Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. TA078078, Jack W. Morgan, Judge.
Linda Acaldo, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Juliet H. Swoboda, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Marcus Robinson, appeals from the judgment entered following his conviction, by jury trial, for false imprisonment and carjacking, with a prior serious felony conviction finding (Pen. Code, §§ 236, 215, 667, subd. (a) - i)). Sentenced to state prison for 23 years, he claims there was trial and sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed as modified.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
1. Prosecution evidence.
On October 30, 2004, T.B. spent the day with her boyfriend shopping and socializing with friends. At about 11:00 p.m., T.B. wanted to leave because she was tired, but her boyfriend wanted to stay with his friends, so T.B. went to his car to take a nap. Her boyfriend’s car was a Dodge Magnum with $8,000 rims. T.B. fell asleep in the front passenger seat.
When she awoke about midnight, T.B. discovered the car had been moved. She heard someone rummaging around in the trunk and assumed it was her boyfriend. But then defendant Robinson opened the driver’s door and got in. T.B. knew Robinson from around the neighborhood and she had heard he was affiliated with a gang. She asked Robinson what was going on, but he ignored the question and started driving. T.B. told him not to take the car, but Robinson replied, “I jacked it.”
T.B. was scared. She thought Robinson had a gun because she believed people affiliated with gangs carried guns and because Robinson, who had on a big hooded sweatshirt, was holding one of the sleeves like he had something concealed in it. Robinson stopped at T.B.’s house and told her to get out. T.B. said, “Why are you doing this? You’re messing with the wrong people.” Robinson replied, “[G]et the fuck out the car.” T.B. got out and started screaming for help. Robinson drove up alongside her and said, “You tell anybody I’m going to kill you,” and “If you speak my name, I’m going to kill you.”
When the car was recovered four or five days later, Robinson’s thumbprint was found on the rearview mirror.
2. Defense evidence.
Los Angeles County Deputy Sheriff Robert Medrano interviewed T.B. the night of the carjacking. T.B. said the person who had stolen the car was Marcus, a local transient.
CONTENTIONS
1. The trial court erred by admitting gang-related evidence.
2. The trial court punished Robinson for rejecting a plea bargain and going to trial.
3. The trial court erred by not dismissing Robinson’s prior conviction under the “Three Strikes” law.
4. The trial court improperly imposed an upper term on the carjacking conviction.
5. The abstract of judgment contains an error.
DISCUSSION
1. Trial court did not err by admitting gang evidence.
Robinson contends the trial court erred by admitting T.B.’s testimony that she believed he was gang-affiliated. Robinson argues this evidence should have been barred under Evidence Code section 352 as more prejudicial than probative. This claim is meritless.
The admission of gang evidence almost always carries a risk of prejudice. “When offered by the prosecution, we have condemned the introduction of evidence of gang membership if only tangentially relevant, given its highly inflammatory impact.” (People v. Cox (1991) 53 Cal.3d 618, 660.) Evidence of gang membership creates the risk that jurors will improperly infer the defendant has a criminal disposition and is therefore guilty of the crime charged. (People v. Williams (1997) 16 Cal.4th 153, 193; People v. Champion (1995) 9 Cal.4th 879, 922, disapproved on other grounds by People v. Combs (2004) 34 Cal.4th 821, 860.) A trial court’s exercise of discretion under Evidence Code section 352, to admit evidence as more probative than prejudicial, will not be overturned on appeal absent the showing of an abuse of that discretion. (People v. Raley (1992) 2 Cal.4th 870, 895; People v. Edwards (1991) 54 Cal.3d 787, 817.)
Robinson argues “the trial court prima facie abused its discretion as a matter of law in failing to weigh on the record the probative value of the evidence . . . against the danger of prejudice to appellant.” Not so. “[A] trial court, in making a determination whether certain evidence is substantially more prejudicial than probative, ‘need not expressly weigh prejudice against probative value – or even expressly state that [it] has done so . . . .’ ” (People v. Waidla (2000) 22 Cal.4th 690, 724, fn. 6; see also In re Romeo C. (1995) 33 Cal.App.4th 1838, 1845 [“No ‘magic words’ are necessary to show an appropriate exercise of discretion under Evidence Code section 352. [Citation.] What is important is that the record manifest the trial court’s exercise of discretion available under Evidence Code section 352.”].)
The record shows the trial court did engage in the proper weighing process. When defense counsel argued the gang evidence was unnecessary because of the evidence Robinson had a gun, the trial court pointed out T.B. only testified she thought Robinson had a gun, not that she ever saw one: “So that makes the evidence more relevant, you see, because . . . if . . . there’s direct evidence that he had a gun, that could well be enough to remove the other [i.e., the gang affiliation testimony] . . . . But without that evidence, then the evidence of her belief . . . would be relevant as to whether or not she was fearful as to the kidnapping and as to the carjacking.”
Another indication the trial court exercised its section 352 discretion was a discussion about admitting evidence that T.B. feared Robinson because of rumors he had committed other crimes, including robbery and rape. The trial court said, “I think that goes over the line in terms of the 352.” When the prosecutor argued, “Could we sanitize it and say that she had heard that he was violent?” the trial court said: “It becomes speculation and becomes a situation where I believe it will inflame the jury, and there doesn’t appear to be any probative value given we already have information in regard to the gang membership [sic].” The trial court then ruled it would admit the evidence T.B. believed Robinson was gang-affiliated, but not the evidence she believed he had committed rape and robbery.
As the trial court noted, evidence that T.B. believed Robinson was gang-affiliated was relevant because it tended to show why she was scared, which was relevant to the fear elements of carjacking and aggravated kidnapping. In addition, T.B.’s fear was relevant to explain the false story she gave police the night of the carjacking. (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1368 [evidence witness is afraid “of retaliation . . . relates to that witness’s credibility and is . . . admissible”].)
Robinson was charged with and convicted of kidnapping during the commission of a carjacking, but the trial court granted a post-trial motion to vacate this conviction.
The trial court did not err by admitting the gang evidence.
2. Trial court did not punish Robinson for rejecting the plea bargain and going to trial.
Robinson contends his sentence must be vacated because the trial court imposed a harsh sentence to punish him for rejecting an offered plea bargain and going to trial. This claim is meritless.
a. Legal principles.
“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.] The constitutional right to trial by jury in criminal prosecutions is fundamental to our system of justice [citations]; thus, we have stated that ‘only the most compelling reasons can justify any interference, however slight, with an accused’s prerogative to personally decide whether to stand trial or to waive his rights by pleading guilty.’ [Citation.] ‘A court may not offer any inducement in return for a plea of guilty or nolo contendere. It may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right.’ [Citation.] [¶] The People concede that the refusal of an accused to negotiate a plea with the prosecution must not influence the sentence imposed by the court after trial.” (In re Lewallen (1979) 23 Cal.3d 274, 278-279.) “We emphasize, however, that a trial court’s 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.” (Id. at p. 281.)
“[A]cceptance of the basic legitimacy of plea bargaining necessarily implies rejection of any notion that a guilty plea is involuntary in a constitutional sense simply because it is the end result of the bargaining process. By hypothesis, the plea may have been induced by promises of a recommendation of a lenient sentence or a reduction of charges, and thus by fear of the possibility of a greater penalty upon conviction after a trial. [Citations.] [¶] While confronting a defendant with the risk of more severe punishment clearly may have a ‘discouraging effect on the defendant’s assertion of his trial rights, the imposition of these difficult choices [is] an inevitable’ – and permissible – ‘attribute of any legitimate system which tolerates and encourages the negotiation of pleas.’ [Citation.] It follows that, by tolerating and encouraging the negotiation of pleas, this Court has necessarily accepted as constitutionally legitimate the simple reality that the prosecutor’s interest at the bargaining table is to persuade the defendant to forgo his right to plead not guilty.” (Bordenkircher v. Hayes (1978) 434 U.S. 357, 363-364 [98 S.Ct. 663].)
b. Discussion.
When the trial court first asked about the plea negotiations, the prosecution said Robinson had been offered a plea bargain worth six years, but noted it might amend the information to add a charge of kidnapping during the commission of a carjacking (§ 209.5), which would carry a life sentence. The trial court summarized the situation: “As the pleadings presently stand if things go all wrong he gets 26 years and possibly life. If he takes the offer today he could take the offer of six years.” Robinson told the trial court he was not interested in the offer. When the information was subsequently amended to add the aggravated kidnapping charge, Robinson again turned down the offered plea bargain.
On the day set for trial, the trial court asked Robinson about the plea offer one last time, noting the “huge disparity between what you are likely to get if everything goes downhill for you and what is being offered,” and advising Robinson that if he rejected the offer “it may be one of the worst decisions you ever made in your life. It could be the worst error you may make in your life period if you decide to go to trial.” Robinson again rejected the plea bargain in favor of going to trial.
After Robinson’s conviction, his attorney filed a motion under People v. Dillon (1983) 34 Cal.3d 441, arguing a life term for the aggravated kidnapping conviction would amount to cruel and unusual punishment because it would be disproportionate to the offense. During oral argument of that motion, the following colloquy occurred:
“The Court: Now, the thrust of your argument I think – and correct me if I’m wrong, that the offense doesn’t fit the punishment. The punishment doesn’t fit the offense basically. It is too harsh.
“[Defense counsel]: Yes, I believe for the most part Dillon does address those variations.
“The Court: Here is the difficulty we have. [¶] As you well know most courts, if not all of them, make every effort to settle cases before they go to trial. Even on the day of trial you come in here and if the attorneys are so inclined the court tries to settle cases. . . . [¶] And when a person makes the decision to go to trial knowing the possible consequences – and again I don’t remember what the offer was here, but I think it was considerable [sic].
“[Prosecutor]: It was six years.
“The Court: Six years. [¶] Knowing that if the axe falls it is an incredibly long sentence. The person makes the decision knowingly . . . to go to trial. [¶] Now, if they go to trial and they know what is at stake and a jury comes back and finds them guilty beyond a reasonable doubt, then at that point [does] the argument cruel and unusual ring very much of a bell?”
Robinson argues this colloquy proves that, when the trial court subsequently imposed the high term for the carjacking conviction, it was punishing him for going to trial: “[T]he only reasonable conclusion to be inferred from this record is that the court . . . punished appellant for exercising his right to trial . . . . This logical inference must be drawn because there were no ‘surprises’ at trial which would justify the increased sentence and explain the gross disparity between what the court was willing to accept pre-trial and what it imposed post-trial.” But this argument ignores the entire premise underlying plea bargaining: the defendant receives a substantially reduced sentence in return for giving up the right to a trial. (See Bordenkircher v. Hayes, supra, 434 U.S. at pp. 363-364.)
However, it does appear the trial court started to venture into forbidden territory when it commented that a Dillon claim made by a defendant who had turned down a plea offer was not very persuasive. Courts have found this kind of language indicative of an intent to punish the defendant for having gone to trial. (See, e.g., In re Lewallen, supra, 23 Cal.3d at p. 279 [trial court responded to defense counsel’s suggestion at sentencing that informal probation would suffice by saying “ ‘You mean whether or not there’s a disposition or not after a jury trial?’ ”]; In re Edy D. (2004) 120 Cal.App.4th 1199, 1202 [“court’s statement that if the minor inconvenienced witnesses by having them come to court for an adjudication hearing, the option of a disposition under Welfare and Institutions Code section 725, subdivision (a) would no longer be available to him”]; People v. Morales (1967) 252 Cal.App.2d 537, 542, fn. 4, italics added [trial court said prison inmate defendants “have the same rights as anyone else . . ., but I don’t think it’s fair for an inmate, or anyone else, to come to Court and demand a jury trial, demand the services of the public defender . . . when there really isn’t any defense to this case, and there was no effort to put on a defense because there couldn’t be [one]”].)
But if the trial court began to stray into the forbidden zone, it is clear defense counsel got the court back onto the right track. Immediately after the trial court’s comment linking the Dillon analysis to the rejected plea bargain, defense counsel argued: “Judge, I think you still have to be concerned about . . . whether or not the punishment is fair under the Eighth Amendment. I think even if it turns out an individual does go to a jury trial and loses a jury trial, the punishment still has to be fair. . . . I don’t think the inquiry should stop at, you know, he had an opportunity to resolve the case. [¶] . . . It really doesn’t change my argument even if it turns out there was an opportunity to settle the case at an earlier stage. Is the punishment fair at the conclusion of the case. And the case of Dillon is something that the court should consider in imposing sentence in this case.”
In response to these remarks, the trial court acknowledged Robinson’s offense had not been particularly egregious: “[C]ertainly this wasn’t the most violent or atrocious carjacking or kidnapping that I have seen by a long ways.” The trial court then granted Robinson’s Dillon motion and vacated the aggravated kidnapping conviction. This ruling was based on the trial court’s express determination that 23 years was a fair sentence in the circumstances, and implicit in reaching that 23-year figure was a judgment that the upper term on the carjacking conviction was warranted.
Hence, despite the trial court’s initial references to the rejected plea bargain, the record demonstrates the trial court did not, ultimately, punish Robinson for going to trial.
3. Trial court properly refused to dismiss the Three Strikes allegation.
Robinson contends the trial court erred by refusing to dismiss, for Three Strikes purposes under the authority of People v. Superior Court (Romero) (1996) 13 Cal.4th 497, his prior serious felony conviction. This claim is meritless.
The factors to be considered in ruling on a Romero motion were set forth in People v. Williams (1998) 17 Cal.4th 148, 161: “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law . . . ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s 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.”
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 375.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citation.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 376-377.)
Robinson asserts the trial court gave absolutely no consideration to his Romero motion: “Indeed, the court’s denial was perfunctory and placed on the record almost as an afterthought. [¶] Immediately before denying appellant’s Romero motion, the court, upon defense counsel’s raising the issue, asked whether the motion ‘included Romero.’ The sole reason recited by the court for denying appellant’s motion was that appellant had continued to ‘lead a life of crime.’. . . [T]he question that the court asked appellant’s trial counsel indicated that the court had not even read the motion that counsel filed; and . . . the court’s ‘rationale’ seemingly was nothing more than an attempt to protect the record from reversal by this Court.”
However, the record demonstrates the trial court not only was aware of the pending Romero motion, but even corrected defense counsel’s erroneous assumption that granting the Dillon motion had somehow mooted the Romero request:
“[Defense counsel]: I take it given that the court is going to grant my [Dillon] motion, then it makes my [section] 1385 [motion] moot?
“The Court: Well, I guess it doesn’t. [¶] Well, your 1385 includes Romero?
“[Defense counsel]: Yes.
“The Court: It wouldn’t render it – I will deny . . . Romero for the reason he has continued to lead the life of crime.”
Moreover, there is nothing in the record showing the trial court was unaware of its discretion under section 1385 or failed to exercise that discretion when denying the Romero motion. According to the probation report, Robinson’s criminal record included the following: a 1988 juvenile adjudication for receiving stolen property; a 1988 adult conviction for arson to an inhabited structure, for which he served a term in state prison; and a 1992 conviction for possession, sale or manufacture of a dangerous weapon, for which he served a prison term. In 1994 and 1997, Robinson violated parole and was returned to custody. In the present case, Robinson was convicted of false imprisonment and carjacking, and the evidence showed he had threatened to kill the victim if she reported the crime. Robinson’s overall record and his recidivism constituted a sufficient basis for denying the Romero motion. (See People v. Strong (2001) 87 Cal.App.4th 328, 338 [“the overwhelming majority of California appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career:”]; see also People v. Carmony, supra, 33 Cal.4th at p. 378 [“ ‘[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 court’s ruling, even if we might have ruled differently in the first instance’ ”].)
In sum, we cannot agree the trial court abused its discretion when it denied Robinson’s Romero motion. (See People v. Carmony, supra, 33 Cal.4th at p.375 [“trial court does not abuse its discretion [in denying Romero motion] unless its decision is so irrational or arbitrary that no reasonable person could agree with it”].)
4. Trial court properly imposed the upper term.
Robinson contends the trial court erred by imposing an upper term on the carjacking conviction. This claim is meritless.
a. Legal principles.
In Apprendi v. New Jersey (2000) 530 U.S. 466 147 L.Ed.2d 435, the Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) In Blakely v. Washington (2004) 542 U.S. 296, 301159 L.Ed.2d 403, the court reiterated this rule and applied it to invalidate an enhanced sentence imposed under Washington’s determinate sentencing law, whose structure was somewhat akin to the triad structure of California’s Determinate Sentencing Law (DSL).
In People v. Black (2005) 35 Cal.4th 1238 (Black I), our Supreme Court held: “[T]he provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi [and] Blakely . . . .” (Id. at p. 1254.) However, Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856], overruled Black I, holding that the middle term under the DSL is “the relevant statutory maximum” (Cunningham, supra, at p. 871) for Sixth Amendment purposes, and therefore, other than the fact of a prior conviction, “any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Id. at pp. 863-864.)
b. Claim not waived.
The People assert Robinson forfeited any right to challenge the upper term sentence on the carjacking conviction because he failed to object to its imposition in the trial court. This claim is meritless.
Robinson was sentenced on January 5, 2006, which was after Blakely had been decided, but also after our Supreme Court’s decision in Black I, and before the United States Supreme Court’s decision in Cunningham. In this situation, as our Supreme Court explained in People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4: “[O]ur decision in Black I was binding on the lower courts until it was overruled by the high court. [Citation.] Had defendant requested a jury trial on aggravating circumstances, that request clearly would have been futile, because the trial court would have been required to follow our decision in Black I and deny the request.” “An objection in the trial court is not required if it would have been futile. [Citation.]” (People v. Sandoval, supra, 41 Cal.4th at p. 837, fn. 4.)
c. Upper term was proper.
In People v. Black (2007) 41 Cal.4th 799 (Black II), our Supreme Court reconsidered Black I in light ofCunningham and held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial. (Id. at p. 812.) “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
Here, the trial court pronounced sentencing on the carjacking conviction by saying: “[T]he high term is appropriate . . . based upon the fact that there are aggravating circumstances: the defendant’s prior conviction as an adult and adjudications of crime as a juvenile are numerous or of increasing seriousness. [¶] Secondly, the defendant has served two prior prison terms. Clearly the defendant’s prior performance on probation or parole was unsatisfactory. [¶] I find no mitigating circumstances. [¶] High term is appropriate of 9 years.” The first factor cited by the trial court was, by itself, sufficient to render Robinson eligible for the upper term. (See Black II, supra, 41 Cal.4th at p. 818, 819 [“the right to a jury trial does not apply to the fact of a prior conviction,” and this exception “include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions”].)
5. Abstract of judgment must be corrected.
Robinson contends, and the People properly concur, that the abstract of judgment contains a clerical error because it reflects a conviction on count 5, kidnapping during the commission of a carjacking, whereas the trial court set that conviction aside. Accordingly, we will order the trial court to correct the abstract of judgment. (See People v. Mitchell (2001) 26 Cal.4th 181, 185 [it is proper and important to correct errors and omissions in abstracts of judgment].)
DISPOSITION
The judgment is affirmed as modified. The clerk of the superior court shall prepare an amended abstract of judgment to reflect this modification, and forward the amended abstract of judgment to the Department of Corrections.
We concur: KITCHING, J., ALDRICH, J.