Opinion
C087223
05-19-2020
THE PEOPLE, Plaintiff and Respondent, v. BENJAMIN THOMAS TREMPER, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 16FE021740)
A jury found defendant Benjamin Tremper guilty of robbery and burglary with various special allegations, as well as found true allegations of five prior serious felonies. The trial court denied defendant's motion to dismiss four of his five prior strike convictions and sentenced him to 25 years to life plus six years in prison for the robbery.
On appeal, defendant claims prejudicial error in instructing the jury as well as abuse of discretion in declining to strike any of his prior strike convictions. He adds that his case should be remanded for the trial court to exercise its discretion pursuant to Senate Bill No. 1393. Agreeing with the last contention only, we affirm and conditionally remand for exercise of discretion.
BACKGROUND
On November 15, 2016, Charles G., aged 88, was living alone in an apartment in a retirement community. One morning, he noticed that several of the vertical blinds to a sliding glass door in his bedroom were out of place. The glass door opened to the outside. Worried, Charles G. checked to make sure his wallet was where he usually placed it, on the dresser in the entry area of his apartment. It was not.
As Charles G. walked to another part of his apartment to retrieve his glasses, defendant jumped onto his back, and both men went down to the floor, where they "wrestled around." When Charles G. stopped struggling, defendant left him on the floor and resumed rummaging through the apartment. Charles G. "inch[ed]" his way across the floor to the bathroom and managed to pull an emergency cord as defendant looked through his medicine cabinet. Minutes later, an employee of the retirement community knocked on the front door. Defendant fled through the opening in the sliding glass door.
Police officers arrived within minutes, and found defendant a few hundred feet away from the apartment, in a wooded area. There were two wallets on the ground near defendant. One of the wallets contained two of Charles G.'s credit cards, and defendant also had a set of keys to Charles G.'s vehicle.
Later that morning, Charles G. identified defendant as the man who was in his apartment. Defendant's fingerprint was recovered from the exterior portion of the sliding glass door to the apartment.
The jury heard a portion of an interview between defendant and law enforcement; we provide details of this interview later in the Discussion portion of this opinion. This interview is the subject of the claim of instructional error.
The jury found defendant guilty of first degree robbery (count one) and first degree residential burglary (count two). (Pen. Code, §§ 211, 459.) In connection with the robbery, the jury found true the allegation that the victim was age 65 years or older. (§ 667.9, subd. (a).) In a separate proceeding, the jury found true five prior felony convictions, all from the same case number and August 2005 conviction, but encompassing crimes on three different dates in 2004 and involving four different victims.
Further undesignated statutory references are to the Penal Code.
The probation report detailed defendant's criminal record, including a 1998 assault with a deadly weapon (§ 245, subd. (a)(1)), a 2002 burglary (§ 459), and the five prior strike convictions from the 2005 case found true by the jury here: one carjacking and four robberies (§§ 211, 215, subd. (a)). The report noted the short periods of time between defendant's various releases from custody and rearrests for parole violations and new crimes, including the mere six weeks between defendant's release from custody and commission of the instant crimes.
The trial court denied defendant's request to strike four of the five strike priors, explaining in part: "What is problematic is your prior history. And the fact that upon release from custody it generally is a relatively short period of time before you are re-incarcerate[d] and oftentimes on either serious or violent criminal offenses. [¶] . . . [¶] So I cannot say that the imposition of a sentence under the three strikes law is inconsistent with the mandate of the statute or the intent of the Legislature. I would find that to exercise this court's discretion in terms of striking four of the five prior strikes would, in fact, constitute an abuse of discretion."
The trial court and counsel agreed that the court would have to strike at least four of the strikes to have any impact on defendant's sentence, leaving defendant with only one strike prior. (See § 667, subd. (e)(2)(A).)
Regarding defendant's prior serious felonies, the trial court observed that defendant had benefited greatly from the filing decision in his prior (2005) case that resulted in a single trial on all five prior convictions, meaning only a single five-year enhancement could be imposed and "saving [defendant] an additional 20 years" in prison. (See § 667, subd. (a)(1) [authorizing "a five-year enhancement for each such prior conviction on charges brought and tried separately" (italics added)].)
The trial court imposed a sentence of 25 years to life for count one (robbery) and imposed a single five-year enhancement pursuant to section 667, subdivision (a)(1) and a one-year elderly victim enhancement pursuant to section 667.9, subdivision (a) for a total of six years determinate. It imposed and stayed the same sentence but without the elderly victim enhancement for count two (burglary).
DISCUSSION
I
Adoptive Admissions Instruction
Over defendant' objection, the trial court instructed the jury with CALCRIM No. 357 regarding adoptive admissions. Defendant argues the instruction was not supported by substantial evidence and penalized his exercise of his Miranda right to "selective silence" by permitting the jury to conclude defendant's failure to deny the premise of the officer's question (that defendant pushed the victim to the ground) was an adoptive admission.
The instruction as given reads: "If you conclude that someone made a statement outside of court that tended to connect the defendant with the commission of the crime and the defendant did not deny it, you must decide whether each of the following is true: [¶] 1. The statement was made to the defendant or made in his presence; [¶] 2. The defendant heard and understood the statement; [¶] 3. The defendant would, under all circumstances, naturally have denied the statement if he thought it was not true; [¶] AND [¶] 4. The defendant could have denied it but did not. [¶] If you decide that all of these requirements have been met, you may conclude that the defendant admitted the statement was true. [¶] If you decide that any of these requirements has not been met, you must not consider either statement or the defendant's response for any purpose." (CALCRIM No. 357.)
We need not reach the merits of these two bases for the claim of instructional error, because we easily conclude that any error was harmless under both of the applicable standards, as we next explain.
A. Background
During an interview conducted after he was read his rights pursuant to Miranda v. Arizona (1966) 384 U.S. 436, defendant admitted he entered the apartment and made physical contact with the victim.
At an in-limine hearing, the trial court granted all of defendant's requests for redactions of specific portions of the recorded interview and transcript. The jury heard the redacted version of that interview, and received the transcript.
Before the recording was played, the trial court told the jury "any statements made by the officer are not evidence, unless the response given by the person being interviewed adds content or affirmation or confirmation of the content of that question."
The relevant recording follows:
"[Officer]: If you could apologize to the old man, would you?
"[Defendant]: Mm-hmm.
"[Officer]: Do you think you owe that much? I mean, like I said, dude, I'm not here to beat you up about it. You're - you're a grown man, you know there's consequences for what you do but. . .
"[Defendant:] I didn't hit him or none of that though.
"[Officer]: No? What happened?
"[Defendant:] I didn't hit nobody.
"[Officer]: Well he said you guys struggled, is that not correct?
"[Defendant:] It's not.
"[Officer]: Is that not correct?
"[Defendant:] Yeah.
"[Officer]: You guys didn't - you guys didn't fight?
"[Defendant:] No.
"[Officer]: Did he get knocked to the ground? So you didn't, you weren't punching him or anything? All right.
"[Defendant:] No.
"[Officer]: That makes me feel a little better, you know what I mean? Honestly. So what happened, you just push him to the ground to get out or...
"[Defendant:] (Unintelligible).
"[Officer]: Huh? Again, dude, why did you pick his place?
"[Defendant:] (Unintelligible).
"[Officer]: You don't know? You know that it's an old folks' home, right?
"[Defendant:] No.
"[Officer]: Huh?
"[Defendant:] (Unintelligible).
"[Officer]: You didn't know that? So why did you pick that place?
"[Defendant:] (Unintelligible). It was open.
"[Officer]: It was just open? What were you doing in that area?
[¶] . . .[¶]
"[Officer]: Did you know if he was home? Did you think he wasn't home?
"[Defendant:] Yeah.
"[Officer]: How come? What made you think no one was home?
"[Defendant:] Couldn't see nobody, didn't hear nothin'.
"[Officer]: Were you surprised when you saw 'em?
"[Defendant:] Mm-hm. He scared the shit outta me too.
"[Officer]: Yeah.
"[Defendant:] I didn't think there was anybody in there (unintelligible).
"[Officer]: Is that why you knocked him to the ground because he scared you?
"[Defendant:] Yeah I was tryin' to get out when (unintelligible) he pulled the cord thing for the medical whatever it was.
"[Officer]: Mm-hm.
"[Defendant:] When they came to the door I just ran out the (unintelligible). I didn't - I didn't hit him, I didn't..."
The trial court instructed the jury on adoptive admissions using CALCRIM No. 357. (1 RT 306) In closing, the prosecutor argued that defendant admitted entering the victim's home because it was open, admitted contacting the victim, and admitted having what the prosecutor referred to as a "mild confrontation" with the victim during the course of the interrogation.
B. Analysis
1. Substantial Evidence
We need not decide whether substantial evidence supports the trial court's decision to give the instruction at issue (see People v. Mitchell (2019) 7 Cal.5th 561, 583; People v. Vega-Robles (2017) 9 Cal.App.5th 382, 436), because even assuming without deciding that the instruction was given in error, any error was harmless.
First, the evidence of defendant's guilt was overwhelming. As we have described, the victim testified that defendant jumped on him from behind, knocking him down, and left him helpless on the floor as he rummaged through the apartment for items to steal. Officers arriving within minutes of the robbery found defendant a few hundred feet away from the apartment with two wallets on the ground near him, one of which contained two of the victim's credit cards. Defendant also possessed the keys to the victim's car. The victim identified defendant as the robber that same day, and defendant's fingerprint was found on the outside of the sliding glass door where the break in occurred. Defendant's admissions, often non-responsive, contradictory or even self-serving, were merely the icing on what was already a finished cake.
Second, it is undisputed that the trial court appropriately instructed the jury on consideration of defendant's statements by giving CALCRIM No. 358 to the jury for its consideration. The prosecutor never mentioned the adoptive admissions instruction (CALCRIM No. 357) in argument, and indeed, that instruction required the prosecutor to prove more before the jury could consider defendant's statements than was otherwise required under the instruction for defendant's party admissions in CALCRIM No. 358.
Further, the trial court gave a limiting and clarifying instruction to the jury immediately before the interview testimony was received, and later told the jury that some of the instructions it was given may not apply to the case and that it should disregard any instructions that it felt were not applicable to the case before it. Under all of the foregoing circumstances, any error in giving the instruction at issue was harmless. (See People v. Chism (2014) 58 Cal.4th 1266, 1299 [adoptive admission instruction that had no application to facts was harmless under People v. Watson (1956) 46 Cal.2d 818, 836 because jurors were told to disregard instruction if not applicable].)
2. Failure to Respond
Defendant next contends it was likely the jury interpreted what the transcript shows and the parties agree in their briefing is a response, albeit an unintelligible response, to one of the officer's questions "as a failure to respond, and thus as an adoptive admission" supplying evidence of force for purposes of proving robbery. The exchange at issue reads:
"[Officer]: That makes me feel a little better, you know what I mean? Honestly. So what happened, you just push him to the ground to get out or...
"[Defendant:] (Unintelligible).
"[Officer]: Huh? Again, dude, why did you pick his place?"
When reviewing this claim, we ask "whether there is a 'reasonable likelihood' that the jury understood the charge as the defendant asserts." (People v. Kelly (1992) 1 Cal.4th 495, 525.) Here, we conclude that there is no such reasonable likelihood. Defendant's unintelligible response was just that: a response that was impossible to understand. It was not a failure to respond. It is not reasonable that any juror would conclude such a response to a statement is an adoptive admission. (Cf. People v. Carter (2003) 30 Cal.4th 1166, 1198 [the adoptive admission instruction "is largely a matter of common sense--silence in the face of an accusation is meaningful"(italics added).]
Thus, defendant's unintelligible response was nonetheless a response and it was not reasonably likely that the jury understood the adoptive admissions instruction as defendant asserts. In light of this conclusion, we need not address defendant's argument that permitting the jury to consider his unintelligible response as an adoptive admission penalized his exercise of his constitutional right to remain silent.
We note, however, that even assuming error of a constitutional magnitude, for the reasons explained above the evidence presented at trial overwhelmingly established that defendant took the victim's property by force. Whether he admitted intentionally pushing the victim to the ground is of no moment. The victim's testimony resoundingly established a forcible taking and it is clear beyond a reasonable doubt that any error did not contribute to a finding that force was used, particularly where the prosecutor did not argue adoptive admissions occurred. Thus, even assuming without deciding that the asserted constitutional error is present, it is harmless beyond a reasonable doubt. (See Chapman v. California (1967) 386 U.S. 18, 24.)
II
The Romero Motion
Defendant contends the trial court abused its discretion in denying his motion to dismiss the four prior strike allegations found true by the jury, pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. Defendant asserts the trial court misunderstood the scope of its discretion, as it "believed incorrectly that it would be an abuse of discretion to dismiss the four prior strikes."
We find no such misunderstanding, and no abuse of discretion. (See People v. Carmony (2004) 33 Cal.4th 367, 375 [abuse of discretion standard of review].) In reviewing a ruling not to dismiss a strike, "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." (People v. Williams (1998) 17 Cal.4th 148, 161.)
Here, the trial court understood it had discretion to dismiss the prior strikes, but was not persuaded that defendant fell outside the spirit of the three strikes scheme, given the series of relatively short periods of time between defendant's releases from custody and commission of new serious or violent crimes. That criminal history supports the trial court's decision. (See People v. Strong (2001) 87 Cal.App.4th 328, 346 ["Had defendant not had a 22-year criminal history, but only a recent violent assault, soon followed by another felony while still on parole, surely, defendant would come within both the letter and the spirit of the Three Strikes law"]; id. at p. 347 ["a career criminal who falls within the letter of the Three Strikes law--which was meant to apply to career criminals--should be deemed outside its spirit only in extraordinary circumstances"].)
Although the court commented that to strike four of defendant's five strikes would likely constitute an abuse of its discretion, clearly this comment was merely a prediction made as part of the court's explanation to defendant and his counsel as to why, in the court's view, the only proper exercise of its discretion was to decline to strike four of the five strikes, which was defendant's request and the only result that would have made any difference to his sentence. The entirety of the court's comments reflected a careful consideration of all of defendant's circumstances and the rational conclusion that these circumstances in their totality simply did not justify the striking of four strikes. The court's reasoned decision-making and thoughtful explanation of its decision to those present in the courtroom who needed to understand it did not constitute a misunderstanding or abuse of its discretion. We see no error.
III
The Section 667 , Subdivision (a) Enhancement
Defendant's final argument on appeal is we should remand to permit the trial court to exercise its discretion whether to strike the five-year serious felony enhancement.
At the time defendant was sentenced, the court had no discretion to strike such an enhancement. But Senate Bill No. 1393 (2017-2018 Reg. Sess.) effective January 1, 2019, amended sections 667, subdivision (a) (Stats. 2018, ch. 423, § 64), and 1385, subdivision (b) (Stats. 2018, ch. 1013, § 2), to allow a trial court to exercise its discretion to strike or dismiss a prior serious felony enhancement for sentencing purposes.
The People concede, and we agree, those amendments apply retroactively to defendant's case, which is not yet final. (See People v. Sexton (2019) 37 Cal.App.5th 457, 472-473.)
The Attorney General contends remand is unwarranted because the trial court clearly indicated it would not have dismissed the prior serious felony enhancement if it had discretion to do so. The Attorney General suggests the trial court intended to impose the maximum sentence possible, pointing to the trial court's observation defendant benefited from the filing decision to charge five prior strikes in the same case, and the trial court's decision to impose (rather than strike, see People v. Luckett (1996) 48 Cal.App.4th 1214, 1220-1221) the elderly victim enhancement.
But this observation and the imposition of an unrelated enhancement do not constitute a clear indication the trial court would have declined to exercise its discretion to strike a serious felony enhancement under a different statutory scheme. (Cf. People v. Williams (2004) 34 Cal.4th 397, 401-405 [discussing the different statutory and policy backdrops of section 667, subdivision (a) and the three strikes law].) And the trial court's imposition of the one-year elderly victim enhancement is not particularly probative; defendant did not ask the court to strike this enhancement at the sentencing hearing.
Thus, we are not convinced the record provides "a clear indication" the trial court would decline to exercise discretion afforded by Senate Bill No. 1393. (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110 ["Remand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so"].) We will therefore remand to allow the trial court an opportunity to consider its discretion.
It appears the abstract of judgment does not reflect the sentence (25 years to life plus 5 years) imposed and stayed on count two. We also note that both box 5 indicating a life sentence with the possibility of parole and box 6(b) indicating a 25-year-to-life sentence are checked, where only box 6(b) applies here. Further, certain fees and fines reflected in the abstract were not orally imposed at sentencing. On remand, the abstract should be corrected to properly reflect the sentence actually imposed.
DISPOSITION
The cause is remanded to allow the trial court to consider exercising its discretion under Senate Bill No. 1393, to prepare a new abstract of judgment reflecting any necessary changes, and to forward a certified copy thereof to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Murray, Acting P. J. /s/_________
Krause, J.