Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. NA071569, Richard R. Romero, Judge.
Robert H. Pourvali, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.
KLEIN, P. J.
Defendant and appellant, Lovell Stanfield, appeals from the judgment entered following his conviction, by jury trial, for burglary with prior prison term and prior serious felony conviction findings (Pen. Code, §§ 459, 667.5, 667, subd. (b)-(i)). Sentenced to state prison for eight years, Stanfield claims there was trial and sentencing error.
All further statutory references are to the Penal Code unless otherwise specified.
The judgment is affirmed as modified.
BACKGROUND
Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206, we find the evidence established the following.
On September 8, 2006, Nicolas Chavez was doing construction work at a residence on Shepard Street in San Pedro. The Wigwam Club, a fraternal organization similar to the Elks Lodge, is located behind the house Chavez was working on. Chavez saw two men, one black and the other white, walking back and forth between an alleyway near the house where he was working and a vacant lot. Chavez saw the black man carrying a stereo component and, at another point, a trash can containing other items. Chavez identified defendant Stanfield as the man he had seen carrying the stereo component and the trash can.
On the afternoon of that day, Robert Merchant and his family were taking a walk along the cliffs near Point Fermin. These cliffs run parallel to Shepard Street. Merchant saw a black man walking toward them and away from the Wigwam Club. The man was “carrying a load of stereo equipment in his arms.” When the man noticed Merchant’s family, “he started acting suspiciously and he put . . . the equipment down on the ground in a set of bushes, and then he scurried quickly back towards where he came from.” Merchant called 911. Meanwhile, the man “came back and covered up the stereo equipment with the shirt off his back.” Merchant then saw this man in the company of another man, whom he described as “either a light-skinned Hispanic man or a white man.” The two men “walked past the [stereo] equipment and then sort of ran off.” Merchant identified Stanfield as the man he had seen carrying the stereo equipment.
That same afternoon, Los Angeles Police Officer Rogelio Reynoso was called out to the Wigwam Club to investigate a burglary. Reynoso spoke to Chavez and Merchant, and he examined the Wigwam Club. The rear door of the club was open and another door had been knocked completely off its hinges. At a campsite adjacent to the vacant lot, Reynoso discovered two ice chests full of food, beer and hard alcohol.
Reynoso detained a man at the campsite and showed him to Chavez, but Chavez said he was not one of the men he had seen. Chavez then spotted the white man he had seen and pointed him out to Reynoso. After arresting this man, Reynoso detained Stanfield and showed him to Chavez, who “positively identified [Stanfield] as the one that was carrying the stereo equipment.” Near the ice chests, Reynoso found some paperwork that had Stanfield’s name on it.
Joel Malik, secretary-treasurer of the Wigwam Club, arrived in response to a call about the burglary. He noticed the doors on the east side of the club building had been broken open and that one of the doors had come off its hinges and was leaning on its side. All the beer and hard alcohol kept at the club was missing, as was the club’s stereo equipment. Malik was shown some stereo equipment located down an alleyway behind the club, which he identified as belonging to the Wigwam Club. He also identified some ice chests containing hard alcohol, food and beer as having been taken from the club.
CONTENTIONS
1. The trial court erred by not granting a mistrial.
2. The trial court erred by imposing an upper term for the burglary conviction.
3. The trial court erred by refusing to dismiss a Three Strikes prior conviction.
4. The trial court erred by imposing a probation revocation restitution fine.
DISCUSSION
1. Trial court properly refused to grant a mistrial.
Stanfield contends the trial court erred by denying his motion for a mistrial after Officer Reynoso testified that, among the documents at the campsite containing Stanfield’s name, he found “sex registration forms.” This claim is meritless.
a. Proceedings below.
The prosecutor asked Officer Reynoso if, while he was inspecting the campsite, he had found “any paperwork or anything that would tell you who was staying right there.” Reynoso answered, “Say about three to four feet from the cooler, from the stolen items, there was paperwork indicating that – by the name of Stanfield. There was paperwork, sex registration forms, that type of stuff.”
Defense counsel asked for a sidebar, at which he argued, “Obviously, that’s just prejudiced the entire jury against my client,” and, “I don’t think any curative instruction can cure the damage done. For that jury to have heard my client is a registered sex offender, has to register as a sex offender, is so inflammatory and prejudicial, I don’t see any way he can get a fair trial.” The prosecutor argued the jury wasn’t going to convict Stanfield just because they found out he was a sex offender, and “that a curative instruction would most definitely . . . allow this jury to move past that.”
The trial court said: “I don’t think a mistrial is warranted, although it’s close. The current crime is not inflammatory, one that involves sex or children. It’s close, and you may be right, but I don’t think it warrants mistrial.” As to whether a curative instruction should be given, the trial court said, “It’s a hard call. Because I heard it, but I wasn’t sure I understood it as a sex registration form because it went by kind of quick. I don’t know if any of the jurors picked up on it or not. They might have. If they were paying close attention, they should have.”
With the parties’ agreement, the trial court admonished the jury as follows: “The prosecutor asked the witness a question about whether there was any paperwork at the campsite indicating who might have been living there. Then the witness made a response, and I took notes of the witness’s response. My notes aren’t evidence as it’s just my recollection. What will be the evidence is what you remember. If you need to have it read back to you at some point by the reporter, she will do that. [¶] The witness began his answer this way: ‘Say about three to four feet from the cooler, from the stolen items, there was paperwork indicating that – by the name of Stanfield.’ That portion of the answer remains in evidence. Everything after that is struck. You’re not to consider anything after the portion that I just read to you. If you took notes, obliterate them and don’t refer in deliberations to the rest of that answer.”
b. Discussion.
“A motion for mistrial is directed to the sound discretion of the trial court. We have explained that ‘[a] mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions.’ ” (People v. Jenkins (2000) 22 Cal.4th 900, 985-986.) A mistrial motion should be granted if the trial court determines a party’s chances of receiving a fair trial have been irreparably damaged. (People v. Welch (1999) 20 Cal.4th 701, 749.)
Stanfield argues, “It is difficult to imagine evidence that is any more inflammatory and prejudicial to a defendant than that he is a sex offender. The impact of this testimony here cannot be overstated given that the crime with which appellant was charged in this case – commercial burglary – was neither a serious nor a violent crime. Clearly, appellant was improperly cast in an unfavorable light once the jury heard a statement suggesting that he was a sex offender.” But as the trial court pointed out, the seriously prejudicial situation would have been if this testimony had occurred in a sexual assault case. We agree with the trial court that, because there was nothing inflammatory about the crime Stanfield was on trial for, there was not much risk the testimony would cause prejudice.
Stanfield argues that even a little bit of prejudice would have been fatal because “the prosecution’s case rested solely upon eyewitness identification [evidence] which was suspect.” He asserts it was suspect because: neither eyewitness was acquainted with him; these were cross-racial identifications; Chavez’s testimony was inconsistent with his preliminary hearing testimony; and, Merchant had not had a good look at the man carrying the stereo equipment. These assertions are not supported by the record.
Although neither witness had ever seen Stanfield before, Merchant saw him at least two different times, while Chavez had seen him throughout the day. Chavez testified, “They [i.e., the two men] were coming back and forth all day long from the house to the empty lot, back and forth, all day long.” “Q Now, sir, can you estimate how many times you saw the white and the black man walking back and forth that day? [¶] A It was many times, all day.”
The record does not support Stanfield’s assumption these were cross-racial identifications. The record reveals nothing about Merchant’s race. Although Chavez is presumably Hispanic, that does not necessarily mean he is not also black. According to the United States Census Bureau, “[p]eople of Hispanic origin may be of any race.”
See United States Census Bureau, “Racial and Ethnic Classifications Used in Census 2000 and Beyond” (http://www.census.gov/population/www/socdemo/race/racefactcb.html): “People of Hispanic origin may be of any race and should answer the question on race by marking one or more race categories shown on the questionnaire, including White, Black or African American, American Indian or Alaska Native, Asian, Native Hawaiian or Other Pacific Islander, and Some Other Race. Hispanics are asked to indicate their origin in the question on Hispanic origin, not in the question on race, because in the federal statistical system ethnic origin is considered to be a separate concept from race.”
Stanfield argues Chavez’s “description of appellant . . . was entirely inconsistent with his testimony at the preliminary hearing. For instance, at the preliminary hearing he testified that appellant did not have a moustache yet at trial he claimed to have told the police that appellant did in fact have a moustache.” But Chavez’s testimony was far less emphatic than Stanfield suggests; what Chavez said was: “I think I told [the officer] he had a mustache.” And Reynoso, who was more concerned with establishing a perimeter in the area of the crime scene than with documenting the suspect’s facial characteristics, testified he did not recall any mention of facial hair one way or the other.
Reynoso testified: “Q [Chavez] didn’t tell you anything about facial hair on either man, did he? [¶] A Umm, I believe at that point we weren’t specific on the hair and facial hair because he was pretty, without a doubt, if he saw him again – he said he [had] seen him throughout the day so if he saw him again, he would recognize him. So we were keying in on trying to surround the area with officers to try to get ahold of these suspects.” “We had a description of his height, weight, tall male black – very tall male black and the description of the clothing that he was wearing.”
Regarding Merchant’s identification, Stanfield asserts “his ability to identify appellant was impaired by the fact that there was a significant glare from the sun and he was looking through a fence when he allegedly saw appellant walking from the Wigwam Club.” However, Merchant did not testify the fence had obscured his view, and he did testify there was no interfering glare:
“Q [A]t the time we’re talking about, the sun is rather low, casting a pretty bright reflection off of the water; isn’t that true?
“A No.
“Q Do you recall the sun that particular day?
“A It was September, 2:30. The sun would be fairly high in the sky.” Moreover, Merchant indicated he would have been wearing sunglasses.
Thus, contrary to Stanfield’s argument, the eyewitness identification evidence against him was not suspect. If anything, it was very strong. Reynoso’s reference to sex registration forms had been brief, isolated and fleeting, as well as non-responsive to the question asked. (See People v. Price (1991) 1 Cal.4th 324, 428 [trial court properly denied mistrial motion based on prosecution witness’s testimonial reference to having taken lie detector test, in part because “mention of polygraphs in Smith’s testimony was brief and nonresponsive”].)
The trial court did not abuse its discretion by denying Stanfield’s motion for a mistrial.
2. Trial court did not err by imposing an upper term.
When the trial court imposed an upper term on Stanfield’s burglary conviction, it said: “The prior convictions of Mr. Stanfield are numerous. His criminal conduct is continuous. So even though the current offense is not a violent felony or dangerous felony . . ., it’s clear Mr. Stanfield is a habitual criminal and the high term is appropriate.” Stanfield contends the trial court erred because it relied on an aggravating factor not found by the jury, and because it otherwise abused its discretion. These claims are meritless.
a. Trial court did not commit Cunningham error by imposing upper term.
Stanfield contends imposition of the upper term violated Cunningham v. California (2007) 127 S.Ct. 856 [166 L.Ed.2d 856]. This claim is meritless.
In Apprendi v. New Jersey (2000) 530 U.S. 466 147 L.Ed.2d 435, the Supreme Court held: “Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) In Blakely v. Washington (2004) 542 U.S. 296, 301159 L.Ed.2d 403, the court reiterated this rule and applied it to invalidate an enhanced sentence imposed under Washington’s determinate sentencing law, whose structure was somewhat akin to the triad structure of California’s Determinate Sentencing Law (DSL).
In People v. Black (2005) 35 Cal.4th 1238 (Black I), our Supreme Court held: “[T]he provisions of the California determinate sentence law simply authorize a sentencing court to engage in the type of factfinding that traditionally has been incident to the judge’s selection of an appropriate sentence within a statutorily prescribed sentencing range. Therefore, the upper term is the ‘statutory maximum’ and a trial court’s imposition of an upper term sentence does not violate a defendant’s right to a jury trial under the principles set forth in Apprendi [and] Blakely . . . .” (Id. at p. 1254.)
However, Cunningham v. California, supra, 127 S.Ct. 856, overruled Black I, holding that the middle term under the DSL is “the relevant statutory maximum” (id. at p. 871) for Sixth Amendment purposes, and therefore, other than the fact of a prior conviction, “any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.” (Id. at pp. 863-864.)
In People v. Black (2007) 41 Cal.4th 799 (Black II), our Supreme Court reconsidered Black I in light of Cunningham and held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Id. at p. 812.) “[I]mposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.)
Stanfield argues Black II was wrongly decided. However, as he acknowledges, that ruling is binding upon this court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
Here, the trial court said it was relying on the fact Stanfield’s prior convictions were numerous. This factor was sufficient to render Stanfield eligible for the upper term. (See Black II, supra, 41 Cal.4th at pp. 818, 819 [“the right to a jury trial does not apply to the fact of a prior conviction,” an exception which “include[s] not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions”]; People v. Velasquez (2007) 152 Cal.App.4th 1503, 1515 [trial court’s finding defendant had served prior prison term was directly related to defendant’s recidivism as that term has been construed by California appellate courts].)
Currently pending before the California Supreme Court, in People v. Towne, review granted July 14, 2004, S125677, is the issue of whether a trial judge may sentence a defendant to an upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendant’s prior convictions as an adult are numerous and of increasing seriousness; the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendant’s prior performance on probation or parole was unsatisfactory.
Stanfield’s criminal record as set forth in the probation report goes on for eight pages, and includes the following convictions: burglary (1978), attempted rape (1979), battery and peeking into an inhabited building (1981), use of a controlled substance (1982), possession of a firearm by a convicted felon (1983), grand theft (1985), petty theft and possession of a controlled substance (1987), burglary (1992), possession of narcotics (2000), vandalism and failure to register as a sex offender (2004), vandalism and failure to register as a sex offender (2005), possession of a controlled substance (2006).
There is no question but that Stanfield’s prior convictions are numerous. Under Cunningham this factor need not have been found true by the jury, and its presence permitted the trial court to impose an upper term sentence in this case. Thus, there was no constitutional error.
b. Trial court did not abuse its discretion by imposing upper term.
Stanfield contends that, even assuming there was no constitutional error in relying on his recidivism as an aggravating factor, the trial court abused its discretion by imposing the upper term. This claim is meritless.
“[T]he trial court enjoys broad discretion in making its sentencing choices, and these choices will be affirmed unless there is a clear showing that the trial court’s actions were arbitrary or irrational.” (People v. Golliver (1990) 219 Cal.App.3d 1612, 1616.) Pursuant to California Rules of Court, rule 4.421(b)(2), one of the “[f]actors relating to the defendant” upon which the trial court can rely to impose an upper term is: “The defendant’s prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness[.]” (Italics added.) As enumerated below, Stanfield has a substantial list of prior convictions in his record.
Stanfield argues the trial court’s imposition of the upper term was nevertheless arbitrary and irrational: “The instant offense was not serious in nature and . . . appears to have been committed in such a fashion as to minimize any risk of possible contact with persons in the building. Hence, there was no real possibility of anyone being injured as a result. Furthermore, while some stereo equipment was taken, it was apparent that alcohol was the primary target of the burglary which was indicative of appellant’s continued substance abuse problems. Moreover, the evidence indicated that appellant was homeless.”
But it appears from the record the trial court took these factors into consideration and determined that the nature and extent of Stanfield’s prior convictions outweighed any of these potentially mitigating factors.
At the sentencing hearing, the prosecutor argued for an upper term: “He’s got the strike, and he’s committed numerous felonies since then, most of them either theft or drug-related. It appears that he is just a perpetual thief who steals to support his drug habit.” Defense counsel responded: “[A]s far as the nature of this case, it is a second-degree burglary. And, again, not to minimize it, but it appears to have been done in such a fashion as to minimize any risk, any possible contact with any persons so that there was . . . no real possibility of any danger to persons. [¶] . . . It appears alcohol was the chief target, and I think that’s indicative of my client’s continued substance abuse problems . . . . The evidence did indicate he’s homeless.”
The trial court expressly took note of the non-violent nature of the burglary, and implicitly took note of the other argued mitigating factors. (See People v. Reyes (1987) 195 Cal.App.3d 957, 961 [record shows trial court considered possibility that alcoholism might partially excuse defendant’s behavior].) Stanfield’s assumption that substance abuse will always be viewed as a mitigating factor is incorrect. (See People v. Martinez (1999) 71 Cal.App.4th 1502, 1511 [“The record demonstrates defendant has had lifelong problems with alcohol and drugs. However, drug addiction is not necessarily regarded as a mitigating factor when a criminal defendant has a long-term problem and seems unwilling to pursue treatment.”]; In re Handa (1985) 166 Cal.App.3d 966, 973-974 [“Drug use or drug addiction at the time of an offense is an example of a disputable factor in mitigation. The sentencing court may find that drug use did not significantly affect the defendant’s capacity to exercise judgment or, in the case of an addiction of long standing, that the defendant was at fault for failing to take steps to break the addiction.”].) The same can be true of homelessness. (See People v. Gaston (1999) 74 Cal.App.4th 310, 322 [reversing dismissal of a Three Strikes prior because: “Our review of Gaston’s background, character and prospects leads to a conclusion directly contrary to that of the trial court. His prospects are particularly grim in light of the fact he is a 44-year-old homeless person who ‘has been unemployed for the past five years,’ has passed ‘most of the past eight years in state prison or on parole’ and ‘has spent most of his life on the street . . . . ’ ”].)
The trial court did not abuse its discretion by imposing an upper term sentence.
3. Trial court properly refused to dismiss the Three Strikes allegation.
Stanfield contends the trial court erred by refusing to dismiss, for Three Strikes purposes under the authority of People v. Superior Court (Romero)(1996) 13 Cal.4th 497, his 1979 attempted rape conviction. This claim is meritless.
The factors to be considered in ruling on a Romero motion were set forth in People v. Williams (1998) 17 Cal.4th 148, 161: “[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law . . . ‘in furtherance of justice’ pursuant to Penal Code section 1385(a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.”
“[A] trial court’s refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 375.) “In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ‘ “[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review.” ’ [Citations.] Second, a ‘ “decision will not be reversed merely because reasonable people might disagree. ‘An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.’ ” ’ [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it.” (Id. at p. 376-377.)
There is no doubt the trial court was aware of its discretion in this matter. In denying Stanfield’s Romero motion to dismiss his 1979 attempted rape conviction, the trial court said: “Often with a strike that old, . . . I would be dismissing it. The one difficulty here is that – a big difficulty – Mr. Stanfield has convictions dating from that period up until the present time. Even though his last felony conviction was in 2000, he does have convictions, for example, in 2005, for possession, failure to register as a sex offender in 2004 and vandalism and going backwards from there.”
Stanfield’s overall record and his recidivism constituted a sufficient basis for denying the Romero motion. (See People v. Strong (2001) 87 Cal.App.4th 328, 338 [“the overwhelming majority of California appellate courts have reversed the dismissal of, or affirmed the refusal to dismiss, a strike of those defendants with a long and continuous criminal career”]; see also People v. Carmony, supra, 33 Cal.4th at p. 376 [“ ‘[w]here the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled differently in the first instance’ ”].)
In sum, we cannot agree the trial court abused its discretion when it denied Stanfield’s Romero motion. (See People v. Carmony, supra, 33 Cal.4th at p. 377 [“trial court does not abuse its discretion [in denying Romero motion] unless its decision is so irrational or arbitrary that no reasonable person could agree with it”].)
4. Trial court erred by imposing probation revocation restitution fine.
Stanfield contends the trial court erred by imposing a $200 probation revocation restitution fine. This claim has merit.
Section 1202.44 provides: “In every case in which a person is convicted of a crime and a conditional sentence or a sentence that includes a period of probation is imposed, the court shall, at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional probation revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional probation revocation restitution fine shall become effective upon the revocation of probation or of a conditional sentence, and shall not be waived or reduced by the court, absent compelling and extraordinary reasons stated on record. Probation revocation restitution fines shall be deposited in the Restitution Fund in the State Treasury.”
Section 1202.45 provides: “In every case where a person is convicted of a crime and whose sentence includes a period of parole, the court shall at the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4, assess an additional parole revocation restitution fine in the same amount as that imposed pursuant to subdivision (b) of Section 1202.4. This additional parole revocation restitution fine shall not be subject to penalty assessments authorized by Section 1464 or Chapter 12 (commencing with Section 76000) of Title 8 of the Government Code, or the state surcharge authorized by Section 1465.7, and shall be suspended unless the person’s parole is revoked. Parole revocation restitution fine moneys shall be deposited in the Restitution Fund in the State Treasury.”
At sentencing here, the trial court denied probation and imposed, in addition to Stanfield’s prison term, the following fines: “$200 Penal Code restitution fine, $200 probation fine, $200 parole fine. The parole fine is stayed.” As Stanfield points out, imposition of a section 1202.44 probation revocation restitution fine was improper because his sentence did not include a conditional sentence or a period of probation. (See People v. Holmes (2007) 153 Cal.App.4th 539, 547 [because defendant was sentenced to prison on felony conviction, he was properly subject to parole revocation restitution fine, but not probation revocation restitution fine].)
The trial court should not have imposed the probation revocation restitution fine, and we will order it stricken.
DISPOSITION
The judgment is affirmed as modified. The $200 probation revocation restitution fine is vacated. If necessary, the clerk of the superior court shall prepare an amended abstract of judgment to reflect this modification, and forward the amended abstract of judgment to the Department of Corrections.
We concur: KITCHING, J. ALDRICH, J.