in an atmosphere that encourages openness and candor. [P] 2. Give each juror the opportunity to speak. Some jurors are more open and comfortable about sharing their views. It is essential that each juror be willing to discuss their views with the others. If a juror is unwilling or unable to discuss his or her views with the other jurors, you must let me know immediately. Everyone should be able to go home with the feeling that they had the opportunity to share their views and opinions fully and completely. [P] 3. Listen carefully when another juror is speaking. Try not to be looking at the instructions or evidence when someone else is speaking. [P] 4. Remember, you are not attorneys for one of the parties in the case. You are to view the evidence and the law as twelve impartial judges of the facts. [P] 5. Introductions. Since you dont know each other very well (if at all), you should go around the room and have each juror introduce themselves, their occupation, ages of their children, prior jury experience, etc. [P] 6. Selecting the foreperson. After each juror has been introduced, you may wish to select the foreperson. This can be by private ballot with the person receiving the most votes being selected or any other fair selection process. Do not rush to pick the foreperson! I have talked with jurors who later said that they wish they would have spent more time deciding who would be the foreperson. The duties of the foreperson are simple yet important. It is he or she who acts as the moderator for the discussion, making sure everyone gets an opportunity to speak. The foreperson also is given the responsibility of signing and dating the verdict(s). The foreperson is not required to announce the verdict in open court; I11 do that. The foreperson should be someone who is a good listener but also able to take charge and keep the deliberations moving forward fairly and equitably. [P] 7. List issues for discussion. Have each juror, if they wish, state what they believe are the issues that they would like to fully discuss. Someone may wish to write down the issues, perhaps on the `chalkboard. It may also be helpful to list the elements for each offense and whether each element has been proven. [P] 8. Discussion. The discussion should be `free and open with each juror being given the opportunity to do so. If however the discussion gets bogged down, the foreperson may wish to start a list of who wishes to speak and then once that juror has spoken, he or she moves to the bottom of the list if the juror has more to say. [P] 9. Instructions. Each juror has a complete set of the courts instructions and may choose to read them again. Each juror should be prepared to discuss the instructions with the other jurors. If after discussing an instruction, the jury needs my assistance with regard to understanding a legal issue or instruction, write the question down and contact the bailiff. I will then work with the attorneys and try and answer your question. This may take time so please be patient and continue your deliberations. [P] 10. Re-reading portions of testimony. As I indicated to you in court, if you wish to have the court reporter brought into the jury room to read back portions of testimony of witnesses, please write the request and contact the bailiff. It will take some time (15 to 30 minutes) to contact the attorneys and arrange to have the court reporter brought over. Try and be as specific as possible with the request. If during the reading of the portions requested, the foreperson wishes to halt the process and engage in discussions, the court reporter must first be excused. [P] 11. Jurors Questions. The bailiff cannot give you advice nor answer any questions you may have. Please write all questions, clearly and legibly, and contact the bailiff. He or she will then bring the note to my attention and I will contact the attorneys and formulate an answer. They may take time; please continue your deliberations while you await an answer. [P] 12. Voting. You may (but are not required) to use secret ballots. However, once you advise the bailiff that you have reached a verdict, or that you are unable to reach a verdict, you will be brought back to the courtroom. At that time, I will ask each one of you if the verdict expresses your vote. That process is known as `polling the jury. [P] 13. REMEMBER : during any break or recess, no matter for what reason, all deliberations must stop. Do not discuss the case with any other juror (and never with anyone other than a juror) unless all twelve jurors are present in the jury room. This is a very strict rule that must be enforced at all times. You are not permitted to take your notebooks (or any portion thereof) with you outside of the jury deliberation room. " (Original italics, bolding, and underscoring.)
In discussing jury instructions, the trial court commented to counsel that it had "longstanding difficulty with the way the CALJIC reads and the format on which CALJIC is contained" and intended to give the jury simplified CALJIC instructions with certain words highlighted or bolded for the ease of counsel and for the jurys convenience. Only the prosecutor objected based on "the rule that no one part of the instructions should be emphasized over the others." The court noted the prosecutors objection.
After the presentation of evidence but before giving the jury the final instructions, the judge left the bench and stepped into the well, instructed the jurors to open their notebooks and had them read the pages under Tab 1, answers to common juror questions and descriptions of court personnel. Thereafter, the judge passed out the final instructions, instructed the jurors to place the same behind Tab 4, and had the jurors read along as the judge read the instructions. At one point the judge interjected, "You will note that some of the words have been bolded for you. That is not to draw necessarily emphasis to them; its simply for sake of ease in trying to find any particular areas of instructions that you may wish to review, and its also to assist the attorneys when they make their argument to you that they can easily turn to a particular instruction, so dont infer from my bolding a particular word that I am somehow wanting you to draw more emphasis to that than any other part of an instruction."
The bolded words included a usable amount, possession, actual or constructive, knowingly, criminal intent, general and specific, direct and circumstantial evidence, the elements of the offenses and the count numbers, expert, hypothetical question, proof beyond a reasonable doubt, witnesses, "the absolute constitutional right not to testify," just and lawful verdict, and "you must accept and follow the law contained in my instructions to you regardless of whether you agree with the law ."
After arguments by counsel, the judge had the jurors turn to Tab 4 and read the concluding instructions. Prior to reading the concluding instructions, the judge commented that once the jurors reached the deliberation room, they "may wish to read the materials" behind Tab 3. After reading the concluding instructions, the judge commented, "The first thing you should do is — when you are in the jury deliberation room is to review the materials behind Tab three." After the bailiff was sworn to take charge of the jury, a juror asked how to proceed, "If we do have a question, should we present it now to the bailiff or wait until we are in the jury deliberation room?" The court responded, "At this stage it would probably be better if you wait until you go into the jury deliberation room. You might want to read the Suggestions for Getting Started, Tab three. You may discuss your question with the other jurors. If, after discussing the question with the other jurors, you still want to direct the request to the court, feel free to do so. [P] The first thing you will probably do — you dont have to do this. You have great discretion when you are in the jury deliberation room. I am not peeking or listening in. Just remember the rules. I just think if you read the suggestions I said to you, you might feel a little more comfortable about what to do."
Standard of Review
The trial court has a duty to instruct the jury "generally concerning its basic functions, duties, and conduct." (Pen. Code, § 1122.)
""It is well established in California that the correctness of jury instructions is to be determined from the entire charge of the court, not from a consideration of parts of an instruction or from a particular instruction."" (People v. Estep (1996) 42 Cal.App.4th 733, 738-739.)
Analysis
We first consider whether defendant has waived the issue by failing to make a timely objection to the trial courts allegedly erroneous suggestions for deliberation and highlighting the final instructions. Defendant claims the prosecutor objected to the highlighting and, based on the courts ruling, any further objection on his part would have been useless or futile. (See People v. Anderson (2001) 25 Cal.4th 543, 587.) This does not explain defendants failure to object to the allegedly erroneous suggestions for deliberation.
Generally, appellate review is waived absent a timely and specific objection. Penal Code section 1259 allows review of an instructional error, however, even absent an objection where "the substantial rights of the defendant" were affected thereby. (People v. Kainzrants (1996) 45 Cal.App.4th 1068, 1074.)
Defendant has failed to explain how his rights were affected other than generally claiming that the court unduly interfered with the jurys function, dictating rather than suggesting procedures and emphasizing instructions which in the aggregate were coercive, thereby denying defendant his rights to a fair trial by an unbiased and impartial jury and to due process under the state and federal constitutions. And further, defendant claims the courts instructions misinformed the jury regarding their right to nullify a verdict and threatened the integrity of the unanimous verdict by intimidating jurors and threatening judicial sanctions to remove a holdout juror if they should disagree with the majority.
Defendant cannot establish that his rights were affected by the courts suggestions for deliberation or highlighting words in the instructions. He does not claim that any rule of law was misstated or was wrong other than that with respect to jury nullification to which a jury has no right and defendants rights to a jury trial are not affected by the removal of a juror who refuses to follow the law. (People v. Williams (2001) 25 Cal.4th 441, 449 ["The circumstance that, as a practical matter, the jury in a criminal case may have the ability to disregard the courts instructions in the defendants favor without recourse by the prosecution does not diminish the trial courts authority to discharge a juror who, the court learns, is unable or unwilling to follow the courts instructions"]; People v. Brown (2001) 91 Cal.App.4th 256, 271.) Defendants claim that minority jurors were intimidated by the courts instructions is rejected as nothing more than speculation. The jury acquitted defendant of utilizing a fortified house to suppress law enforcement entry. The jury requested the readback of Officer Bokavichs testimony and had a question about specific intent. The record does not reflect any problems of a holdout juror. To the extent defendant challenges CALJIC No. 17.41.1 (jury misconduct), his claim is rejected for the reasons stated in People v. Engelman (2002) 28 Cal.4th 236.
In any event, although the trial court changed some of the language of the CALJIC instructions, the instructions given state the relevant law and defendant does not contend otherwise. "The trial court is not obligated, necessarily, to repeat the words chosen by the CALJIC Committee, however helpful they may be. Instead, the trial courts obligation is to state the law correctly." (People v. Runnion (1994) 30 Cal.App.4th 852, 858.)
The court did highlight certain words in the instructions. CALJIC No. 17.45 provides, "The instructions which I am now giving to you will be made available in written form if you so request for your deliberations. They must not be defaced in any way. [P] You will find that the instructions may be typed, printed or handwritten. Portions may have been added or deleted. You must disregard any deleted part of an instruction and not speculate as to what it was or as to the reason for its deletion. You are not to be concerned with the reasons for any modification. [P] Every part of the text of an instruction, whether, typed, printed or handwritten, is of equal importance. You are to be governed only by the instruction in its final wording." (Italics added.) The court explained that it had highlighted certain words to assist counsel and the jury. By doing so, the court did not misstate the law and specifically instructed why certain words were highlighted. Defendant shows no prejudice. We reject his claim.
III
Defendant finally contends that he was sentenced by a judge who did not hear the trial evidence thus denying his right to a full and fair sentencing hearing. Defendant states that he "does not claim that he was prejudiced by the procedure in the present case, but requests that this court decide the issue in the event that his case is remanded for a new trial or for sentencing." We are not remanding the matter to the trial court for a new trial or for resentencing so we need not decide the issue. In any event, defendant has not shown, and indeed does not claim, prejudice.
Defendant cites and discusses People v. Arbuckle (1978) 22 Cal.3d 749, 150 Cal. Rptr. 778, 587 P.2d 220 and People v. Dunn (1986) 176 Cal. App. 3d 572, 222 Cal. Rptr. 273 which apply where a defendant has entered a negotiated plea agreement which contemplates sentencing by the judge who accepted the plea but is not guaranteed where a judge is unavailable due to a matter clearly beyond the power of the court to control. Defendant did not enter a negotiated plea but was tried by a jury.
Background
Judge Caskey presided over trial but assigned the matter to Judge Jahr for sentencing over defendants objection. Judge Caskey explained that Judge Jahr was the "judge who handles these kinds of matters" but would handle sentencing if Judge Jahr referred the matter back. Judge Jahr thereafter denied defendants request to transfer the matter to Judge Caskey for sentencing and sentenced defendant. Prior to doing so, Judge Jahr stated that he had read the probation report and the statement in aggravation and heard and denied defendants Penal Code section 17, subdivision (b) motion to reduce the offenses to misdemeanors and his motion to strike his priors pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 917 P.2d 628 which discussed the nature of the offenses and defendants criminal history.
The prosecutor also objected absent an Arbuckle waiver.
Standard of Review
A sentencing judge must consider all of the facts and circumstances of the offense as well as defendants entire criminal history. (People v. Warner (1978) 20 Cal.3d 678, 685, 689, 143 Cal. Rptr. 885, 574 P.2d 1237 [defendants prior child molestation convictions considered in concluding court abused discretion in granting probation]; In re Cortez (1971) 6 Cal.3d 78, 85-86, 98 Cal. Rptr. 307, 490 P.2d 819; see also People v. Strunk (1995) 31 Cal.App.4th 265, 275 (Strunk) [resentencing required because judge failed to consider and weigh all the circumstances]; People v. Nevill (1985) 167 Cal. App. 3d 198, 202, 212 Cal. Rptr. 898 ["achieving uniformity in sentencing requires the sentence imposed be based upon consideration of all relevant aggravating and mitigating factors"]; People v. Green (1982) 142 Cal. App. 3d 207, 216, 192 Cal. Rptr. 146 ["the judge shall consider all the circumstances of the offense and of appellants participation therein"].)
Analysis
Relying on Strunk, supra, 31 Cal.App.4th 265, defendant claims that sentencing which is referred to a judge who has not heard the trial evidence interferes with his right to a fair and full sentencing hearing. In Strunk, sentencing was transferred from the trial judge to the supervising judge based on an administrative procedure utilized by that court. (Id. at p. 275, fn. 12.) Strunk found that a blanket procedure, without a defendants agreement or good cause, "denies a defendant his or her right to an independent, full and fair sentencing hearing as contemplated under the Determinate Sentencing Act [citation] and the California Rules of Court." (Id. at p. 275.) Strunk explained: "Although there may be certain cases and circumstances where sentencing by other than the trial judge will not interfere with the defendants right to a fair and full sentencing hearing based on the record in the case, the probation report, and other statements or evidence submitted for the sentencing hearing, this is not one of them. Here the sentencing judge exercised his sentencing discretion based solely on the probation officers report with respect to the conclusion there were no mitigating factors. Because the judge had not sat through the trial, and only reviewed the probation report which did not list at least three of the mitigating factors claimed by Strunk in the trial record, we cannot find that the judge exercised its required independent sentencing discretion or properly weighed all the circumstances. The matter must thus be remanded for a new sentencing hearing. [P] Moreover, because the trial judge is the only person who is in the position to properly review and weigh the claimed mitigating circumstances in this case, which are so dependent upon the facts adduced at trial, the matter must be remanded to him." (Ibid.)
Strunk, supra, 31 Cal.App.4th 265 is distinguishable. Here, there is no evidence that the sentencing judge failed to consider all the circumstances of the offenses which were fairly straightforward and defendant basically admitted the same when interviewed by police. The sentencing judge considered defendants Penal Code section 17, subdivision (b) motion as well as his Romero motion and denied both motions. Defendant has not claimed the court failed to consider certain mitigating factors. Judge Jahr imposed one
25-years-to-life term, stayed another, and ran the third concurrent. We find no prejudice.
DISPOSITION
The judgment is affirmed.
We concur: BLEASE, Acting P.J., DAVIS, J.