Opinion
No. C042487.
11-18-2003
THE PEOPLE, Plaintiff and Respondent, v. ALEXANDER SERNA, Defendant and Appellant.
A jury convicted defendant Alexander Serna of three counts of transporting, importing, selling, furnishing, administering, or giving away heroin (or offering to do so). (Health & Saf. Code, § 11352, subd. (a).) With respect to two of the counts, the jury found that he sold or offered to sell 14.25 grams or more of the drug. (Pen. Code, § 1203.07, subd. (a)(2); Health & Saf. Code, § 11352.5, subd. (2).) Defendant admitted enhancements for having a prior drug conviction (Health & Saf. Code, § 11370.2, subd. (a)) and for having served two prior separate prison terms (Pen. Code, § 667.5, subd. (b); further section references are to the Penal Code). He challenged whether a prior burglary qualified as a "strike" under the "three strikes law," but the court sustained the allegation. (§§ 667, subds. (b)-(i), 1170.12.) Defendant was sentenced to state prison for an aggregate term of 15 years and eight months.
On appeal, defendant claims (1) as given by the trial court, CALJIC No. 3.14 wrongly instructed the jury on the mental state required for conviction, and (2) his prior burglary does not qualify as a strike. We shall affirm the judgment.
FACTS
Two of the offenses arose from the sales of large amounts of heroin on January 17, 2002, and February 6, 2002. The third offense arose from the discovery of a smaller amount of heroin on defendants person when he was arrested after the second sale.
Both sales were arranged by undercover officer Carlos Ponce and by Isaias Zuniga, who was later charged along with defendant and others involved in the heroin transactions.
On the first occasion, Ponce met Zuniga in the parking lot of a drug store. Zuniga indicated the heroin had not yet arrived. Thereafter, a car was driven into the parking lot and Marcelino Jaimes got out. Zuniga contacted Jaimes and then returned and, in exchange for $1,380, Zuniga gave Ponce a brown paper bag with approximately two ounces of a substance containing heroin. When Jaimes left, defendant was observed in the drivers seat of the car.
About one hour and one-half before they met for the second sale, Zuniga told Ponce he had three ounces of heroin and was in the process of getting the six ounces that Ponce had requested. In the meantime, officers were conducting surveillance at the house where defendant and Jaimes had apparently been staying. The officers observed suspicious activities suggesting involvement in providing heroin for the sale. At one point, for example, defendant was observed talking to the driver of a silver Chevy Malibu and apparently exchanging some items.
When Ponce arrived in the parking lot for the heroin purchase, Zuniga and Rogelio Baltazar were sitting in the silver Malibu. Zuniga told Ponce that his order was not yet there. After Jaimes and defendant drove to a parking lot across the street, Zuniga indicated to Ponce that the drugs were there and asked him to go across the street to get them. Ponce said that he would stay where he was and that Zuniga should come back. Zuniga and Baltazar drove across the street in separate vehicles, and Jaimes met with Zuniga by Zunigas car. Jaimes and Zuniga then contacted Baltazar, and Jaimes handed him something.
Baltazar drove back across the street and met with Ponce. Ponce gave Baltazar $4,000, and Baltazar handed him a black pouch with six individually wrapped blocks of a substance containing heroin.
Shortly thereafter, defendant was arrested nearby. He had approximately 1.2 grams of a substance containing heroin. There were syringes in the back of a truck parked at the house where defendant and Jaimes had been earlier that day, and there was an open bag of water balloons on a table inside the house. An officer testified that heroin is frequently packaged in those types of balloons. It was stipulated that defendant was aware of, and had knowledge of, the nature of heroin.
DISCUSSION
I
Although he did not raise the objection in the trial court, defendant claims the court erred by instructing the jury with a slightly modified version of CALJIC No. 3.14, as follows: "Merely assenting to or aiding or assisting in the commission of a crime without knowledge of the unlawful purpose of the perpetrator and without the intent or purpose of committing, encouraging or facilitating the commission of a crime is not criminal. Thus a person who assents to, or aids, or assists in, the commission of a crime without that knowledge and without that intent or purpose is not guilty of a crime." (Emphasis added.)
Even in the absence of an objection at trial, we may review any instruction given "if the substantial rights of the defendant were affected thereby." (§ 1259.) However, as we will explain, the slightly modified version of CALJIC No. 3.14 given to the jury did not adversely affect a substantial right of defendant. Hence, there was no reversible error.
As defendant correctly points out, except where the natural-and-probable-consequences doctrine applies, to secure a conviction there must be proof beyond a reasonable doubt that an alleged aider and abettor acted with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (People v. Lee (2003) 31 Cal.4th 613, 623-624; People v. Beeman (1984) 35 Cal.3d 547, 560.)
Defendant argues "the CALJIC No. 3.14 instruction [given in this case] was erroneous because it charged conjunctively that a person who assists a crimes commission without knowledge and without intent is not guilty. But aiding and abetting required both knowledge and intent. Thus, the instruction should properly have charged disjunctively that a person who assists a crimes commission without knowledge or without intent is not guilty." According to defendant, the instruction misdescribed an element of the crime and violated his constitutional rights.
We are not persuaded because a reasonable jury considering CALJIC No. 3.14 together with all of the instructions given by the trial court (People v. Reliford (2003) 29 Cal.4th 1007, 1013; CALJIC No. 1.01) would not have interpreted it in the manner advanced by defendant.
In addition to CALJIC No. 3.14, the jury was instructed with CALJIC No. 3.01 as follows: "A person aids and abets the commission of a crime when he or she, one, with the knowledge of the unlawful purpose of the perpetrator and, two, with the intent or purpose of committing or encouraging or facilitating the commission of a crime, and, three, by act or advice, promotes, encourages or instigates the commission of a crime. [¶] A person who aids and abets the commission of a crime need not be present at the scene of the crime. Mere presence at the scene of a crime which does not in itself assist the commission of a crime does not amount to aiding and abetting. Mere knowledge that a crime is being committed and the failure to prevent it does not amount to aiding and abetting." (Emphasis added.)
This instruction made it abundantly clear that both proof of a persons knowledge of the unlawful purpose of the perpetrator and proof of the persons intent to encourage or facilitate the commission of a crime are necessary to establish that the person is guilty as an aider and abettor. Accordingly, a reasonable jury would not interpret CALJIC No. 3.14 as implying that a defendant is guilty as an aider and abettor if knowledge is present but intent is lacking, or vice versa. In other words, there was no prejudicial error.
II
We also reject defendants claim that his prior conviction for burglary was not a "strike" within the meaning of the "three strikes law."
In 1988, defendant was charged with burglary of an inhabited dwelling house. He entered a negotiated plea of guilty to first degree burglary with the understanding that he would be placed on probation and ordered to serve no more than one year in county jail as a condition of probation. Defendant was told that if he were to violate probation, he could be sent to state prison for a term of two, four, or six years. He was also told that his conviction was for a serious felony that could be used as an enhancement in subsequent cases.
Consistent with the plea agreement, defendant was placed on felony probation for three years with a six-month jail term imposed as a condition of probation. He successfully completed probation.
In 1993, the probation department recommended that the trial court reduce defendants conviction to a misdemeanor pursuant to section 17 and also grant a dismissal and release from penalties pursuant to section 1203.4. Although the parties agree that the court granted both the reduction and the dismissal, the record indicates otherwise. Although the court dismissed the case and released defendant from penalties, its order did not reduce the conviction to a misdemeanor. Instead, a typewritten note on a record of the court proceedings states: "Petition to Reduce Felony to Misdemeanor pursuant to Section 17PC is denied."
Indeed, first degree burglary of an inhabited dwelling house cannot be reduced to a misdemeanor because it is a straight felony (§§ 17, subd. (a), 450, 461) not a "wobbler," i.e., a crime for which, absent a grant of probation, the Legislature has specified a period of punishment in either state prison or the county jail. (See § 17, subd. (b).)
Defendant attempts to recast his conviction as a misdemeanor by arguing that "although he was nominally convicted of a first-degree burglary, he was substantially sentenced for a second-degree burglary" in that he was "imprisoned in county jail for six months like a second-degree burglary." Not only does defendant ignore that the six-month term was a condition of probation which can be imposed for a straight felony, he asks us to rewrite the statutory scheme, which we cannot do. Thus, his reliance on the provisions of subdivision (b) of section 17 is unavailing because those portions of the statute apply only to wobblers. Likewise, there is no merit in defendants argument that the courts order ultimately dismissing the burglary charge pursuant to section 1203.4, following defendants successful completion of probation, "operated as a matter of law to erase [sic] the prior felony conviction to a misdemeanor." Again, defendant seeks to rewrite the statutory scheme.
In any event, the "three strikes law" provides that "[t]he determination of whether a prior conviction is a prior felony conviction for purposes of [the three strikes law] shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor." (§§ 667, subd. (d)(1), 1170.12, subd. (b)(1) italics added.) Thus, the fact that a disposition results in "[t]he suspension of imposition of judgment or sentence" does not affect the convictions validity as a strike. (§§ 667, subd. (d)(1)(A), 1170.12, subd. (b)(1)(A).)
Accordingly, the subsequent order dismissing the charge pursuant to section 1203.4 did not affect the validity of the conviction for purposes of the "three strikes law." In fact, a dismissal pursuant to section 1203.4 is qualified by the terms of that statute, which states in pertinent part: "However, in any subsequent prosecution of the defendant for any other offense, the prior conviction may be pleaded and proved and shall have the same effect as if probation had not been granted or the accusation or information dismissed." (& sect; 1203.4, subd. (a); People v. Diaz (1996) 41 Cal.App.4th 1424, 1430 ["[t]his provision of section 1203.4 . . . explains the omission of section 1203.4 from [the "three strikes law"]: there was no need to include it"]; see also People v. Barro (2001) 93 Cal.App.4th 62, 66-67 [dismissal under section 1203.4 does not have same effect as dismissal under section 1385].)
In sum, the first degree burglary conviction qualified as a "strike" under the "three strikes law," notwithstanding the fact that it was later set aside and the charge was dismissed pursuant to section 1203.4.
DISPOSITION
The judgment is affirmed.
We concur: HULL, J., and ROBIE, J. --------------- Notes: Accordingly, portions of the probation report and attached documents refer to the dismissal pursuant to section 1203.4 but not to any reduction in the offense to a misdemeanor.