Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF05670
SIMS, Acting P.J.On February 8, 2006, the Yuba County District Attorney filed a second amended complaint (later deemed an information) charging defendant Johnny Lee Ruggles in count I with second degree burglary (Pen. Code, § 459; undesignated section references are to the Penal Code), in count II with attempting to obtain a controlled substance by fraud (Health & Saf. Code, § 11173, subd. (a)), and in count III with being a person charged with commission of a felony who willfully failed to appear in court when required after having been released from custody on his own recognizance. (§ 1320, subd. (b).) It was further alleged as to counts I and II that defendant had been previously convicted of a felony, possession of a controlled substance for sale (Health & Saf. Code, § 11359), and that he served a separate prison term for said conviction. (§ 667.5, subd. (b).)
On February 22, 2006, the case proceeded to jury trial. On March 28, 2006, defendant was convicted by jury verdict of counts I, II and III. On March 29, 2006, after a bifurcated trial, defendant was found to have been previously convicted and served a prison term, as alleged.
On May 1, 2006, defendant was sentenced to state prison for the upper term of three years on count I, an additional one year, consecutive, for the prior prison term enhancement, and one third of the mid-term of two years, or eight months, consecutive, on count III. The sentence on count II was stayed pursuant to section 654. The total prison term was four years, eight months. Defendant was ordered to pay a restitution fine of $800 pursuant to section 1202.4, subdivision (b). An additional restitution fine pursuant to section 1202.45 was stayed pursuant to section 1202.4, subdivision (a)(2). A court security fee of $20 was imposed pursuant to section 1465.8. Defendant was given credit for 118 days actual time, and 58 days credit pursuant to section 4019, for a total credit of 176 days.
Defendant has timely appealed.
On appeal he contends: (1) no substantial evidence supports his conviction for willful failure to appear while released on his own recognizance (count III); (2) the trial court erroneously gave a general intent instruction in connection with the charge of willful failure to appear while released on his own recognizance (count III); and (3) defendant’s upper term sentence on count I (second degree burglary) was erroneous because it was based on facts not tried to a jury as required by Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856; 75 US LW 4078])
We shall conclude: (1) substantial evidence supports defendant’s conviction for willful failure to appear while released on his own recognizance; (2) the trial court erroneously gave general intent instructions in connection with the charge of willful failure to appear while released on defendant’s own recognizance (count III), and the error cannot be deemed harmless; and (3) the trial court properly imposed the upper term sentence on count I.
We shall therefore reverse defendant’s conviction on count III and remand to the trial court for a new trial on that count. We shall otherwise affirm the judgment.
FACTS
Defendant has put at issue only those facts of the crimes related to his conviction on count III, willful failure to appear while released on his own recognizance. Accordingly, we limit our discussion to those facts.
Defendant’s failure to appear occurred at an earlier trial of this case that commenced on January 4, 2006.
At the outset of the trial of the instant case (which resulted in the convictions appealed from) defendant and the People entered into the following stipulation in open court:
“[O]n January 4, 2006, Defendant, Johnny Lee Ruggles, was present in court for a jury trial. During the jury selection the Defendant was released on his own recognizance and ordered by the court to return to the courtroom at 1:25 p.m. Following the lunch recess at 1:30, the jury venire had returned to the courtroom, as did Counsel for Defendant and Counsel for the People, but Mr. Ruggles had not returned as ordered. At approximately 2:20 p.m. Court declared a mistrial due to the absence of the Defendant, and the jury venire had to be dismissed.”
Deputy Sheriff Darrell Brice, the court’s bailiff, testified that defendant reappeared in court 10 minutes after the jury had been excused. Deputy Brice stated that defendant did not make any statement at that time about where he had been, and that he appeared to be calm.
DISCUSSION
I
There was Sufficient Evidence to Support Defendant’s Conviction on Count III
Defendant contends there was insufficient evidence to support his conviction on count III for failure to appear after release upon his own recognizance in violation of section 1320. Specifically, he asserts that the prosecution failed to establish that he “was properly released on his own recognizance and that he absented himself with the purpose to evade the court.” The contention is meritless.
“It is the prosecution’s burden in a criminal case to prove every element of a crime beyond a reasonable doubt.” (People v. Cuevas (1995) 12 Cal.4th 252, 260, citing In re Winship (1970) 397 U.S. 358.) In determining whether the evidence is sufficient to support a conviction, the court must review “the whole record in the light most favorable to the judgment” and decide “whether it discloses substantial evidence . . . such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.” (People v. Johnson (1980) 26 Cal.3d 557, 578.)
“Under this standard, the court does not ‘“ask itself whether it believes that the evidence at the trial established guilt beyond a reasonable doubt.” [Citation.] Instead, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.)” (People v. Hatch (2000) 22 Cal.4th 260, 272.)
Section 1320, subdivision (b), provides in pertinent part: “Every person who is charged with or convicted of the commission of a felony who is released from custody on his or her own recognizance and who in order to evade the process of the court willfully fails to appear as required, is guilty of a felony . . . .
“An element of the crime of failure to appear is that the failure must be with the specific intent to evade the process of the court.” (People v. Forrester (1994) 30 Cal.App.4th 1697, 1701 (Forrester), citing People v. Wesley (1988) 198 Cal.App.3d 519, 522-524 (Wesley).)
Preliminarily, we note that defendant argues that no evidence suggested he was lawfully released on his own recognizance because the prosecution did not adduce proof of the circumstances described in section 1318, which constitute a lawful release on one’s own recognizance.
Section 1318 provides as follows:
Defendant argues the prosecution proved no written agreement nor other circumstances described in section 1318. However, at the outset of trial, the defendant and the prosecution stipulated, in open court, that “[d]uring jury selection, defendant was released on his own recognizance . . . .” The evident purpose of the stipulation was to obviate the necessity for proof on this issue by both sides. It would be an absurd construction of the stipulation to hold that it somehow contemplated something other than a lawful release on one’s own recognizance. Defendant’s contention is rejected.
Defendant next argues that the evidence is insufficient to show that defendant had the intent to evade the process of the court in returning late to the courtroom. Defendant does not dispute that the court’s oral order to defendant to return at 1:25 p.m. constitutes “the process of the court.”
We cannot agree with defendant. No evidence in the record suggests that defendant was confused about the time that the court ordered him to return to the courtroom at 1:25 p.m. The jury could draw the reasonable inference that defendant was not confused about the time at which he was to return, that he waited until the jury was excused from the courtroom in order to cause a mistrial, that he may have witnessed the jury leaving the courthouse, and only then did he reappear in the courtroom. These reasonable inferences constitute substantial evidence that he had the willful intent to evade the process of the court. Defendant’s contention to the contrary is rejected.
II.
The Trial Court Erroneously Gave General Intent Instructions in Connection with the Offense Charged in Count III and the Error Is Not Harmless
As we have mentioned, “[a]n element of the crime of failure to appear is that the failure must be with the specific intent to evade the process of the court.” (People v. Forrester, supra, 30 Cal.App.4th 1697, 1701, citing People v. Wesley, supra, 198 Cal.App.3d 519, 522-524.)
As pertinent, the trial court instructed the jury as follows:
“Defendant is accused in count III of having committed the crime of failing to appear after being released on his own recognizance, violation of . . . Section 1320(b). . . . Every person who is charged with a felony who is released from custody on his own recognizance and who in order to evade the process of the Court willfully fails to appear as required is guilty of the crime of failing to appear after being released on his own recognizance, violation of . . . Section 1320(b).
“[¶] . . . [¶]
“In order to prove this crime, each of the following elements must be proven: Number one, Defendant was charged with a felony; Number 2, Defendant was released from custody on his own recognizance; Number 3, Defendant willfully failed to appear as required in order to evade the process of the court.
“The word ‘willfully’ when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act or to make the admission in question. The word ‘willfully’ does not require any intent to violate the law or to injure another or to acquire any advantage.
“In the crimes charged in . . . Count III, willful failure to appear, violation of section 1320(b) of the Penal Code, there must exist a union or joint operation of act or conduct and general criminal intent. General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares [sic] to be a crime, he is acting with general criminal intent even though he may not know that his act or conduct is unlawful.”
It therefore appears that the trial court gave contradictory instructions. Thus, when the trial court defined the elements of the offense, it told the jury that defendant “in order to evade the process of the court willfully fails to appear as required” is guilty of the offense. As we have mentioned, this element requires the defendant to have the specific intent to evade the process of the court. On the other hand, the court’s general intent instructions told the jury that the defendant need not have any intent to violate the law and need have only a general criminal intent. The trial court erred in instructing on general criminal intent on count III.
This leaves the question of whether the instructional error may be deemed harmless. Where a trial court gives conflicting instructions on specific and general intent, the test of harmless error is that set forth in Chapman v. California (1967) 386 U.S. 18 at page 21 [17 L.Ed.2d 705 at page 709; 24 ALR 3d 1065] to wit, whether the error can be deemed harmless beyond a reasonable doubt. (People v. Lee (1987) 43 Cal.3d 666, 674; People v. Jeter (2005) 125 Cal.App.4th 1212, 1217.)
On this record we cannot say beyond a reasonable doubt that the jury must have found that defendant had the specific intent to evade the process of the court in the circumstances shown here. He voluntarily returned to the courtroom. He was only 40 to 45 minutes late. He appeared calm when he returned. All of this is consistent with simply being late or slothful (although, as we have explained, that is not the inference the jury was required to draw).
In short, we cannot say the instructional error was harmless beyond a reasonable doubt. We will therefore reverse defendant’s conviction on count III.
III.
Defendant contends the trial court’s imposition of the upper term on count I (second degree burglary) violates the rule of Cunningham v. California, supra, 549 U.S. ___ [166 L.Ed.2d 856] because certain aggravating factors were not tried to a jury.
In imposing the upper term on count I, the trial court initially said, as pertinent: “I am determining that pursuant to [rule] 4.421 [of the California Rules of Court; undesignated rule references are to the California Rules of Court] I find that the circumstances in aggravation far outweigh any circumstances in mitigation. I find the circumstances in aggravation to include [rule] 4.421(b)(2), that the prior convictions are numerous and increasing in seriousness. [Rule] 4.421(b)(3), that defendant has served a prior prison term. [Rule] 4.421(b)(4), that he was on probation when the crimes were committed. And [rule] 4.421(b)(5), that his prior performance on parole and probation was unsatisfactory. I do not note any circumstances in mitigation and do not rely on [rules] 4.423(b)(2) or (b)(4) or (b)(6). However, even if those were to apply, the circumstances in aggravation would far outweigh them.”
After defendant’s attorney objected that the probation report did not show that defendant was on probation at the time of the offense, the trial court said, “I will delete the reference to Rule 4.421(b)(4), that he was on probation at the time when the crimes were committed.”
Cunningham requires that facts used to aggravate a sentence, “other than a prior conviction, must be tried to a jury.” (Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856].)
In our view, the following circumstances in aggravation relied on by the trial court fall within Cunningham’s exception for prior convictions that do not have to be tried to a jury: (1) prior convictions as an adult are numerous and increasing in seriousness; (2) defendant served prior prison terms.
This leaves the aggravating factor that defendant’s prior performance on probation and parole was unsatisfactory.
The erroneous use of aggravating factors not tried to a jury may be deemed harmless error. (Washington v. Recuenco (2006) __ U.S. __ [126 S.Ct. 2546, 2553; 165 L.Ed.2d 466].)
In our view, the court’s use of the last aggravating factor is harmless beyond a reasonable doubt on this record.
This is because defendant’s prior dismal performance on probation and parole was described in detail in the probation report prepared in advance of his sentencing in this case. Defendant had every incentive at trial to contest the factual recitation of his criminal background in the probation report, because the trial court would rely on that background as aggravating factors, just as the trial court did.
Defendant filed a written “Sentencing Statement” in which he responded to material in the probation report.
As pertinent, defendant’s “Sentencing Statement” commented on the probation report as follows:
“Rule 4.414(b)(2):
“The probation report states that [defendant] suffered violations of parole. However, the report references only one single parole violation in 1999 and no probation violations. Given [defendant]’s age and the criminal history that the probation officer argued was extensive, a single violation is insignificant. To the contrary, he has established the fact that he can comply with a grant of probation or parole without violating the terms or conditions imposed.”
Defendant’s sentencing statement does not accurately reflect the information contained in the probation report. Thus, although it is true that defendant’s parole was revoked once, it is also true that defendant violated probation by committing new crimes on the following dates when he was on probation: October 2, 1989, October 25, 1989, April 8, 2005.
The probation report reflects three violations of probation plus one revocation of parole. This is unsatisfactory prior performance on probation and parole by anyone’s standards. We have no doubt a jury would so conclude.
It is therefore not reasonably possible that defendant would obtain a better result as to this factor had it been tried to a jury.
The upper term sentence imposed on count I shall stand.
DISPOSITION
Defendant’s conviction and sentence on count III are reversed, and the matter is remanded to the trial court for a
new trial. In all other respects the judgment is affirmed.
We concur: ROBIE, J., CANTIL-SAKAUYE, J.
“(a) The defendant shall not be released from custody under an own recognizance until the defendant files with the clerk of the court or other person authorized to accept bail a signed release agreement which includes: [¶] (1) The defendant's promise to appear at all times and places, as ordered by the court or magistrate and as ordered by any court in which, or any magistrate before whom the charge is subsequently pending. [¶] (2) The defendant's promise to obey all reasonable conditions imposed by the court or magistrate. [¶] (3) The defendant's promise not to depart this state without leave of the court. [¶] (4) Agreement by the defendant to waive extradition if the defendant fails to appear as required and is apprehended outside of the State of California. [¶] (5) The acknowledgment of the defendant that he or she has been informed of the consequences and penalties applicable to violation of the conditions of release.”