Opinion
F076018
11-13-2018
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY TONY SMITH, Defendant and Appellant.
Elizabeth J. Smutz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CMS0279A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kings County. Robert S. Burns, Judge. Elizabeth J. Smutz, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Smith, J. and Snauffer, J.
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On May 16, 2017, a jury convicted appellant Anthony Tony Smith of unlawfully taking a vehicle (Veh. Code, § 10851, subd. (a)/count 1); receiving a stolen vehicle (Pen. Code, § 496d, subd. (a)/count 2); and possession of burglary tools (§ 466/count 3). The jury also found true three prior prison term enhancements (§ 667.5, subd. (b)) and allegations that Smith had a prior conviction within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code, unless otherwise noted.
A first amended information that was filed in this matter on May 15, 2017, charged Smith with four prior prison term enhancements. The enhancements were based on Smith's 2000 convictions for possession of a methamphetamine (Health & Saf. Code, § 11377, subd. (a)), possession of a firearm by a felon (former § 12021, subd. (a)(1)), a 2005 conviction for possession of a controlled substance, and a 2009 conviction for lewd and lascivious conduct with a child under the age of 14 years (§ 288, subd. (a)). However, after the jury did not return a finding on the enhancement based on Smith's lewd and lascivious conduct conviction, the court dismissed that enhancement pursuant to section 1385.
On June 21, 2017, the court sentenced Smith to an aggregate prison term of nine years, a doubled upper term of six years on count 1 and three one-year prior prison term enhancements.
On appeal, Smith contends: (1) the court abused its discretion by allowing the prior conviction allegations to be tried in a unitary trial; and (2) the court erred in imposing one of the prior prison term enhancements. We find merit to this last contention and modify the judgment accordingly. In all other respects, we affirm.
FACTS
The Prosecution Case
The prosecution evidence established that around February 6, 2017, Jose Martinez lent his 2006 Chevy Tahoe to Salvador Guillen. Guillen last saw the Tahoe on February 11, 2017, parked in the parking lot of his apartment complex. On February 12, 2017, when his wife called to tell him the Tahoe was gone, Guillen had the keys to the Tahoe in his possession.
On February 13, 2017, at approximately 12:50 a.m., as the stolen Tahoe was being driven by Smith with a female passenger, Kings County Sheriff's Deputy Timothy Steadman stopped the Tahoe for having a headlight out. After determining the Tahoe was stolen, Deputy Steadman placed Smith and his passenger in the back of separate patrol cars. During a search of the Tahoe, the deputy found a "master key" in the ignition.
During an interview at the jail, Smith told Steadman that he ran out of gas and a man named Poncho allowed him to use the Tahoe. Smith did not know Poncho's real name and he knew only that Poncho lived in the Home Gardens area of Hanford. Smith described Poncho as a "Mexican dude."
The Defense Case
Smith testified that he lived in a trailer on a lot in the Home Gardens area of Hanford and supplied power to the trailer with a gasoline powered generator that also ran a device that heated the trailer. On February 12, 2017, at 10:00 p.m., he ran out of gasoline for the generator. At 12:30 a.m. that night, as he was leaving his trailer, he saw a neighbor he knew as Poncho driving a Tahoe and he flagged him down. Poncho lived in the old Home Gardens area and Smith had only known him for two days. Smith asked Poncho if he would give him a ride to a gas station and Poncho told him to go ahead and take the Tahoe. Someone stopped and picked Poncho up and Poncho told Smith he would be there when Smith returned. Poncho did not hand the keys to the Tahoe to him because they were in the ignition.
Smith described Poncho as a portly man who weighed approximately 240 pounds, was approximately five feet eight inches tall, and was wearing blue jeans and a short-sleeved shirt.
After being shown a picture of the key, which was twisted, Smith testified that if he had seen the key he would have been skeptical about whether the key belonged to the Tahoe.
Smith was impeached with a 2009 conviction for lewd and lascivious conduct with a child under the age of 14 (§ 288, subd. (a)) and a 2000 conviction for being a felon in possession of a firearm (former § 12021, subd. (a)(1)).
Additionally, during direct-examination, defense counsel also elicited from Smith that in 2000 and 2005 he was convicted of possession of methamphetamine.
DISCUSSION
The Drug Possession Convictions
Background
Prior to the start of trial, the court granted the defense's request to bifurcate the prior conviction allegations. However, after the prosecution rested, defense counsel informed the court that Smith wanted to testify. The court then admonished Smith that if he testified, it would unbifurcate the prior conviction allegations and the jury would be entitled to learn about his 2009 lewd and lascivious conduct conviction and his 2000 firearm possession conviction for the purpose of evaluating his credibility. Smith stated that he understood and, nevertheless, wanted to testify. The court then unbifurcated the priors.
Further discussion ensued, during which the court stated that the drug possession convictions did not appear to be relevant because they did not involve moral turpitude. The court then recessed the proceeding to allow defense counsel to confer with Smith. When the proceedings resumed, defense counsel reaffirmed that Smith wanted to testify and the court stated that the drug possession convictions were not admissible to impeach Smith. However, it also explained that these convictions were admissible to show that between his 2000 possession of a firearm conviction and his 2009 lewd conduct conviction Smith had not gone five years without a felony conviction, which would have triggered the five-year "washout" provision of section 667.5, subdivision (b). The court asked Smith if he understood that the court would be telling the jury that they would have to make findings on the prior conviction allegations and that it was going to read all the priors to them; Smith replied that he did. The court asked defense counsel if there was anything else they needed to take up and counsel responded there was not.
See Discussion, infra, at pages 8-9.
After having the jury brought back to the courtroom, the court read the prior conviction allegations and told them they would be asked to make a finding on the allegations. When the defense rested, the court allowed the prosecutor to reopen and present evidence on the prior conviction allegations.
During jury instructions, the court told the jury that the People were alleging that Smith had a 2009 conviction for violating section 288, subdivision (a), convictions for violating Health and Safety Code section 11377, subdivision (a) in 2005 and 2000, and a 2000 conviction for violating section 12021, subdivision (a)(1). It also instructed the jury to:
"Consider the evidence presented on [these] allegation[s] only when deciding whether the defendant was previously convicted of the crimes alleged or for the limited purpose of assessing the defendant's credibility. In assessing the credibility of the defendant you may consider the conviction for [section] 288 subdivision (a) and [section] 12021 [subdivision] (a)(1). You may not consider the convictions for HS [section] 11377 [subdivision] (a) in assessing the defendant's credibility. Do not consider evidence of any prior conviction as proof that the defendant committed any of the crimes for which he is currently charged or for any other purpose."
During closing arguments, the prosecutor inadvertently argued that the jury could take into consideration Smith's four prior convictions. Before he finished the sentence, the court abruptly cut the prosecutor off and admonished him that his statement misstated the law. The court then explained to the jury that they could consider the lewd conduct and firearm possession convictions in evaluating Smith's credibility but could not consider his two drug possession convictions for that purpose.
At no time did defense counsel object to the court unbifurcating any of the convictions. Analysis
Smith contends his prior drug possession convictions were not relevant to the credibility of any witness and they did not have the tendency to prove or disprove any disputed fact. He further contends there was too much emphasis placed on these convictions because, "[o]nce Mr. Smith decided to testify, the priors were read by the court, admitted by Mr. Smith, argued in an opening statement of the prosecution, introduced by the prosecution, read twice during the jury instructions, and then argued during closing arguments." This allegedly had the effect of focusing the jury's attention on the prior convictions and Smith's status as a criminal rather than on the evidence of the charged offenses. Thus, according to Smith, the court abused its discretion when it unbifurcated the trial of his prior drug convictions and the manner in which the convictions were introduced was unduly prejudicial, grossly unfair, and denied him his right to due process.
" ' "An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method. ... The purpose of the general doctrine of [forfeiture] is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial had .... " ' [Citation.] [¶] ' "[A] constitutional right," or a right of any other sort, "may be forfeited in criminal ... cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it." ' " (People v. Saunders (1993) 5 Cal.4th 580, 589-590.)
Since Smith did not object to the court proceeding with a unitary trial that included his prior drug convictions, he forfeited his abuse of discretion and due process claims. Nevertheless, even if these claims were properly before us, we would reject them.
Alternatively, Smith contends he was denied the effective assistance of counsel if he forfeited this issue by defense counsel's failure to object. Smith is wrong. "To prevail on [an ineffective assistance of counsel] claim, [a defendant] must establish his counsel's representation fell below an objective standard of reasonableness and there is a reasonable probability that, but for counsel's deficient performance, the result of the trial would have been different." (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007.) " ' "If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed." ' " (Ibid.) Since we conclude, infra, that admission of the two drug possession convictions did not prejudice Smith, we reject his ineffective assistance of counsel claim as well.
A trial court's broad discretion to control the conduct of a criminal trial includes the authority to bifurcate the determination of the truth of a prior conviction allegation from the determination of guilt of the charged offense. (People v. Calderon (1994) 9 Cal.4th 69, 75 (Calderon).) The primary consideration for the trial court in ruling on a request to bifurcate a sentence enhancement is whether the admission of evidence relating to the enhancement during the trial on the charged offenses would pose a substantial risk of undue prejudice to the defendant. (Id. at pp. 77-78; People v. Burch (2007) 148 Cal.App.4th 862, 866 (Burch).)
"[B]ifurcation is not required in every instance. In some cases, a trial court properly may determine, prior to trial, that a unitary trial of the defendant's guilt or innocence of the charged offense and of the truth of a prior conviction allegation will not unduly prejudice the defendant." (Calderon, supra, 9 Cal.4th at p. 78, italics omitted.) The denial of bifurcation will not unduly prejudice the defendant when, "even if bifurcation were ordered, the jury still would learn of the existence of the prior conviction before returning a verdict of guilty." (Ibid.) For example, "when it is clear prior to trial that the defendant will testify and be impeached with evidence of the prior conviction [citation], denial of a request for a bifurcated trial generally would not expose the jury to any additional prejudicial evidence concerning the defendant." (Ibid., fn. omitted.) The determination of whether the risk of undue prejudice to the defendant requires bifurcation is within the sound discretion of the trial court, and subject to reversal only for an abuse of that discretion. (Id. at p. 79; Burch, supra, 148 Cal.App.4th at p. 867.)
Smith's prior convictions for being a felon in possession of a firearm and for lewd conduct with a child are crimes of moral turpitude and were, thus, admissible to impeach Smith. (People v. Robinson (2011) 199 Cal.App.4th 707, 713; People v. Massey (1987) 192 Cal.App.3d 819, 823.) Thus, the court did not err when it unbifurcated the trial of these convictions after Smith decided to testify.
"[Further, a section 667, subdivision (b)] sentence enhancement requires proof that the defendant ' "(1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction." ' [¶] Courts sometimes refer to the fourth requirement, which exempts from the enhancement defendants who have not reoffended for five years, as ' " 'washing out.' " ' [Citations.] ' "The phrase is apt because it carries the connotation of a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways." ' [Citations.] 'According to the "washout" rule, if a defendant is free from both prison custody and the commission of a new felony for any five-year period following discharge from custody or release on parole, the enhancement does not apply.' [Citations.] 'Both prongs of the rule, lack of prison time and no commission of a crime leading to a felony conviction for a five-year period, are needed for the "washout" rule to apply.' " (People v. Abdallah (2016) 246 Cal.App.4th 736, 742-743, fn. omitted, first italics added.)
The evidence that in 2005 Smith was convicted of drug possession was relevant to establish that the 2000 possession of a firearm conviction had not washed out for purposes of section 667.5, subdivision (b). Thus, the court also did not err when it unbifurcated the trial of this prior conviction.
Further, since the court properly unbifurcated the trial of three of the four prior convictions, the court reasonably could have found that, as explained below, the de minimis potential for prejudice did not warrant conducting a separate trial on Smith's 2000 drug possession conviction. Thus, we conclude that the court did not abuse its discretion when it unbifurcated the trial on Smith's two prior drug possession convictions.
Moreover, even if the court erred in unbifurcating the trial of Smith's 2000 and 2005 drug possession convictions, the error was harmless. "The potential for prejudice [of admitting a prior conviction] will vary, ... depending upon the circumstances of each case. Factors that affect the potential for prejudice include, but are not limited to, the degree to which the prior offense is similar to the charged offense [citations], how recently the prior conviction occurred, and the relative seriousness or inflammatory nature of the prior conviction as compared with the charged offense." (Calderon, supra, 9 Cal.4th at p. 79.)
Smith's 2000 drug possession conviction was over 16 years old, dissimilar and substantially less serious and inflammatory than the charged offenses, and Smith was impeached by two far more serious offenses. Further, "[j]urors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.) The trial court instructed the jurors twice that they were to consider the evidence relating to Smith's two drug convictions only in determining the truth of the prior prison term enhancements and not in evaluating his credibility.
Further, the evidence of Smith's guilt was overwhelming because Smith was found in possession of the Tahoe within 48 hours after it was stolen, and the jury could reasonably have found that his explanation of how he obtained possession of the Tahoe strained credulity. (People v. McFarland (1962) 58 Cal.2d 748, 754 [knowing possession of recently stolen property requires only slight corroboration such as unsatisfactory explanation to permit a finding of guilt].) Thus, even though the convictions were mentioned to the jury several times, we conclude that any error in the court unbifrucating the trial on Smith's two drug possession convictions and conducting a unitary trial was harmless and did not deny Smith his right to due process.
The trial court instructed the jury in the language of CALCRIM No. 376, which embodies this principle, as follows: "If you conclude that the defendant knew he possessed property and you conclude that the property had in fact been recently stolen, you may not convict the defendant of driving a vehicle without consent or receiving a stolen vehicle based on those facts alone. However, if you also find that supporting evidence tends to prove his guilt, then you may conclude that the evidence is sufficient to prove he committed driving a vehicle without consent or receiving a stolen vehicle. [¶] The supporting evidence need only be slight and need not be enough by itself to prove guilt. You may consider how, where, and when the defendant possessed the property, along with any other relevant circumstances tending to prove his guilt of driving a vehicle without consent or receiving a stolen vehicle."
The Prior Prison Term Enhancement
Smith contends that the court erred when it imposed two prior prison term enhancements based on his 2000 convictions for firearm possession and drug possession because he served a single continuous term of incarceration for these convictions. Respondent concedes.
The abstracts of judgment introduced by the prosecutor to prove the prior prison term enhancements show that Smith was convicted of possession of methamphetamine on May 25, 2000, and of being a felon in possession of firearm on June 29, 2000. They also show that on June 29, 2000, the court sentenced Smith to a three-year term on his possession of methamphetamine conviction and a concurrent two-year term on his felon in possession of a firearm conviction. Thus, the abstracts of judgment establish that Smith served a single prison term for both convictions.
"Under section 667.5, subdivision (b), additional enhancements for prior prison sentences may only be served for '... each prior separate prison term served for any felony;' ... Section 667.5, subdivision (g) defines a prior prison term as a 'continuous completed period of prison incarceration imposed for the particular offense [alone or] in combination with concurrent or consecutive sentences for other crimes, ...[.]' [¶] ... [¶] [T]he obvious intent of section 667.5 is to count each period of confinement in prison as one that can be used as an enhancement, not to enhance a defendant's sentence more than once for a single prison confinement where there were multiple counts. Under the plain meaning of the words used in subdivision (g), it is clear that [a] defendant's sentence could not be enhanced twice under section 667.5 for the single term of confinement he served for [more than one conviction]." (People v. Medina (1988) 206 Cal.App.3d 986, 991.)
Since Smith served only one prison term for his two 2000 convictions, the court imposed an unauthorized sentence when it imposed two prior prison term enhancements based on these convictions and we will strike one of the enhancements.
DISPOSITION
The judgment is modified to strike the prior prison term enhancement that was based on Smith's June 29, 2000, conviction for being a felon in possession of a firearm and to reduce his aggregate prison term from nine years to eight years. The trial court is directed to prepare an amended abstract of judgment that incorporates these modifications and to forward a certified copy to the appropriate authorities. As modified, the judgment is affirmed.