Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. SWF014587, Carl E. Davis, (retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) and Mark A. Mandio, Judges.
Phillip I. Bronson, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Peter Quon, Jr., and Angela Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MILLER, J.
A jury convicted defendant Miguel Rey Urias of petty theft with a prior (count 1—Pen. Code, § 666) and second degree burglary (count 2—§ 459). In a bifurcated proceeding thereafter, the jury also found true allegations that defendant had a prior strike conviction (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(1)) and a prior prison term (§ 667.5, subd. (b)). On appeal defendant makes three contentions: (1) that the court’s exclusion of defendant from the trial violated his right to be present at all critical stages of the proceedings; (2) that the court prejudicially erred in admitting evidence that defendant had shoplifted from the same store on a prior occasion; and (3) that the court’s true finding on the prior prison term enhancement must be set aside because neither defendant’s current nor prior offense were violent felonies. We hold that none of defendant’s contentions are meritorious and, therefore, we affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
The verdict form for the prior prison term allegation actually reads section 667.5, subdivision (a). This discrepancy forms the basis for defendant’s third contention on appeal which we shall address below.
FACTUAL AND PROCEDURAL HISTORY
The People charged defendant by information on January 18, 2006, with one count of petty theft (count 1—§ 666), one count of second degree burglary (count 2—§ 459), and alleged defendant had incurred a prior prison term and failed to remain free from custody for five years (§ 667.5, subd. (b)).
On April 10, 2006, defense counsel declared a doubt regarding defendant’s mental competency to stand for trial. The court suspended criminal proceedings and appointed two doctors to evaluate and report on defendant’s mental competency pursuant to section 1368. At the subsequent hearing on the doctors’ reports, defendant was removed from the courtroom due to inappropriate behavior. The court found defendant was not mentally competent to stand for trial and adjourned the criminal proceedings. On August 1, 2006, the court committed defendant to Patton State Hospital.
On November 6, 2006, the court held a hearing regarding defendant’s restoration of competency. The court resumed criminal proceedings. On December 12, 2006, defense counsel orally moved to refer the case to mental health. The court granted the motion. Defendant subsequently rejected any mental health treatment.
On January 2, 2007, defense counsel again declared a doubt as to defendant’s mental competency to stand trial. The court appointed two doctors to examine and report on defendant’s mental competency. Defense counsel filed a declaration thereafter noting that one of the appointed doctors reported that he was precluded from rendering an opinion regarding defendant’s mental competency due to defendant’s “‘premature and abrupt termination of the interview and his low level of cooperation during [their] time together.’” The court appointed another doctor to evaluate defendant. On April 17, 2007, after reading and considering the doctors’ reports, the court found defendant mentally incompetent to stand trial. The court again committed defendant to Patton State Hospital.
On September 6, 2007, the court found defendant mentally competent to stand trial. On October 11, 2007, defense counsel again declared a doubt regarding defendant’s mental competency. The court appointed doctors to evaluate and report on defendant’s mental competency. On December 11, 2007, the court found defendant mentally competent to stand trial. On February 6, 2008, the court heard and denied defendant’s Marsden motion. Also on February 6, 2008, the People amended the information to add a prior strike conviction allegation. (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(1).)
People v. Marsden (1970) 2 Cal.3d 118.
On February 19, 2008, after opening statements, the court had the bailiff remove defendant from the courtroom for being disruptive during the proceedings. The prosecutor later noted that defendant was disruptive by interrupting during the People’s opening statement and speaking directly to the jurors. After conferring with counsel thereafter, the court determined that “defendant has and will continue to be disruptive.” After inquiring of defendant, the court found that defendant refused to cooperate in the court proceedings. The testimony of the first witness began; however, prior to its completion, defense counsel declared a doubt regarding defendant’s mental competency to stand for further proceedings. Defense counsel moved for a mistrial. The court granted the motion for mistrial, ordered proceedings suspended, and appointed doctors to evaluate and report on defendant.
On May 23, 2008, the court found defendant mentally competent to stand trial and resumed criminal proceedings. On July 14, 2008, defendant personally addressed the court contending he must be ordered released. The court denied defendant’s request. The minute order for the hearing reflects that “Defendant [was] removed from [the] courtroom because of disruptive behavior.”
Nothing in the reporter’s transcript for that day indicates that defendant was removed from the courtroom on any basis; however, defendant himself, in the transcript of the Marsden hearing held the next day, indicated that he had been excluded from court.
On July 15, 2008, defense counsel, yet again, declared a doubt regarding defendant’s mental competency to stand trial. Defendant personally addressed the court, contradicting his counsel’s contention that he was mentally incompetent to stand trial. Moreover, defendant declared that defense counsel was performing inadequately by even raising the issue of his purported mental incompetency. The court cleared the courtroom and held a Marsden hearing. During that hearing, defendant noted, “[Y]ou guys threw me out yesterday. You guys continue to talk without my presence.” The court denied defendant’s Marsden motion. Thereafter, the bailiff had to intervene by ordering defendant to stop arguing with the court. In reviewing defendant’s case file, the court noted, “there’s some handwritten half inch in materials here of facts that you’re disruptive. I can understand in the context of a trial you might have a hard time not bursting out with the things that you want to tell me. That’s an observation.” Defendant continued to interrupt the court, compelling the bailiff to intervene yet again, ordering defendant to “Stop talking. You’re going to have your time.” The court apparently had defendant removed from the courtroom.
Neither the reporter’s transcript nor the minute order indicate that defendant was removed from the courtroom; however, in the court’s subsequent conversations with counsel, defendant interposed no more objections. Moreover, at the end of the discussion, the court stated, “Let’s bring [defendant] back in....”
Counsel noted that if defendant plead guilty, or the matter proceeded to a trial (projected to last at most a day) in which he was convicted, defendant would be sentenced to time served due to his accumulation of credits. Nevertheless, defense counsel continued to maintain defendant was mentally incompetent to stand trial because he could not assist with his defense. The prosecutor opined that during future proceedings, defendant “will be disruptive. He’ll be excluded from the courtroom.” The court denied defense counsel’s motion to have defendant’s mental competency examined again.
On August 4, 2008, defense counsel again declared a doubt as to defendant’s competency to stand trial. Counsel engaged in another discussion with the court regarding the fact that defendant had enough credits to be released immediately upon resolution of the matter. The court suspended proceedings and ordered the appointment of a doctor to evaluate defendant. During the remainder of the hearing, defendant continuously interrupted the discussion between counsel and the court.
On August 25, 2008, the court explained to defendant that if he pled guilty he had accumulated enough credits to be released immediately. Defendant maintained that because he did not commit the crime, he should not plead guilty. Defendant furthermore contended that because a mistrial had previously been declared, resumption of criminal proceedings was in violation of double jeopardy principles; hence, he contended he should be released immediately, regardless. Defense counsel asked the court if she could interpose an objection to her “client’s going on.” Defendant reiterated that no adequate defense attorney would declare a doubt about her client’s mental competency. The court noted that the previously ordered mental evaluation found that defendant was mentally competent to stand for trial. Accordingly, the court ordered criminal proceedings resumed. Thereafter, defendant began interrupting the proceedings again. Defendant was “removed from the courtroom due to disruption.”
The ostensible removal of defendant does not appear in the reporter’s transcript.
On September 10, 2008, the court took up preliminary evidentiary matters. Defendant again began continuously interrupting. The court told defendant, “Give me just a second to talk here,” “Let me have the floor,” “let me talk and [do] not interrupt me when I’m talking,” and “do not interrupt me while I’m talking.” The court ruled on the People’s request to admit evidence of a purported incident of prior shoplifting by defendant: “Well, it’s my feeling, after trying many, many, many of these cases, the critical issue always seems to be intent... as a major point of contention in such cases. So I think, as to that issue, I’m inclined to rule that it has probative value on that issue that outweighs the prejudicial effect. The only reason I hesitate is if you have the film and you have, as I understand it, some statements that the defendant made, is it necessary? [B]ut I’m inclined to think that in this kind of a case, intent is always a major issue.”
The defendant began interrupting the court again, resulting in the following colloquy:
“The Court: [Defendant], now listen up. I’ve been patient with you. Do you agree?
“The Defendant: Yes. Yes. But burglary, that’s
“The Deputy: [Defendant]
“The Court: I asked you not to talk until I call on you.
“The Defendant: You know, I have defended myself. I have the legal rights, you know.
“The Court: But this—we have rules here, and that has to be done in an orderly manner.
“The Defendant: I understand, your Honor. I understand what the rules are.
“The Court: You make it really hard on me, because I want to hear what everybody has to say. And I can’t hear it if you are talking all the time.
“The Defendant: Well, I’m not. I let them talk and I talk.
“The Court: [Defendant], keep still now. Let [defense counsel] finish what she’s saying. And if you need to, I’ll let you talk.”
The court then reiterated its ruling on the evidentiary issue, resulting in the following exchange:
“The Court: Well, let me rule on this. If the witness is going to testify that, on that prior occasion, she saw him take something and leave the store, I would admit the evidence on the issue of intent, the response to his plea of not guilty.
“The Defendant: How can you do that when I was not charged for the robbery at the time? And so you are back tracking saying that you are going to incriminate me on stuff that happened before the day I got picked
“The Court: It’s not incriminating you. It’s something that the jury can consider in deciding whether or not you intended to steal.
“The Defendant: Is the Court here to incriminate me? [¶]... [¶]
“The Court: Now, [defendant], you are pushing me too far.
“The Defendant: If you give me a minute also
“[Defense Counsel]: In a couple of minutes you will not be here.
“The Defendant: Like I said, this intent—if she saw me take something before, why wasn’t I arrested? Why wasn’t I arrested at the time?
“The Court: I don’t know.
“The Defendant: Well, then you cannot use that past history on it, your Honor.
“The Court: You can’t tell me what I can do and what I can’t.
“The Defendant: But the law states you cannot incriminate me. That’s something that I already did. They already passed by. Are you incriminating on past history?
“The Court: Let me tell you something, [Defendant].
“The Defendant: It’s past time.
“The Deputy: Hold on [defendant].
“The Defendant: I would have got arrested.
“The Court: Let me warn you that under the law, if you keep interrupting and causing a fuss in here, I can exclude you from the trial, and you will not be able to be here for the trial unless you agree and tell me that you’ll behave and not talk until you are called on.
“The Defendant: Well, your Honor, if you excuse me from a trial, it isn’t a trial. Because I—even the criminally insane
“The Court: I have not done that yet. I’m just warning you.
“The Defendant: Even the criminally insane have a right to stand in front of the jury and the judge. Even the criminally insane have that right. So if you exclude me from the trial, then it is a trial—it’s a—it would become a, you know, I’m being roto-rooted. I do not want to be railroaded because I’m not here to be
“The Court: You are the one causing that, not me. If you keep interrupting, you are—you are causing me to exclude you.
“The Defendant: That’s because I’m defending myself.
“The Court: The law gives me authority
“The Defendant: I have the legal, moral rights.
“The Court: Every time I open my mouth you interrupt me and start talking. And if you do that again, if you do it again I will exclude you.
“The Defendant: Well
“The Court: The law provides that I can exclude you if we cannot proceed in an orderly manner. Because of your interruptions
“The Defendant: Your Honor, your Honor—[¶]... [¶]
“The Court: And I’m raising my voice, because I cannot get the floor.
“The Defendant: Yes, your Honor. You have the floor. Now, am I sane to stand trial.
“The Court: I’m sorry?
“The Defendant: Am I capable to stand trial? Am I sane?
“The Court: As far as I know, but you keep interrupting.
“The Defendant: That’s not interrupting. That’s defending.
“The Court: You have a very competent lawyer defending you. I’d leave it in her hands if I was you.
“The Defendant: Your Honor, I tried to terminate her about two years ago, and four judges told me I cannot.
“The Court: Let me cut this short. I am not here to debate you.
“The Defendant: Well, your Honor, like I said
“The Court: I’m here to rule on issues of law and submit the facts to the jury in a legally admissible manner.
“The Defendant: No, sir. Like I said
“The Court: If you do not keep still—this is the third time I told you. I’m going to exclude
“The Defendant: You do what you have to do. If you want to exclude me, go ahead. I’m just here to defend myself. I have—I have those legal, moral rights. Even the criminally insane have the right to
“The Court: One more pop off and I will exclude you.
“The Defendant: That’s all right. You do what you have to.
“The Deputy: [Defendant].
“The Court: Let’s move on to the next issue in the trial. I have ruled that provided that that witness will testify that she personally saw him take something, I will admit it as I’ve already explained.
“The Defendant: Is that from that date that I was arrested or is that days before?
“The Court: Let me move on to the next issue. I think that takes care—yes. We get down to the issue of the statements made both to [witness] and to the officer. [¶]... [¶]
“The Defendant: I made no statements, your Honor. I pled the Fifth when I talked to the sheriff, so if there’s any statements written down there, they’re lies, because I pled the Fifth.
“The Court: You are going to have a chance to say that to the jury.
“The Defendant: And your Honor, they’re incriminating me. The sheriff incriminat[ed] me on writing false statements.
“The Court: Mr.
“The Defendant: I told them I pled the Fifth.
“The Court: [Defendant], I’ve warned you enough.
“The Defendant: I wouldn’t
“The Court: I’m going to exclude you from these proceedings right now.
“The Defendant: I’m just telling you what’s going on.
“The Court: You’ve interrupted me time and time again.
“The Defendant: I’m just telling you, how can they have statements from sheriffs when I plead the Fifth?
“The Court: The ruling is you will be excluded from these proceedings until such time as your lawyer tells me that she’s talked to you and you will agree to return to the trial and behave yourself.
“The Defendant: Well
“The Court: Now, if you are ready to return to trial and behave yourself and not interrupt and not talk until you are called on, I will let you return to the trial. So the issue is in your hands now.
“The Defendant: Yes, your Honor. I understand.
“The Deputy: Hold on.
“The Court: The deputy will remove you from the courtroom at this time.
“The Defendant: Those sheriffs? [¶]... [¶] They’re incriminating me. Lies. I pled the Fifth when he came to arrest me. They kept telling me I said things I didn’t say, so that’s a lie right there.”
The defendant was removed from the courtroom.
The court informed defense counsel that it would permit defendant’s return to the courtroom on the condition that he not interrupt. Defense counsel replied, “It’s been my experience—and I’ve had this case for quite some time—and I’ve been with [defendant] during several proceedings. He—he will not be able to restrain himself from speaking. But I will talk to him again, and I will ask him once again tomorrow morning. And if I do not feel that he’s able to do that, to not talk during the proceedings, then, you know, I’m going to agree to waive his presence for the purposes of this trial, this entire trial.”
The following day the court renewed its discussion regarding the defendant’s behavior: “Picking up where we left off yesterday—and the defendant was excluded because of his disruptive behavior—we have not started jury selection at this time. And there has been some miscommunication in with the custody officer, so he’s not present in court yet. And I, before we begin, there will be a delay to get him present here in the courtroom. And I would appreciate, [defense counsel], if you would discuss with him his willingness to be—not be disruptive. And if he gives that assurance, I would propose to have him remain and that we take up a few housekeeping matters to see how it goes. [¶]... [¶] And if he... is not disruptive, then we’ll call the jury in. And then if we do have a disruptive incident, I would propose to excuse the jury and... we’ll explain to him, again, he’ll be excused if he’s disruptive, go through the same procedure we did yesterday. Bearing in mind all the time that if he assures the Court, through you, [defense counsel], that he’s going to return and not be disruptive, please notify the court.”
The court recessed to permit defendant to be brought to court. Once defendant arrived the court informed him, “yesterday it became necessary for me to exclude you from the courtroom because you constantly interrupted and were disorderly, were out of order a lot. Now, I want you to be here for your trial. And I don’t want to exclude you, but at the same time, you have to understand that we have to proceed in an orderly manner, and the Court and your attorney and the lawyers conduct this trial and not interrupt. I’m sure you understand that.” Defendant replied that his past could not be used against him, that his prior convictions should be sealed, and that since the instant matter concerned shoplifting, he should be released with a ticket or citation. Defendant asked the judge whether he knew the law: “Just because you sit up there doesn’t mean you know the laws.”
The court engaged in yet another lengthy colloquy with defendant during which defendant asserted that if his counsel failed to ask any question he requested of her, “it’s not going to work out” and that he would end up “railroad[ed] to prison.” On a couple of occasions the court unsuccessfully attempted to interrupt defendant’s monologue: “Let me say something,” “Let me have the floor.” The court repeatedly informed defendant that it wanted him to be present, but required that he behave himself in order for him to be allowed to remain. Defendant stated that due to his frustration with the judicial system he believed “it’s the time to bear arms as far as I’m concerned.” The defendant asserted, “You ain’t going to have no court, as far as I’m concern[ed].” The court repeatedly urged the defendant to behave himself so that he could remain in court: “Why won’t you be present and be still?” “Being not present any time that you agree that you will not interrupt and [agreeing] you’ll be still and not—stop talking.” “If you promise me, if we proceed at this time, be still and not talk.” The last time the court asked if defendant could remain present without interrupting the proceedings, defendant replied, “I have to defend myself, so I will end up talking. I have to admit that. I have to admit that. I cannot lie to you. I will end up talking, because this is my life, and I’m not going to do all those because—because you want me to be quiet.” The court ordered defendant excluded from the courtroom “until such time [he] can give the Court assurance that [he] can be quiet and be still.”
Counsel and the court proceeded with jury voir dire in defendant’s absence. After the jury panel was sworn, the court called defendant back into the courtroom in the jury’s absence to ask if he would agree not to talk or disrupt the trial: “I want to give him every opportunity to attend the trial and behave.” The court asked defendant if he would “sit here and behave and not interrupt and not talk.” Defendant responded by asserting that the court was ignoring “the whole system of the law” and that the court was “being ignorant.” Defendant refused to answer the court’s questions, alleging all the while that the court “broke the law” by conducting voir dire in his absence. While the court instructed the bailiff to ask defendant every morning if he would “agree to be brought to court and behave and not interrupt and not talk,” defendant continued to interrupt.
The trial commenced that afternoon in defendant’s absence. Jennifer Heredia-Aleman, the loss prevention manager for Sears Department Store in Hemet, testified that on November 28, 2005, while viewing surveillance monitors, she watched defendant conceal hardware in his waistband. Defendant exited the store; however, by the time Aleman was able to exit the store defendant had already made it across the street and Aleman was unable to catch up with him.
On December 8, 2005, again while watching video surveillance monitors, Aleman saw defendant come in through the door to the hardware department and she immediately recognized him. Aleman contacted Robert Viveros, the assistant store manager by radio to let him know defendant was in the store. As Aleman continued to view defendant on the surveillance camera, Viveros watched him from an adjacent department. Viveros witnessed defendant place a socket set in his waistband. Defendant exited the store without paying for the merchandise. Both Aleman and Viveros stopped defendant outside and told him he needed to return to the store due to the merchandise he had taken. Defendant lifted his shirt and gave the socket set to Viveros at the latter’s request.
Defendant told Aleman that he took the merchandise to buy food. Aleman asked defendant if he had any other merchandise and defendant handed her several individual wrenches. The cost of the items taken totaled $112.44. A recording of the video surveillance was played to the jury showing defendant enter and exit the store. Aleman called the police. The arriving officer searched defendant. Defendant had a total of $24.90 on him and no credit cards. After he was read his Miranda rights, defendant told the officer that he had taken the tools.
The video did not show defendant take any of the items or place them in his waistband.
Miranda v. Arizona (1966) 384 U.S. 436.
Prior to the completion of the prosecution’s case, defense counsel indicated that due to defendant’s behavior, it would be her decision not to put him on the stand. Nevertheless, the court noted that it was defendant’s right to decide whether to testify. After completion of the People’s case, the court instructed defense counsel to determine whether defendant wished to testify prior to commencement of proceedings the next morning.
The next morning, after the People officially rested their case, defense counsel informed the court she was unable to determine whether defendant wished to testify because he refused to give her a “yes-or-no answer.” Defendant then entered into a lengthy monologue. Defendant indicated that he would have liked to be present during trial so that he too could have asked the witnesses questions. Defendant and the court engaged in a colloquy regarding whether defendant wished to testify. Defendant replied that if the court answered his questions then “maybe I’ll answer yours.” The court repeatedly asked defendant whether he wished to testify; defendant refused to answer the court’s question, but continued to speak on the alleged illegality of his exclusion from trial. The court observed “We’re just saying the same thing over and over again. Now, we’ll start saying it louder in a minute.”
By our count, the court asked defendant whether he wished to testify on his own behalf at least 20 times.
Defense counsel suggested that defendant’s failure to indicate that he wished to testify should be inferred as an election not to testify. While the court was attempting to inform defendant that his failure to answer the question would be interpreted as a desire not to testify, defendant repeatedly interrupted. Defendant accused the court of committing a crime. Defendant accused the court of lying and committing fraud. Defendant indicated his desire to have the court arrested, either by the bailiff or by himself.
After a short recess, the court observed, “In view of the defendant’s conduct, it’s hard to know exactly what he wants to do. His conduct indicates that he certainly doesn’t want to remain silent, but he has not affirmatively stated that he wishes to testify in this matter. And his counsel has indicated that she’s willing to submit the case on the record. [¶] I’m going to ask the defendant one last time if he wishes to exercise his constitutional right to testify before the jury, as I have been doing frequently. If he fails to answer that question, yes or no, I will assume from it that he does not intend to exercise his right to testify.” The court then asked defendant four more times whether he wished to testify. Defendant refused to answer. The court noted it had to determine whether defendant would behave were he to remain in the courtroom. The court attempted to ask defendant whether he wished to remain for the duration of the trial; defendant repeatedly interrupted. The court warned defendant three times that his failure to behave would result in his exclusion from trial again. Due to defendant’s continuing misconduct, the court excluded defendant from the courtroom “until such time as he tells the custodial people that he’s willing to return and keep silent.” The defense rested.
The court instructed the jury that it may not draw any inference from defendant’s absence nor allow it to influence its decision in any way. The jury rendered guilty verdicts on both substantive counts.
The court informed the jury that trial on the prior strike conviction and prior prison term enhancements remained to be held. The court specifically noted that the latter allegation required a showing that defendant had failed to remain free from custody for five years. During her closing argument, the prosecutor noted that “One of the allegations that you have to find true or not true is basically that the defendant has not remained free of prison custody for five whole years.” The jury was instructed that, respecting the prior prison term allegation, it must find that defendant “did not remain free from custody for a period of five years from the date of his last release.” The jury rendered true findings on both allegations; however, the verdict form for the prior prison allegation specified section 667.5, subdivision (a).
At sentencing, the court granted defendant’s Romero motion, striking the prior strike enhancement. The court gave an indicated sentence of the midterm of two years on count 2 and an additional year on the section 667.5, subdivision (b), enhancement for a total term of three years. It indicated it would stay imposition of sentence on count 1 pursuant to section 654. Defendant’s accumulation of credits would result in his immediate release on parole. At length, defendant contested the propriety of his conviction. The court warned defendant that he was going to get kicked out. After continued interruptions by defendant, the court noted, “[t]his is why you were not present in trial, because you were disruptive. Every time I’ve seen you, you’re disruptive. You won’t answer questions. Really, you ask questions, but you don’t want answers. You just want to speak.” The court imposed sentence as indicated.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISCUSSION
A. Exclusion of Defendant From Proceedings
Defendant contends that he was erroneously deprived of his constitutional right to be personally present during critical stages of his prosecution because his conduct was not egregious enough to warrant such exclusion. He further maintains that the error prejudiced him such that his convictions must be reversed. The People assert that defendant was properly excluded from the courtroom on all three occasions due to his disruptive behavior. We agree with the People.
“A criminal defendant, broadly stated, has a right to be personally present at trial under various provisions of law, including the confrontation clause of the Sixth Amendment to the United States Constitution, as applied to the states through the due process clause of the Fourteenth Amendment; the due process clause of the Fourteenth Amendment itself; section 15 of article I of the California Constitution; and sections 977 and 1043 of the Penal Code.” (People v. Waidla (2000) 22 Cal.4th 690, 741.)
“[A] defendant may waive his right to be present at his trial by being disruptive at the trial, and appellate courts must give considerable deference to the trial court’s judgment as to when disruption has occurred or may reasonably be anticipated.” (People v. Welch (1999) 20 Cal.4th 701, 773.)
In Illinois v. Allen (1970) 397 U.S. 337 (Allen), the United States Supreme Court held that “a defendant can lose his right to be present at trial if, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, he nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that his trial cannot be carried on with him in the courtroom.” (Id. at p. 343, fn. omitted.) Nevertheless, “[o]nce lost, the right to be present can, of course, be reclaimed as soon as the defendant is willing to conduct himself consistently with the decorum and respect inherent in the concept of courts and judicial proceedings.” (Ibid.) Likewise, echoing Allen, defendant’s statutory right to be present during various stages of a felony trial are subject to the qualifications of section 1043, subdivision (b)(1), which permit trial in a defendant’s absence in “‘[a]ny case in which the defendant, after he has been warned by the judge that he will be removed if he continues his disruptive behavior, nevertheless insists on conducting himself in a manner so disorderly, disruptive, and disrespectful of the court that the trial cannot be carried on with him in the courtroom.’” (People v. Welch, supra, 20 Cal.4th at p. 774.) “Due process does not require the presence of the defendant if his presence means that there will be no orderly process at all.” (Allen, supra, 397 U.S. at p. 350 (conc. opn. of Brennan, J.).)
Here, defendant’s behavior in court was sufficiently disruptive that the court acted appropriately in excluding him from the proceedings. The first exclusion defendant complains of occurred on September 10, 2008, when the court was making preliminary evidentiary rulings. Defendant repeatedly interrupted the court, forcing the court to warn defendant four times to allow it to speak unfettered. After ruling on the evidentiary issue, the court engaged in the above quoted, lengthy colloquy with defendant during which defendant repeatedly refused to observe courtroom decorum. The court, again, repeatedly told defendant not to interrupt. The court indicated that defendant’s interruptions were interfering with its ability to hear counsel’s arguments. The court warned defendant seven times that if he continued to interrupt the proceedings, it would exclude him from the courtroom. Despite the court’s indulgent and patient endeavors to answer defendant’s questions and explain its ruling, defendant repeatedly continued to interrupt the court. Defendant’s persistent interruptions disrupted the court proceedings such that the court could not proceed with pending matters until defendant was removed from the courtroom. Similarly, the sheer frequency and prolonged nature of defendant’s interruptions demonstrated a patent disrespect for the court regardless of whether he continued to refer to the court as “your Honor.” Finally, the court properly informed defendant that he would be allowed to return to the courtroom as soon he indicated he was willing to behave. After defendant’s removal from the courtroom, the court told defense counsel that it would permit defendant’s return on the condition that he not continue to interrupt. Thus, the court’s exclusion of defendant from the courtroom complied with the standards and procedures announced in Allen; as such, the court acted properly.
Indeed, we compliment the court on its patience with defendant, its diligence in explaining to defendant the consequences of his continued misbehavior, its repeated proffering of opportunities to defendant to reverse his course of conduct and return to the courtroom, and its establishment of a thorough and comprehensive record on the matter.
The second complained-of exclusion occurred the following day. Here again, defendant’s obstreperous behavior warranted his exclusion from the courtroom. The court initially indicated, outside of defendant’s presence, that it proposed to have defendant remain in the courtroom so long as he gave some assurance that he would not continue to interrupt the proceedings. The court recessed to permit defendant to be brought before it. Once he arrived, the court explained to defendant that he was previously excluded for being disruptive, that the court wanted defendant to be present during the proceedings, and that the court simply had to have some indication from defendant that he would not continue to be disruptive. Defendant responded by arguing with the court regarding its ruling on the evidentiary matter from the previous day. Defendant insulted the court by informing the court that it was ignorant. Defendant made what could legitimately be viewed as a not-so-veiled threat to raise up arms against the court. Defendant indicated that he would not permit further proceedings to be held insofar as he was able to prevent it. Despite this behavior, the court continued to implore defendant to conduct himself appropriately so that he could remain in the courtroom. Nevertheless, defendant candidly admitted that he would continue to interrupt the proceedings. The court again excluded defendant from the courtroom until such time as he could assure the court he would behave. Defendant’s behavior in the courtroom on this occasion was disruptive, disorderly, and disrespectful such that the court’s exclusion of him was appropriate.
The third and final exclusion complained of by defendant occurred after the People had rested its case. Defendant refused to inform his counsel whether he wished to testify. The court questioned defendant whether he wished to testify. Defendant repeatedly refused to answer the question, continually interrupted the court, and used the opportunity to engage in lengthy tirades against the manner in which the court proceedings had occurred. Defendant accused the court of lying and committing crimes. Defendant threatened the court with arrest. Nevertheless, the court continued to give defendant the opportunity to inform it whether he wished to invoke his right to testify and whether he would behave so that he could remain in the courtroom. Despite several additional warnings that defendant’s continued misbehavior would result in his exclusion from the courtroom, defendant continued to interrupt the court. The court excluded defendant from the courtroom until such time as he indicated an ability to abide by courtroom decorum. Again, defendant’s behavior was sufficiently disruptive that the court acted appropriately in excluding him from the courtroom.
Additionally, we note that none of the trial court’s decisions to exclude defendant from the proceedings existed in the vacuum of his behavior on each individual occasion. Defendant had previously been excluded from the courtroom during his first trial after apparently making outbursts directed at the jury during the prosecution’s opening statement. Both the prosecution and defense counsel conveyed to the court their opinions that defendant had been and would continue to be disruptive. One of the judges who had previously had defendant removed from the courtroom noted that defendant’s case file included substantial written notes indicating how disruptive defendant had been. Thus, it is rational to infer that the instant judge had some idea regarding defendant’s behavior on previous occasions. Indeed, although one judge rendered all the complained-of decisions to exclude defendant, another judge sentenced defendant: That judge also threatened defendant with exclusion noting that his disruptive behavior was precisely the conduct that resulted in having him excluded during trial. The fact that defendant had interrupted proceedings in front of a jury on a prior occasion certainly boded against, as defendant suggests here, testing defendant’s behavior in front of this particular jury; a situation that likely would have biased the jury against him and raised the prospect of the flip-side argument on appeal, i.e., that the court erred by not excluding him.
Defendant notes, without expositing, the importance of his mental history to resolution of the current matter. Allen acknowledged the relevance of a defendant’s mental competency to the question of the propriety of excluding such a defendant from the courtroom for obstreperous behavior; however, it determined that its own record was inadequate to resolve that specific question. (Allen, supra, 397 U.S. at pp. 351-352.) Nevertheless, we note that the last three psychological evaluations of defendant found him competent to stand trial, unruly or not.
Furthermore, defendant’s behavior cumulatively foreshadowed his inability to abide by courtroom decorum. Although defendant complains of only three courtroom exclusions by this particular judge, we note that this particular judge actually excluded defendant from the courtroom four times. Defendant ignores the fact that defendant was brought before the court after voir dire was completed, but before trial commenced, in order to give him yet another opportunity to act appropriately so that he could remain in the courtroom. This he failed to do. Likewise, in each instance, defendant’s disruptive behavior escalated: Defendant went from repeatedly interrupting the court, to insulting and threatening it. Finally, we cannot say on this cold record that the words used by defendant and the frequency of his interruptions were the only bases for the court’s exclusions. Indeed, over the course of the proceedings, the court warned defendant to be “still” six times and once removed defendant, in part, due to his failure to remain “still.” A rational inference of these facts, at the very least, is that defendant also refused to stay seated. Likewise, at least two mentions were made regarding the volume of the discussions. Thus, in all likelihood, defendant not only persistently interrupted the court, but did so in a raised and inappropriate voice and tone. The court acted appropriately in excluding defendant on each occasion based on its inability to maintain an orderly courtroom.
Defendant cites a number of cases for the proposition that defendant’s behavior here was simply not “egregious” enough to warrant his exclusion from the proceedings below. (Allen, supra, 397 U.S. at pp. 338-339, 343-344; Badger v. Cardwell (9th Cir. 1978) 587 F.2d 968, 970; People v. Booker (1977) 69 Cal.App.3d 654, 668; People v. Arias (1996) 13 Cal.4th 92, 143, 147.) However, although each of those cases arguably involved more egregious behavior by the defendants, as defendant himself acknowledges, Allen “announces no per se rule of excludable conduct.” (Badger, at p. 971.) Neither does it require that defendant’s behavior be deemed “egregious.” Here, the court repeatedly warned defendant that continuing on his path of misbehavior would result in his exclusion from the proceedings. As discussed above, defendant persisted in behavior that was “so disorderly, disruptive, and disrespectful of the court that his trial [could not] be carried on with him in the courtroom.” (Allen, at p. 343, fn. omitted.) The court offered defendant repeated opportunities to return to the courtroom so long as he would behave himself. By his continued interruptions, defendant refused those opportunities. The court’s orders of exclusion were appropriate.
B. Prior Act Evidence.
Defendant contends that the prejudicial effect of the court’s admission of evidence regarding the November 28, 2005, act of shoplifting substantially outweighed its probative value and, thus, should have been excluded. Presumably, defendant maintains that its erroneous admission should result in a reversal of his conviction.
Defendant does not actually argue what result he should obtain should he be successful on this issue.
On appeal, the trial court’s determination of this issue, being essentially a determination of relevance, is reviewed for abuse of discretion. (People v. Kipp (1998) 18 Cal.4th 349, 369.) We view the evidence in the light most favorable to the trial court’s ruling. (Id. at p. 370.)
“The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent.” (People v. Ewoldt (1994) 7 Cal.4th 380, 402 ; see also People v. Kipp, supra, 18 Cal.4th at p. 371.) “In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant ‘“probably harbor[ed] the same intent in each instance.” [Citations.]’ [Citation.]” (Ewoldt, at p. 402; see People v. Ramirez (2006) 39 Cal.4th 398, 463.)
Here, the November 28, 2008, shoplifting incident was substantially similar to the instant offense such that the court’s admission of the loss prevention manager’s testimony regarding that occurrence was within its discretion. In both instances, defendant entered the same store, went to the hardware department, took hardware, placed it in his waistband, and exited the store without paying for it. The fact that defendant was not caught during the prior incident was not determinative in a consideration of its probative value. Since defendant directly challenged the element of the burglary charge requiring that he have entered the store with the intent to steal, the prior incident was substantially relevant to prove that he did so. The virtually identical circumstances of the two incidents, the fact that the testimony regarding the prior incident was no more inflammatory than the testimony regarding the charged offense, the relative minimal nature of that testimony, and the temporal proximity of the two acts substantially reduced any prejudice to defendant. (People v. Ewoldt, supra, 7 Cal.4th at pp. 404-405.) Moreover, as the People note, the court properly admonished the jury it could only use such evidence to prove defendant’s intent in the current matter. Thus, the court acted within its discretion in admitting the testimony of the prior incident.
C. Prior Prison Term Enhancement
Defendant contends that because he was not charged with a section 667.5, subdivision (a) enhancement, the jury’s true finding must be set aside. The People maintain that defendant was properly charged and sentenced on a section 667.5, subdivision (b) enhancement; the verdict form bearing the jury’s true finding on the enhancement merely contains a clerical error reflecting subdivision (a) rather than (b). Thus, the trial court properly imposed an additional one-year sentence. We agree with the People.
Section 667.5, subdivision (b) specifically provides that a defendant may have his sentence enhanced by a consecutive term of one year in any case in which he is convicted of a felony, sentenced to prison, had a prior felony conviction, served a prior prison term, and failed to remain free from custody for five years. Section 667.5, subdivision (a) provides that a defendant may have his sentence enhanced by a consecutive term of three years where a defendant is convicted of a violent felony, sentenced to prison, was previously convicted of a violent felony, served a prior prison sentence, and failed to remain free from custody for 10 years.
The complaint, information, and amended information all alleged defendant had a previous conviction for which he served a state prison sentence and failed to remain free from custody for five years pursuant to section 667.5, subdivision (b). The People alleged defendant’s prior conviction was for burglary, without alleging whether another individual was present at the time of its commission; thus, the charging document failed to allege defendant’s prior conviction was for a “violent felony” as required under section 667.5, subdivision (a). (§ 667.5, subd. (c)(21).) After the jury convicted defendant of the substantive offenses, neither of which was a violent felony, the court announced that it must now proceed to trial on the prior conviction allegations, one of which required the people to prove that defendant had failed to remain free from prison custody for five years. In her closing argument, the prosecutor specifically informed the jury, “One of the allegations that you have to find true or not true is basically that the defendant has not remained free of prison custody for five whole years....” The court instructed the jury that in order for it to render a true finding on the allegation, it must find that defendant “did not remain free from custody for a period of five years from the date of his last release.” The court sentenced defendant to “an additional year in prison for the [section] 667.5[, subdivision] (b) prior....” The abstract of judgment reflects that defendant was sentenced to an additional year of imprisonment for a true finding on a section 667.5, subdivision (b) enhancement.
Unfortunately, the verdict form submitted and completed by the jury’s foreperson indicated a true finding on a section 667.5, subdivision (a) enhancement. The minute order for the finding does so as well. However, in context with the above discussed proceedings regarding the allegation, it is readily apparent that the inclusion of section 667.5, subdivision (a) and its corresponding language was a clerical mistake. We shall direct the superior court to correct the minute order of the finding. (See People v. Mitchell (2001) 26 Cal.4th 181, 185-188 [correction of abstract of judgment].)
DISPOSITION
We direct the trial court to modify its minute order dated September 12, 2008, to reflect that the jury found prior No. 1 true pursuant to section 667.5, subdivision (b), rather than subdivision (a). As so modified, the judgment is affirmed
We concur: RICHLI, Acting P. J., GAUT, J.