Opinion
H035471
11-08-2011
THE PEOPLE, Plaintiff and Respondent, v. STEVEN REFUGIO SAUCEDO, JR., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Santa Clara County Super. Ct. No. CC948492)
A jury convicted defendant Steven Refugio Saucedo, Jr. of first degree burglary (Pen. Code, §§ 459, 460, subd. (a) [count 1]), assault with a deadly weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1) [count 2]), and assault with a deadly weapon (§ 245, subd. (a)(1) [count 3]). Allegations that the burglary was a violent felony because a nonaccomplice had been present (§ 667.5, subd. (c)(21)), that defendant personally used a deadly or dangerous weapon, a knife (§ 12022, subd. (b)(1)) and personally inflicted great bodily injury (§§ 12022.7, subd. (a), 1203, subd. (e)(3)) in the commission of count 1, and that he personally used a deadly and dangerous weapon, a knife (§§ 667, 1192.7) and personally inflicted great bodily injury (§§ 12022.7, subd. (a), 1203, subd. (e)(3)) in the commission of count 2 were also found true. Defendant admitted a prior serious felony conviction allegation (§ 667, subd. (a)), a "strike" prior allegation (§§ 667, subds. (b)-(i), 1170.12), and three prior prison term allegations (§667.5, subd. (b)). He was sentenced to 19 years in prison.
Further statutory references are to the Penal Code unless otherwise noted.
On appeal, defendant contends that the trial court (1) prejudicially abused its discretion and violated his constitutional rights when it denied his motions to reopen and for a two-week continuance, and (2) erroneously imposed, rather than struck, the terms for the personal use and great bodily injury enhancements to the burglary count, since it had used the facts of those enhancements to impose the upper term for the burglary count. We reject the first contention but agree with the second. We modify and affirm the judgment.
I. Factual Background
Mauricio and Gabriel Ortiz shared an apartment in San Jose. Early in the evening on July 1, 2009, Gabriel, a barber, was cutting Charlie Sanchez's hair while another client, Sanchez's friend Mark Gonzales, waited. Mauricio was watching television. He had consumed "two or three" 24-ounce cans of beer that evening, and had "probably" used methamphetamine the night before.
To avoid confusion occasioned by shared surnames, we refer to the Ortiz brothers and to Samuel and Valerie Palacios by their first names. We intend no disrespect.
Sanchez testified that his surname is shown as "Sanchezmendoza" on his Social Security card but "[a]ctually, it's two names" (Sanchez-Mendoza). He goes by "Sanchez."
Dustin Martell, his girlfriend Valerie Palacios, their two small children, and Valerie's brother Samuel Palacios lived in the apartment next door to the Ortizes. Defendant lived nearby and sometimes visited Martell.
Mauricio had rearranged some pictures and "wanted to cover up . . . the little nail holes in the wall" with putty. Martell had borrowed the putty a few months before and Mauricio was "a little, you know, bothered that he never returned it back." Around six or seven that evening, Mauricio saw Samuel outside and "confronted" him about the putty. Mauricio "wasn't being a jerk about it or anything," but Samuel responded in a "very aggressive" manner and then "offended" Mauricio "in some way." That caused Mauricio to become a little "impolite," and things went downhill from there. Valerie yelled at Mauricio to stop "talking smack" to her brother. Mauricio told Valerie, "You're drunk." And "she was just . . . cursing and yelling at me." Mauricio went back inside. Gabriel "started talking to Valerie, . . . trying to fix things . . . ," but that "just made the situation worse."
Gabriel left to buy cigarettes. About five minutes later, Samuel, Martell, and defendant appeared "side by side" on the threshold of Mauricio's open door. He told them to leave and tried to slam the door on their hands. Unable to close the door because the three outside were "pushing as hard as they could" on it, Mauricio "pulled out the mace" and sprayed them.
According to Mauricio, the three pushed their way inside. "[Samuel] went towards me," Mauricio claimed, "and me and [Samuel] were having a physical altercation." Martell was "[s]winging, kicking." There was "a TV that was on a dresser in the living room," and somebody "dropped the TV on the back of [Mauricio's] head." Mauricio was "hunched down and just fighting" and "like, looking at the floor," so he did not see who threw the television. He believed it was Martell, however, "because I don't think [Samuel] would [have] be[en] able to reach [it]."
Mauricio said defendant was on his left when the television landed on his head, and he was stabbed "[j]ust about the same time." "I was hit with the television first, and then after, I was stabbed." Samuel, defendant, and Martell "were all in the apartment" at the time. Mauricio had seen defendant with his right hand "hiding something" in his pocket when he entered the apartment, and when defendant took his hand out of his pocket as Mauricio "was being beaten," Mauricio saw "an object" in his hand. Mauricio claimed defendant stabbed him during the fight with Samuel. "He sneaked up on me and got me from the side without me looking."
Gonzales witnessed much of the fracas from a couch "[r]ight next to the door" in Mauricio's apartment. Gonzales, who was drinking a 22-ounce Corona, saw Mauricio arguing with "the neighbor lady," who called him a "pervert" and told him "he couldn't handle his alcohol." Mauricio shut the door but opened it again in response to a knock, and Gonzales saw Martell, Samuel, and a "third guy" who was "kind of tall, about 6-foot one," standing there. Samuel was in front of the other two. Mauricio exchanged words with "[o]ne of the guys . . . about why [Mauricio] was talking to his wife or his girlfriend that way." All three were arguing with Mauricio, and "[e]verybody was yelling at the same time." When Mauricio tried to close the door, one of the three blocked it with his foot, and Samuel and Martell pushed their way into the apartment. Mauricio said, " 'I got something for you,' and then he busted out a bottle of pepper spray." Samuel "threw the first punch," but Gonzales "could barely see who was throwing what punch" because the pepper spray hit him in both eyes. He saw Mauricio "fall back on the couch."
Gonzales announced that he "wasn't acquainted with any of them, you know," and one of the three men, who had remained outside, told him, "Then leave." "And that's when I got up, and I just ran out of the house."
Although Gonzales described this person as the "taller of the three of them," he then identified defendant (the "third guy," who was "about 6-foot one") as that person. Martell testified that he is six feet four inches tall. Samuel testified that he is five feet six inches tall. Martell's counsel stated during colloquy outside the presence of the jury that defendant is "five-nine, apparently. I'm getting that information."
About "a minute, two minutes" later, Gonzales saw Sanchez running across the parking lot. One of the men was chasing Sanchez, but his back was to Gonzales, "so I really couldn't make out the face."
Sanchez, who occasionally went to Gabriel's apartment for a haircut when the barbershop was closed, also witnessed the melee. Sanchez consumed "like, one or two" 12-ounce cans of beer that evening. He "heard a girl yelling . . . towards [Mauricio's] apartment." The door to the apartment and the curtains on the window were closed, but the window was open. Mauricio closed it. "And then -- then, like, I guess someone was at the door." Mauricio opened it, and Sanchez saw Samuel, Martell, and defendant on the doorstep. Gonzales heard Martell say "[s]omething about 'This is the last time.' "
Mauricio tried to shut the door but "someone was pushing it from outside." Sanchez did not see who it was. "The door opened, and then [Mauricio] started wrestling with [Samuel]." Gonzales "didn't really see any punches." "It was more just like somebody rushing towards someone else, and then them falling over and kind of, like, stumbling all around the apartment." Samuel was already inside but the other two were still at the door when Mauricio pulled out the pepper spray, and Sanchez saw Samuel try to move the hand holding it. Sanchez did not get pepper spray in his eyes.
Things happened "fast." One of the two at the door stayed there while the other one came inside "and grabbed an object and slammed it over Mauricio's head." Sanchez did not get a good look at the object, but it "looked like" a television. Sanchez could not recall exactly when the person who threw the television entered the apartment because he was focusing on the person at the door, but "everybody was inside that apartment when it all happened."
Sanchez was focused on the person at the door because that person had a knife in his hand. Sanchez could see two inches of the blade. The tip of the knife "had, like, a hook on it." According to Sanchez, the person who had the knife was not the person who dropped the television on Mauricio's head. "Mauricio's back had hit the couch; and right after that, the TV got down on his head; and then right after that, the knife came out. So the person that had the knife couldn't do both things at the same time." Sanchez said defendant was the person at the door.
Defendant was "[i]nside, by the door," and he asked Sanchez and Gonzales if they were involved. "At the same time he was confronting us, he was taking [the knife] out." Sanchez told defendant, "I'm just here to get a haircut," and defendant told him and Gonzales to leave. As they left, Sanchez saw defendant "go towards Mauricio" with the knife in his hand. Sanchez did not see defendant or anyone stab Mauricio.
Sanchez hurried past Martell, who was standing at the door, "[p]artway in." Martell was not paying attention to Sanchez. "He was more concentrated on what was happening to Mauricio." Sanchez said Martell looked "like, traumatized from what was going on." Sanchez did not agree that Martell had remained outside the entire time. If he had, Sanchez would have seen him behind defendant as defendant pulled out the knife, "[a]nd . . . I remember not seeing nobody behind him when he was pulling out the knife." Sanchez explained that there was "enough time in the -- in the total time where the knife was pulled out and [defendant] pulled out the knife and went towards Mauricio. The time that I focused on [defendant] walk[ing] over there, that was enough time for [Martell] to go back to the door."
Once outside, Sanchez ran to the right and "then . . . I looked back." Sanchez saw defendant, with the knife in his hand, about 21 feet behind him. Defendant chased Sanchez through the parking lot of the apartment complex for 20 or 30 yards. Sanchez got away by jumping a fence into another apartment complex. From the other side of the fence, Sanchez looked back "to see what he was going to do next" and saw defendant getting into the passenger seat of a blue van. The van left the apartment complex, and Sanchez called the police.
San Jose Police Officer Maria Solomon responded to the Ortizes' apartment and took a statement from Sanchez, who told her there had been three aggressors, one of whom had chased him with a knife and fled.
Paramedics transported Mauricio to the hospital, where Dr. Gregg Adams, a trauma surgeon, treated him for multiple stab wounds and classified his injuries as major trauma. Mauricio had suffered three stab wounds to his right flank. His right lung had collapsed, and the knife had pierced his colon. He developed peritonitis, required surgery, and spent six days in the hospital.
On July 3, 2009, officers went to Martell's apartment looking for defendant. Martell answered the door, and Valerie came out of the bedroom. Entering the apartment, the officers announced themselves at least three times but no one else responded. They found defendant hiding in the bedroom and arrested him.
II. Procedural Background
Defendant, Martell, and Samuel were tried together in a single proceeding. Mauricio, Gonzales, Sanchez, Adams, and several law enforcement officers testified for the prosecution.
Martell and Samuel were charged by information with burglary (§§ 459, 460, subd. (a) [count 1]) and assault with a deadly or dangerous weapon or by means of force likely to produce great bodily injury (§ 245, subd. (a)(1) [count 2]), and it was specially alleged against each of them that the burglary was a violent felony because a nonaccomplice had been present (§ 667.5, subd. (c)(21)).
After the People rested their case-in-chief, Martell took the stand in his own defense. He testified that when he arrived home from work on July 1, 2009, Valerie complained that Mauricio had harassed her about the putty. She was still complaining after dinner, but Martell "didn't want to deal with the situation" and went outside to smoke a cigarette. Defendant, whom Martell had known for about a month, arrived in a van, and he and Martell were conversing when Samuel walked over and said Mauricio needed his putty. Returning to the apartment, Martell saw Mauricio and Samuel arguing; he was attempting to stop the argument when Mauricio tried to slam the door in their faces. Martell had his hand on the door frame, and he instinctively blocked the door with his foot to protect his fingers. "Nobody else was pushing on the door."
Mauricio said he had something for them and sprayed mace in their faces. Samuel tried to grab the can, and "[s]omehow they clashed onto each other" and "fell" into the apartment. Martell remained outside. "[I]t looked like Sam was getting beat up," and Martell shouted at Mauricio to get off of him. Defendant came up and ran into Mauricio's apartment. Martell said, "I seen him grab a TV or something . . . and toss it towards the two that were fighting." Gonzales and Sanchez left. Martell stood on the doorstep a few seconds longer, then went into his own apartment to rinse out his eyes.
He went back outside, "[a]nd by that time, there was blood everywhere." As Martell yelled to Valerie to call 911, Mauricio came to the doorway. "He was screaming at me still," Martell said. Mauricio told Martell, "You guys stabbed me." Martell saw defendant leave the complex in a van.
Martell said Samuel had blood on him; his clothes were ripped, his nose was bleeding, and "[h]is eyes were full of mace." "And he's freaking out." Samuel told Martell, "I'm going to go to jail for something I didn't do." Martell told him to sit down, be calm, and wait, because the police were on their way. When he heard sirens and saw a police car pull up, Martell went outside and flagged down the officer.
Martell and Valerie were detained but released later that night. Samuel was arrested. Two days later, police came to Martell's apartment looking for defendant, and when they asked Martell who was inside, he did not tell them defendant was there.
Martell was arrested 10 days after the fight, and when the police questioned him, he "just started spilling" what had happened. At trial, he admitted he had "probably" been "untruthful" in failing to mention the television that was dropped on Mauricio's head. He claimed not to recall telling a detective that defendant, whom he knew as "Lucky," had stabbed Mauricio. He later admitted telling her that, but said he could not remember why. "It was a guess." Later, he said he did not remember saying that Lucky did the stabbing. "I didn't know he stabbed him. It had to be something I heard, because it was not something I seen."
Asked what it looked like defendant was doing after the television hit Mauricio, Martell responded, "Maybe grabbing them apart. I don't know." Martell did not intervene in the fistfight because "[i]t was just a fight." "I didn't think they were going to kill each other." Martell said he "had no intentions whatsoever of any of this going this far at all." "I thought it was just going to be verbal . . . . I never thought that anything would happen like this." Martell did not recall telling a detective that "everybody, you know, whoever, . . . they need to be coming out clean with the truth, because this is a serious matter. If I get thrown in this shit for something I didn't do, I'm going to be pissed." He conceded that it sounded like something he would say.
Called to testify in Martell's defense, San Jose Police Officer James Pickens said Martell flagged him down when Pickens drove into the apartment complex. Martell was wearing shorts, and Pickens did not observe any blood on him. Martell rested his case.
Samuel testified in his own defense. He and Mauricio had a "normal" relationship before July 1, 2009. Samuel knew nothing about the borrowed wall putty, and Mauricio was "[j]ust disrespectful" when he started yelling at him about it. They were arguing when Martell intervened. Mauricio "started getting mad" and tried to slam the door, but Martell blocked it with his foot. "There was no pressure on the door at all." Samuel was not sure what happened after that "[b]ut the door came open, and [Mauricio] pepper sprayed me right in the face."
Samuel "panick[ed]" and tried to grab for the pepper spray, "and me and Maurice started wrestling." Samuel could not see, and he felt his body "just flying everywhere." He "heard people yelling, like knock it off or stop or something." He felt "something heavy" hit his head but did not see where it came from. The fight ended when Mauricio "started screaming out, 'I got stabbed.' " Samuel noticed Valerie "[p]ulling us apart," and he ran back to Martell's apartment. His shirt was ripped, his eyes were burning, and he had "lots" of blood on him.
Samuel admitted he lied when he told the police Mauricio had yanked him out of a rocking chair in Martell's apartment, dragged him back to Mauricio's apartment, and pepper sprayed him. He explained that he was "scared." "All I know, there's nobody around that was involved in the fight. And he's just saying, 'I got stabbed, I got stabbed.' " Samuel admitted that he lies in situations that scare him. He admitted he lied when he told the police Martell had borrowed the wall putty after punching a hole in the wall.
Samuel testified that he had not seen defendant in Mauricio's apartment. Asked why he told police defendant was "in the fight," he explained that Mauricio had said, "Your friend stabbed me." (Italics added.) Samuel assumed Mauricio was referring to defendant rather than to Martell "because [Mauricio] knows Martell's name." Samuel volunteered to show police where "Lucky" lived and later did so because "[n]o one knew how to identify him," and "everybody was thinking that I stabbed [Mauricio] because I got blood all over me."
At the close of Samuel's case but before defendant's case, Martell moved for a judgment of acquittal (§ 1118.1). The court granted the motion on count 1. It denied the motion on count 2 and also denied Martell's motion to dismiss the case in the interest of justice (§ 1385). The court stated it was "prepared to make an offer" if Martell wished to enter a plea to count 2: "The Court would consider . . . a grant of a Section 17, credit for time served, and it would be informal probation."
Later that same day, Martell accepted the court's offer. The court reduced count 2 from a felony to a misdemeanor (§ 17, subd. (b)(5)), and Martell pleaded no contest to misdemeanor assault. The court suspended imposition of sentence, granted him credit for time served, placed him on informal probation for one year, and ordered that he be "released forthwith."
Samuel also moved for a judgment of acquittal and for dismissal in the interest of justice. His motions were denied.
Defendant's counsel then brought up some "housekeeping" matters, asking the court to exclude photographs of defendant's tattoos and to "pare down" the number of prior felony convictions that would be admitted to impeach him. The court excluded the photographs as more prejudicial than probative but ruled that defendant could be asked whether his arms were covered with tattoos. The court also ruled that evidence of defendant's numerous prior convictions, including one for assault with a deadly weapon (a knife), two for burglary, one for forgery, and one for vehicle theft, would be admitted to impeach him if he were to testify. The court would also permit the district attorney to question defendant about a toxicology report that had come back positive for methamphetamine use.
When the jury returned to the courtroom, the court explained that the counts against Martell "no longer need to be decided in this case" and advised the jurors not to speculate about or consider why that was so.
Mauricio had earlier testified about his prior felony assault conviction, and the defense began its case by asking the court to take judicial notice of the court file reflecting that 1995 conviction. The court did so, and without offering further evidence or calling any witnesses, the defense rested. There was no rebuttal by the prosecution, and the jury was dismissed for the day.
That afternoon, Samuel accepted the prosecution's offer to plead no contest to assault by means of force likely to produce great bodily injury in return for dismissal of the burglary count and three years' probation with a maximum four-year sentence for a violation of probation. The jury was later told that "[t]he Court has already instructed you that . . . there is one defendant in this case, that you are not to speculate in terms of what happened to the other two defendants. The fact that those defendants are not now present is not something for you to consider. [¶] You do, however, consider all of the evidence, which includes the testimony that was offered by those defendants."
Defendant moved for a mistrial that afternoon. His trial counsel explained that there had been "some indication" several days before that Martell and Samuel were entering into negotiations, "and then when we came back from . . . lunch . . . , there was an indication that . . . discussions had broken down." "And the Court made clear that it was . . . the People's right and the defendant's [sic] rights to enter into those negotiations at any time, and it was my indication informally that I was concerned about fairness to my client and due process to my client based upon what happened up to that moment, a joint defense effort. [¶] . . . [¶] I cannot say that . . . is the only reason that [defendant] did not take the stand in this case. I can say that [it] early impacted his decision to do that. And I will for the record list five things, five tactical decisions that were made jointly and were made with compromise in this case, and I will say on the record as an officer of this Court that those decisions would all have been different had I not entered into a joint defense agreement with codefendant Counsel. [¶] The first was opening the door . . . regarding Mauricio['s] prior violent conduct. . . . [O]bviously there was a tactical issue in question for my client about whether to open that door, given his own 245 conviction. . . . [¶] Number two, the cross-examination of . . . Martell by myself was severely curtailed as a courtesy to his attorney. . . . [¶] The third would be the cross-examination of [Samuel], which, again, was severely curtailed as a courtesy to his attorney and in an effort to enter compromise. [¶] The fourth would be my decision not to call Valerie . . . as a witness. . . . [¶] Fifth -- and I'll -- you know, should the Court deny my mistrial motion, I'll obviously be making these points much more fully in a motion for a new trial. But also the -- my decision not to pursue impeachment evidence regarding a defense witness who we interviewed was the apartment manager for the complex, who had several acts of, I guess, bad character or misconduct by Mauricio . . . as a tenant. We did not call him as a witness, because he also had negative things to say about . . . Martell. And in an effort to keep that door closed, and again as a compromise with Counsel, I did not call that witness to testify. [¶] These are the five things at this point that I can offer to the Court. Obviously, the first being the most important, in my view."
Responding to the mistrial motion the next morning, the district attorney argued that the decision to open the door to Mauricio's prior violent conduct was a tactical one "that . . . does not rise to a denial of due process for [defendant]." She pointed out that Martell had entered his plea before defendant began his case, so the defense could have recalled him during its case-in-chief and thoroughly cross-examined him then. The defense could also have presented the apartment manager's testimony, since there was no longer any issue about showing Martell in a bad light. "There's no denial of due process rights when this is all evidence that could have been presented to a jury." The court denied the mistrial motion.
Raising the same issues, defendant's trial counsel then moved to reopen the case and for a two-week continuance (from January 12, 2010 to January 25, 2010) "to allow me to subpoena the appropriate witnesses and to . . . pursue some issues that I was not able to pursue based on the joint defense agreements." Defendant's ability to argue third party culpability had been "hampered," his counsel contended, when Martell and Samuel suddenly "accepted culpability," and she needed "to fully explore the defense options that I set aside, or I need to consider whether there's been ineffective assistance of counsel. But either way, my client's facing 29 years, and he's entitled to a fair trial, and he's not getting one, in my view."
The court denied the motions. "The fact that codefendants settle their cases during a trial is something that certainly does happen," the court explained. "The Court doesn't view it as something that is highly unusual." "For . . . co-defense counsel not to advise their clients to accept settlement, if they view it in . . . those specific clients' best interests, of course, is a conflict that Counsel can't have." "In other words, while the Court understands that there was a mutual understanding . . . , certainly Counsel could not advise their clients that there might not be resolutions along the way. . . . Certainly, that is something that is foreseeable . . . . [I]t isn't possible for Counsel to state a hundred percent that there won't be conflicts amongst Counsel in terms of their visions . . . of how the case should proceed."
The jury was instructed the next morning, heard closing and rebuttal arguments, and began deliberating. Defendant was convicted on all counts, and the associated enhancement allegations were found true. He admitted the priors, and he was sentenced to 19 years in prison. Defendant filed a timely notice of appeal.
III. Discussion
A. Motion to Reopen
Defendant contends the court abused its discretion and violated his constitutional rights when it denied his motions. We disagree.
"The decision to grant or deny a motion to reopen . . . remains in the discretion of the trial court." (People v. Monterroso (2004) 34 Cal.4th 743, 779; § 1094.) "In determining whether a trial court has abused its discretion in denying a defense request to reopen, the reviewing court considers the following factors: the stage the proceedings had reached when the motion was made; (2) the defendant's diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence.' [Citation.]" (People v. Jones (2003) 30 Cal.4th 1084, 1110 (Jones))
Considering those factors here, we discern no abuse of discretion. The first factor supports the court's decision because although the motion to reopen was not by itself particularly untimely (see Jones, supra, 30 Cal.4th at p. 1111), it was coupled with an "attendant" motion for a two-week continuance that would have unduly prolonged the trial. (Compare People v. Earley (2004) 122 Cal.App.4th 542, 546-547 [no abuse of discretion in denying motion to reopen, made after both sides had rested but before the jury was instructed, because "it would have prolonged the trial and may have required the prosecution to present rebuttal testimony from an expert who, in turn, would first have to conduct further testing"] with Jones, at p. 1111 [as the Attorney General conceded, "[t]here would be no undue consumption of time: the simple introduction of a photograph would take little time, and the defense did not propose to introduce any further evidence . . . ."].) Here, the trial had already run slightly longer than anticipated, which had caused one juror to express concern about missing the start of the school year, and jurors had also been told that they would be instructed and hear arguments of counsel that day.
The second factor also supports the court's decision, because the reason proffered for the continuance—to permit the defense to "subpoena the appropriate witnesses" (i.e., Martell, Samuel, the apartment manager, Valerie, and "police officers to lay foundations and things like that")—evidences a lack of diligence. Since Martell entered his plea and was sentenced before defendant began his case-in-chief, defendant could have recalled him as a witness that same afternoon, as his trial counsel had to concede. (People v. Funes (1994) 23 Cal.App.4th 1506, 1520 [motion to reopen properly denied where the defense "could easily have introduced" the proffered evidence during cross-examination of the prosecution's witnesses or during the defense case.].) We are not persuaded by defendant's argument on appeal that it was not until Samuel also entered a no contest plea that the testimony of both codefendants became "critical" since both codefendants' "sudden departure" from the case was "highly suggestive of the conclusion that [defendant] . . . wielded the knife." The argument assumes jurors would have speculated that Martell's and Samuel's departures "implied innocence on their part." Jurors might just as easily have speculated that the departures implied guilt, in our view, but they were properly instructed not to speculate at all about why Martell and Samuel were no longer in the case. We " 'must assume that jurors are intelligent persons and capable of understanding and correlating all jury instructions which are given.' [Citation.]" (People v. Richardson (2008) 43 Cal.4th 959, 1028.)
Defendant has also never satisfactorily explained why he had not previously served the apartment manager and Valerie with trial subpoenas to ensure their prompt appearances in the event his counsel decided to call them as witnesses. These were not newly discovered witnesses; the defense had previously interviewed the apartment manager, and as defendant concedes, both the manager's and Valerie's addresses were matters of public record. Had they been subpoenaed earlier, their testimony could have been presented during defendant's case-in-chief, particularly since there was no longer any reason to accommodate Martell's counsel's concern about the impact of their testimony on Martell's case. If the apartment manager's and Valerie's testimony was as "critical" as defendant now claims it was, we think he would have had both of them waiting in the wings. His failure to do so showed a lack of diligence.
The third factor also supports the court's decision to deny the motions. "Presumably one of the reasons underlying the requirement of diligence is that a jury may accord undue weight to evidence which is admitted close to the time deliberations begin." (People v. Rodriguez (1984) 152 Cal.App.3d 289, 295 (Rodriguez).) That was not a serious issue in Rodriguez, where the case was tried to the court, but it would have been an issue here, particularly where the evidence defendant sought to introduce would have been presented to the jury after a two-week hiatus.
Defendant argues in his reply brief that his counsel "made it clear that she would manage with whatever time the court might allow." The argument lacks merit. In support, defendant quotes his counsel's statement that she would be "happy to go in camera [to] detail for the Court what exactly I would be doing with the one, two, three, four, five, six court days that I'm requesting." He fails to mention that as his counsel recognized, she could characterize her request as "essentially asking for six court days" only because the Martin Luther King Day holiday and a court furlough day were included between January 12, 2010, when she made the request, and her proposed ending date of January 25, 2010.
The fourth factor strongly supports the court's denial of the motions. Although a lack of diligence and/or a failure to present proffered evidence at the earliest possible time can be overcome if that evidence is particularly significant (see Rodriguez, supra, 152 Cal.App.4th at pp. 293, 296), here, the value of the evidence was slight.
The defense proposed eliciting "reputation evidence" from the apartment manager to discredit Martell and Mauricio. Any such evidence would have been cumulative. Mauricio testified about the constant noise from next door and told the jury Martell was "torturing" him by keeping him awake at night. Martell himself told the jury about his frequent loud fights with Valerie, reported that neighbors besides Mauricio had complained to the apartment manager and to the police about them, and admitted that his family had been threatened with eviction and ultimately "kicked out" of their apartment.
Testimony from the apartment manager discrediting Mauricio would also have been cumulative. Both Martell and Samuel described their problems with Mauricio. The jury also heard from Mauricio, who did much to discredit himself. He admitted a felony assault conviction at age 22. He admitted that his statement to police about Martell punching and kicking him was merely an assumption. Mauricio made many gratuitous statements at trial. He told the jury that the defendants "had already plotted this out" and had been "stalking" him "for months." He claimed that his attackers "belonged to a Nazi organization gang," and said defendant "carried himself" like a white supremacist. The court had to repeatedly admonish him to "[a]gain -- again, please, listen to the question, and please respond only to the question," and much of his testimony was stricken as nonresponsive and/or speculative. Mauricio was such a troublesome witness that the district attorney felt compelled to comment during closing argument (as she apparently had done during jury selection) that he was "not a terribly likeable person. He is difficult on the stand. He won't answer questions straight. He had to keep adding his own little words in there." The jury had ample opportunity to judge Martell's and Mauricio's credibility.
The defense planned to impeach Martell and Samuel with their belated "acceptance of responsibility." "Because if [Samuel] was pulled in and he got the crap beat out of him, which is what the photographs show," defendant's trial counsel argued, "then why did he [plead] guilty to a 245?" We do not find Samuel's testimony inconsistent with his no contest plea to misdemeanor assault. He told the jury that when Mauricio pepper sprayed him, he "[s]tarted panicking" and grabbed for it. In doing so, he admitted he entered the apartment: "Well, yeah. I went into his apartment." Samuel never denied fistflghting with Mauricio. Given his prior testimony, we think defendant's trial counsel was unlikely to have elicited an admission from him that he lied on the stand. But even if a tendency to lie could have been inferred from the testimony he would have given, it would not have added anything to defendant's case. Samuel had already admitted he lied to the police. He had also admitted he had a habit of lying in situations that scared him.
As defendant's trial counsel recognized, the no contest pleas, without more, did not prove Martell and Samuel lied on the stand. As she acknowledged, Samuel could "get on the stand now and say I did it because my lawyer told me to and I was exposed to a strike . . . ."
Additional testimony from Martell would not have added anything of import to defendant's case either. Although Martell denied throwing the television, there was ample circumstantial evidence to suggest he had in fact done so, and that evidence supported his no contest plea to misdemeanor assault. The jury had already heard Martell admit that it was "probably untruthful" not to mention the television that was dropped on Mauricio's head. Martell had also agreed that he was "just . . . protecting myself" when he kept that detail to himself. Moreover, when defendant's trial counsel asked him whether it was fair to say he "didn't really give a crap about [defendant]," Martell responded, "That's fair to say."
The defense indicated it would call Valerie as a percipient witness and proposed questioning her about "numerous jail recordings" of conversations she had with Samuel and Martell "about acceptance of responsibility or nonacceptance of responsibility." Since Samuel's and Martell's credibility had already been impeached, we do not think Valerie's testimony would have added anything to defendant's case.
The defense proposed calling Valerie to testify about what the defense claimed triggered the entire incident: that defendant heard Valerie tell Mauricio "I'm tired of you jacking off in front of me and my children." This evidence would not have come in through Valerie, however. The court had earlier indicated, before defendant presented his case and after the district attorney argued that the evidence should be excluded as more prejudicial than probative, that if the evidence was going to come in at all, "[defendant] has to be the one that explains it" (i.e., "to explain why he went there"). "I want to think about it more, because it is important," the court told the parties. The court subsequently overruled the district attorney's Evidence Code section 352 objection "with the instruction to defense counsel that any issue beyond what [defendant] heard, it's not to be discussed without a further discussion and a record being made."
In sum, the stage of the proceedings, defendant's lack of diligence, the prospect that the jury would accord the new evidence undue emphasis, and its minimal significance weighed in favor of the court's decision to deny the motions to reopen and for a continuance. (Jones, supra, 30 Cal.4th at p. 1110.) There was no abuse of discretion here.
The cases defendant relies on do not compel a different conclusion because both are factually distinguishable. In People v. Newton (1970) 8 Cal.App.3d 359 (Newton), a bus driver identified the defendant as the person who had shot and killed a police officer a few feet from the front door of the bus. (Id. at p. 370.) The bus driver's testimony was the only direct evidence that the defendant was the shooter. (Id. at p. 381.) The driver had been interviewed by police within two hours of the shooting, and a copy of the transcript of his tape recorded statement had been given to the defense. (Ibid.) At trial, defense counsel "made extensive use of that copy to impeach the driver's in-court identification of the defendant. (Id. at pp. 381-382.) That copy read as follows: " 'Q' [By the interrogating police officer] About how old was [Officer Frey's assailant]? [¶] 'A. I couldn't say because I only had my lights on, I couldn't -- I did get a clear picture, clear view of his face but -- because he had his head kind of down facing the headlights of the coach . . . I couldn't get a good look -- ' " (Id. at p. 382.) During closing argument, defense counsel referred to the driver's statement that he "couldn't get a good look" but omitted any reference to his statement that he "did get a clear picture, clear view of his face." (Id at p. 382.)
During deliberations, the jury asked for a copy of the transcript. Defense counsel had "mutilated" his, so he asked the prosecution for another copy. The new copy reflected that the driver had said, " 'I didn't get a clear picture, clear view of his face . . . .' " (Newton, supra, 8 Cal.App.3d at p. 383.)
The defense "immediately" moved to reopen the case to apprise the jury of this newly discovered evidence. The motion was denied. The defense obtained the original recording, and upon listening to it, the court determined that the driver had indeed said " 'didn't' " instead of " 'did.' " (Newton, supra, 8 Cal.App.3d at p. 382.) The court denied a renewed motion to reopen but ordered a correction made to the written transcript and a corrected copy " 'sent to the Jury just in an ordinary manner without any comment or instructions.' " (Id. at p. 382.) Convicted of involuntary manslaughter, the defendant appealed, asserting that denial of the motion was an abuse of discretion.
The Court of Appeal agreed. Reopening would have been inconvenient, the court explained, but it was neither impossible nor unreasonable. There was no lack of diligence on the defense's part, and "the court could have minimized the possibility that the jury would overemphasize the newly discovered evidence." (Newton, supra, 8 Cal.App.3d at p. 383.) The evidence was significant because the driver was the only witness to positively identify the defendant as the shooter, and the prosecution had "vigorously emphasized" the word " 'did' " in his rebuttal argument. Whether the driver did or did not get a good look at the shooter's face was especially material since he had described him on the night of the shooting as a " 'very short . . . sort of pee-wee type fellow . . . no more [than] five feet' " tall and weighing 125 pounds, but had at trial testified that he was of "'medium height and build.' " (Id. at pp. 383-384.)
This case is different. Here, unlike in Newton, the evidence was not material, and counsel was not diligent in offering it. Unlike in Newton, here, all four factors favored denying the motions. Newton is distinguishable.
In Jones, the prosecutor's objection to the admission of a photograph alerted defense counsel that he had inadvertently failed to lay a foundation for it. He immediately moved to reopen the case to have a witness authenticate the photograph, but the motion was denied. The California Supreme Court held that denial of the motion was an abuse of discretion. The prosecution had appropriately conceded the first two factors since the motion had been timely made and authenticating the photograph "would take little time," there was no risk that the jury would have given the photograph undue weight, and its evidentiary value was significant. The court found the error harmless, however.
Here, unlike in Jones, defendant did not "immediately" move to reopen his case. The evidentiary value of the proffered testimony was minimal, and presenting it after a two-week continuance would have unduly delayed the trial and caused the jury to afford it undue weight. Jones is also distinguishable.
B. Punishment for Enhancements
At sentencing, the court imposed the upper term for defendant's burglary conviction, then doubled it because of his strike prior. The court imposed concurrent one- and three-year terms for the personal use (§ 12022, subd. (b)(1)) and personal infliction of great bodily injury (§ 12022.7, subd. (a)) enhancements, explaining that it did so "since those have been used with respect to aggravation." Defendant contends, and the Attorney General concurs, that it was error to impose concurrent terms for those enhancements; instead, that the proper course was to strike that punishment. We agree.
Section 12022, subdivision (b)(1) mandates a one-year enhancement if the defendant personally used a deadly or dangerous weapon in the commission of the offense. (§ 12022, subd. (b)(1).) Section 12022.7, subdivision (a) mandates a three-year enhancement if the defendant personally inflicted great bodily injury "on any person other than an accomplice in the commission of a felony . . . ." (§ 12022.7, subd. (a).) Although the choice of the upper, mid-, or lower term is a matter within the court's sound discretion, the court may not, as a general rule, "impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law." (§ 1170, subd. (b).) "To comply with section 1170(b), a fact charged and found as an enhancement may be used as a reason for imposing the upper term only if the court has discretion to strike the punishment for the enhancement and does so. The use of a fact of an enhancement to impose the upper term of imprisonment is an adequate reason for striking the additional term of imprisonment, regardless of the effect on the total term." (Cal. Rules of Court, rule 4.420(c).)
Here, the court expressly noted that it was imposing the upper term for the burglary conviction because of the enhancement allegations. It should not have imposed the one- and three-year terms on those enhancements, and the judgment must be modified to strike them. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(c).)
III. Disposition
The judgment is modified to strike the concurrent one- and three-year terms imposed for the section 12022, subdivision (b)(1) and section 12022.7, subdivision (a) enhancements to the burglary conviction. The trial court shall prepare an amended abstract of judgment reflecting the modifications and forward a certified copy of that abstract to the Department of Corrections and Rehabilitation. As modified, the judgment is affirmed.
Mihara, J. WE CONCUR: Bamattre-Manoukian, Acting P. J. Lucero, J.
Judge of the Santa Clara County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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