Opinion
B159674.
7-17-2003
THE PEOPLE, Plaintiff and Respondent, v. JESUS VALDIVIA, JR., Defendant and Appellant.
Gerald Clausen, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Deborah J. Chuang, Stephanie C. Brenan, Deputy Attorneys General, for Plaintiff and Respondent.
Appellant Jesus Valdivia was tried before a jury and convicted of second degree burglary and grand theft. (Pen. Code, §§ 459, 460, subd. (b), 487, subd. (a).) He contends the trial court erred when it denied probation and imposed concurrent 16-month prison terms on each count. We conclude the court did not abuse its discretion in denying probation, although we agree that one of the sentences should have been stayed under Penal Code section 654 rather than ordered to run concurrently. We also reject appellants claim that the entire judgment should be reversed because the court instructed the jury with CALJIC No. 17.41.1.
FACTS
At about 4:40 a.m. on January 3, 2002, police were dispatched to a Toys "R" Us store in Pomona after a silent alarm there was activated. The first officer to arrive noticed a van parked next to a cargo container in the back of the store. The lock on the container had been cut and three people, including appellant, were standing nearby. When appellant saw the officer, he said something to the others and they all got in the van and drove away.
The officer followed the van and stopped it almost immediately. Five young men were inside, three of whom were juveniles. Appellant, who was riding in the passenger seat, was the oldest in the group. Over $ 1,600 worth of Toys "R" Us merchandise was found in the van, and matching walkie-talkies were found inside the van and in appellants possession.
DISCUSSION
The Court Properly Denied Appellant Probation
Appellant argues that the case must be remanded for resentencing because the trial court relied on inappropriate factors when it denied probation and sentenced him to prison. We disagree.
Appellant first contends that the court improperly relied on prior drug arrests and traffic citations that did not result in convictions. He relies primarily upon People v. Calloway (1974) 37 Cal. App. 3d 905, 112 Cal. Rptr. 745, in which the court concluded that a probation report generally should not include information about police contacts not leading to arrest or conviction unless there is supporting factual information about the defendants conduct. (Id. at p. 908.)
The probation report in this case included references to prior cases in which no disposition had been reported, but these matters were clearly labeled as such and there was no possibility the trial court was misled. (See People v. Taylor (1979) 92 Cal. App. 3d 831, 833, 155 Cal. Rptr. 62.) The court did not treat those cases as evidence of a pattern of criminal conduct; to the contrary, it noted that the information about those earlier matters was incomplete, rejected the probation reports conclusion that the prior cases showed criminal conduct of increasing seriousness, and found that as a mitigating factor, appellant had an insignificant record of criminal conduct. (See People v. Ratcliffe (1981) 124 Cal. App. 3d 808, 823, 177 Cal. Rptr. 627.) The trial court did observe that bench warrants had issued in some of the earlier matters, but this was an appropriate factor to consider when determining whether appellant would be a suitable candidate for probation.
Appellant next complains that the trial court improperly relied on a pending traffic violation that was not described in the probation report. Under Penal Code sections 1203 and 1204, he argues, the court could not consider information about aggravating or mitigating circumstances that was not included in the probation report or presented in open court during the sentencing hearing.
A remand is required only if it is reasonably probable that the court would have granted probation if it had not considered the traffic violation. (See People v. Price (1991) 1 Cal.4th 324, 492, 821 P.2d 610.) There is no reasonable probability here. After the trial court indicated that it would impose a prison term, defense counsel noted that appellant had been going to mechanics school and was beginning to act like a law-abiding adult. The court responded that appellant was being arraigned in a few days in another case for driving with a suspended license, based on conduct occurring after his arrest in this case. In context, it is apparent the court had already decided to deny probation based on other factors, and was simply responding to counsels claim that his client had matured since committing the crimes for which he was being sentenced.
Appellant also argues that the trial court erred when it concluded that by virtue of his age, appellant had exercised a position of authority over the other participants in the crimes and had induced minors to assist in or commit a crime. (Cal. Rules of Court, rule 4.421(a)(4) & (5).) He claims that the disparity in age between himself (age 20) and the three minors (ages 16-17) was not substantial evidence that he occupied a position of leadership over them. We disagree. It was reasonable for the court to infer that as the oldest person in the group who burglarized the locked container, he had influenced the younger participants. The walkie-talkie found on appellant after his arrest also suggested that he was a leader in the enterprise and further supported the courts findings.
Finally, appellant contends the court erroneously treated the crimes commission at 4:40 a.m. as a circumstance supporting a denial of probation. This was not error. The timing of the crime was significant because it tended to show that this was a preplanned offense of some sophistication rather than one of mere opportunity. (See Cal. Rules of Court, rule 4.414(a)(8).)
Penal Code section 654The trial court imposed a concurrent sentence for appellants conviction of grand theft. Appellant argues that the sentence on this count should have been stayed under Penal Code section 654, because it was part of the same indivisible course of conduct as the burglary count. (See People v. Cruz (1995) 38 Cal.App.4th 427, 434 [where applicable, § 654 precludes imposition of concurrent sentence].) The Attorney General agrees, and we will order the abstract of judgment to be corrected accordingly. (See People v. Cline (1998) 60 Cal.App.4th 1327, 1336.)
CALJIC No. 17.41.1
The trial court gave CALJIC No. 17.41.1, the "anti-nullification" instruction. Notwithstanding our state Supreme Courts decision in People v. Engelman (2002) 28 Cal.4th 436, appellant argues that this instruction infringed upon his federal constitutional rights to trial by jury and due process, and upon the jurys right to free speech. We reject these arguments for the reasons set forth in Engelman.
DISPOSITION
The 16-month concurrent term for appellants conviction of grand theft under count 2 is stayed pursuant to Penal Code section 654. The superior court shall prepare an amended abstract of judgment and shall forward a copy to the Department of Corrections. As so modified, the judgment is affirmed.
We concur: YEGAN, Acting P.J., and PERREN, J. --------------- Notes: Although appellant did not specifically object to each of the factors now challenged on appeal, we consider the merits of his argument and thereby address his alternative claim of ineffective assistance of counsel.