Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA091527, Steven D. Blades, Judge.
Stephen Borgo, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
CROSKEY, J.
Anthony Karl Watson appeals from the judgment entered following a jury trial which resulted in his conviction of perjury (Pen. Code, § 118, subd. (a)) and the trial court’s findings that he previously had been convicted of 10 robberies within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), and had served four prison terms within the meaning of section 667.5, subdivision (b). After striking nine out of ten of the Three Strikes convictions and two out of four of the section 667.5, subdivision (b) prison terms, the trial court sentenced Watson to 10 years in prison. We affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. The prosecution’s case.
Jim Phillips is a “peace officer with [the] California Department of Motor Vehicles” (DMV). His position primarily involves the investigation of fraud including, among other things, fraudulent applications for driver’s licenses, identity theft and “dealer misconduct.”
Although the process has since been updated, Phillips is familiar with the steps one was required to take in 2008 to obtain a driver’s license or identification card. At that time, an applicant would first fill out a form known as the DL44, or an application for a driver’s license or identification card. Although the applicant was required to answer all of the questions, the application was not to be signed. Under the certification section, the form read, “ ‘Stop. Do not sign until instructed to do so by a DMV employee.’ ”
When a DMV employee reviewed an application, the applicant was required to present proof of identification. “Proof” could have consisted of an original driver’s license, a birth certificate or “some sort of immigration document.” As an alternative, the applicant could be asked to give his or her Social Security number. Once all the pertinent information had been gathered, the application form was signed in the presence of a DMV employee “under penalty of perjury that everything [was] true.” Once one had signed the application, he or she was required to pay the appropriate fees, have their photograph taken, have their right thumb print taken and sign a “signature pad.” All of the applicant’s information was then electronically transmitted to Sacramento, where it was held in an electronic archive. The hard copies of the records were also sent to Sacramento, were “batched in with other transactions for that day, ... photocopied and put into archives as microfiche.” Should Phillips wish to obtain a document, an employee in Sacramento would retrieve it from the microfiche, print it out and “certify it as [an]... official document[]” before sending it to him.
Phillips was familiar with appellant, Watson. As a result of an investigation, he had determined that Watson had two driver’s licenses, each with a different name. Watson had one license bearing the name Anthony Karl Watson and a second license bearing the name Antonio Karl Jones. A DMV employee had pulled up certified documents, including Watson’s applications, photos and thumb prints, and sent them to Phillips. According to the certified documents, Watson had used the name “Anthony Karl Watson” on August 13, 1998. He had applied for a license with the name “Antonio Karl Jones” on May 12, 1999. Watson then, on January 23, 2008, applied for an identification card in the name of “Anthony Karl Watson.” On the 2008 DL44 application form, one of the questions read: “ ‘Have you applied for a driver’s license or identification card in California or another state/country using a different name or number within the past ten years, yes or no?’ ” In response, Watson had marked the box indicating “ ‘No.’ ” Another section on the same form read: “ ‘Certification, I have read, understand and agree with the contents of this form including the certifications on the back of this form. I certify or declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.’ ” Beneath the “certification” is an area for a signature and a date.
Phillips explained why it is essential for the Department of Motor Vehicles to retain accurate records. He stated: “Because if you acquire a lot of citations for traffic violations... it stays on your record for three years, or let’s say you get a suspension, the DMV is going to want to know what you’ve been doing in the past, they want to keep a record of your driver’s history, just to make sure you are a competent driver. [If] [y]ou get a lot of tickets, you’re going to get points against your license, and it might be suspended. If you change your name, DMV wants consistency with that record. So if you have a driver’s license or I.D. card in a different name, you have to disclose it on this record because DMV is going to combine that record. Essentially, you can’t have a record that’s all bad and try to get rid of it and move on to another driver’s license and get a better insurance rate or not be in jeopardy of losing a license. We want to know.” Phillips indicated that truthfulness is “essential to the application process” and that is why the information is given “under penalty of perjury.”
It was determined that Watson’s January 23, 2008 application was processed at the West Covina Department of Motor Vehicles. More importantly, the 2008 application was processed within 10 years of the May 12, 1999 application processed under the name of “Antonio Karl Jones.”
Sara Lee Valenzuela processed Watson’s 2008 application. Before working as a technician at the DMV, she had undergone a six-week training course. In addition, she had approximately eight years of experience working at the DMV. Valenzuela could tell that she had processed certain applications because they had her “I.D. Code, ” or the number 13, on them. When Valenzuela first reviewed Watson’s form, she noted that Question No. 5 was circled, indicating that Watson had failed to answer it. Question No. 5 asks “if [the applicant] ever had a license under a different name or number in the past ten years, or within a different state or country, or if [his or her license had] ever been suspended or revoked or if [he or she had] any kind of health or vision impairment.” After Watson answered the question, Valenzuela would have had him sign the form in her presence, then sent him to another section of the Department to have his thumbprint and photograph taken. Valenzuela did not have “any personal memory” of assisting Watson on January 23, 2008.
West Covina Police Officer Tedde Stephan is a supervisor with the Department’s forensics bureau. Stephan has been a police officer for over eight years and has supervised the forensics unit for over four years. He has had over 600 hours of training and experience in comparing fingerprint evidence. Stephan compared Watson’s right thumb print to the right thumb print on the three DMV applications for driver’s licenses or identification cards which Watson had filled out over the years. “All three of the images matched [Watson’s] right thumb.”
b. Defense evidence.
Anthony Karl Watson testified that, when he was born, he was given the name Antonio Karl Jones. However, when he was three years old, his mother married a man named “Watson.” He used the name Anthony Karl Watson from that time forward. Even his social security card was issued under the name of “Watson.”
In 1990, Watson was convicted of a number of robberies, for which he served time in prison. When he was released from prison, Watson was found guilty of driving under the influence (DUI) and his driver’s license was revoked. Accordingly, on May 12, 1999, Watson obtained a copy of his birth certificate, went to the Rancho Cucamonga DMV and applied for a driver’s license under the name Antonio Karl Jones. Watson stated: “[I] presented my birth certificate and I did get a license in my birth certificate name because I got the DUI. I defrauded the DMV, yes.” Watson was returned to prison in the year 2000. He was committed under the name “Anthony Watson.”
On January 23, 2008, just 11 days after having been released from prison, Watson went to the West Covina branch of the DMV and applied for an identification card under the name of “Watson.” Watson needed the card to “get work.”
When Watson applied for the identification card, he read and answered all of the questions on the front of the form. However, he stated that he had “been going to the DMV since [he was] 16 [years old and he had] never read the back of [the] application.” Watson did not read the question regarding whether he had applied for a driver’s license or identification card within 10 years “under a different name.” He simply checked the box indicating that he had not. Watson explained: “Because when I go to the DMV or to a doctor or anything, when I read those questions, they’re so trite and I don’t ponder the question. Just like four months ago I went to the doctor’s office and [the form] said, do you have headaches? diarrhea? blurred vision? I barely read it and I just marked them, no, no, no, no, no. I didn’t ponder the question, I didn’t read it thorough[ly].” Moreover, Watson, who had just spent eight years in prison, which to him had “seemed like an eternity, ” did not do a “calculation” to determine whether it had been 10 years since he had applied for a driver’s license under the name of “Jones.” Had he calculated the time, he would have realized that it had been nine years. However, when he signed the form, he “didn’t think about it.” When he signed the form, he “didn’t know [he] was perjuring [him]self at the time.”
After being told by a DMV employee at the Hollywood Office that he had “two names in the system, ” Watson contacted Detective Phillips in an attempt to “clear up [his] past record.” Watson never denied having DMV records under two different names and he attempted to explain how that had happened to the detective. Watson “freely told [the detective]” that he had applied for a license under the name of “Watson” on January 23, 2008 and that he wished to “clear up this issue [regarding] the two names” so that he could get an identification card or driver’s license.
c. Rebuttal.
When Detective Phillips met with Watson, he asked Watson “about the Jones I.D.” Watson told the detective that “his reason was [that] his name is Jones.” Watson admitted to Phillips that “he had the Watson driver’s license that [had been] suspended and that he... establish[ed] the Jones driver’s license... to circumvent the Watson suspension....”
2. Procedural history.
Following a preliminary hearing, on October 6, 2010 an information was filed alleging in count 1 that Watson had committed perjury in violation of section 118, subdivision (a). It was further alleged that Watson previously had been convicted of 10 counts of robbery (§ 211) within the meaning of the Three Strikes law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and that, within the meaning of section 667.5, subdivisions (a) and (b), he had been convicted of, and served prison terms for, two counts of robbery (§ 211), one count of willfully inflicting corporal injury on the mother of his child (§ 273.5) and bringing into prison an alcoholic beverage or any controlled substance (§ 4573.5).
After the matter had been set for a jury trial, Watson acknowledged that the People had offered to dispose of the case if he were willing to serve eight years in state prison. Watson, however, rejected the offer and indicated that he wished to go to trial. On December 3, 2010, twelve jurors and two alternates were sworn “to try the cause.”
During deliberations, the jury submitted a number of requests to the court. For example, on December 6, 2010 the jury asked to hear the “[r]ecorder’s information on testimony related to (1) [the] Hollywood DMV office[, ] (2) contact with [the] investigator[, ] (3) [the] social security card used for verification [and] (4) [the] DUI after [the] prison sentence....”
On December 7, 2010, the jury found Watson “guilty of the crime of Perjury-Application for Identification Card, in violation of... [s]ection 118[, subdivision] (a), a Felony as charged in Count 1 of the Information.” The trial court then set the matter for a court trial on the allegations of prior convictions and prison terms and requested that, in the interim, the parties prepare sentencing memoranda.
At proceedings held on December 17, 2010, the trial court indicated that it had reviewed the “[section] 969 packets” and found true the alleged prior convictions and prison terms. After hearing argument from the parties, the court granted Watson’s Romero motion and struck nine of the ten prior robbery convictions, or “strike” priors. The court explained: “I’m going to grant the motion and strike nine of the ten strikes for the following reasons: the first factor to consider is the constitutional rights of the defendant. I don’t think there has any––has been any––he was afforded his constitutional rights. [¶] The second factor is the interest of society and the fair prosecution of crimes properly alleged. You know that factor, the community[] has the right to expect that in most instances the court won’t interfere with the prosecutorial discretion to charge and prosecute crimes.... [¶] [A] [s]howing of detriment to the defendant is the third factor.... The detriment is particularly high if I don’t strike these strikes and sentence the defendant to a sentence of 25 plus years to life in prison for this... crime.... [¶] The fourth factor is the defendant’s background and character.... [H]e has a lengthy criminal record.... [¶]... [¶] The fifth factor is the nature of the current and prior offenses. The prior strikes are robberies, they are from 1990 and 1991.... The current offense is a perjury.... [T]his is not a crime of violence, no one was injured, and so I think that militates in the defendant’s favor. [¶]... [¶]... If I don’t strike these strikes, [Watson] would probably die in prison. I think [he] deserve[s] another opportunity... to be productive as a member of society. [¶]... [¶] Another factor is the close factual or legal relationship between one or more of the prior convictions.... [A]ll ten of the strikes were robberies, they were separate robberies occurring a year apart. Again, not related to the underlying crime, which is the perjury. [¶] I think that if I was to impose a Three Strike[s] sentence it would be unjust under the circumstances....” The trial court, accordingly, struck the “first nine strikes on the information.”
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
For his conviction of perjury, the trial court sentenced Watson to the upper term of four years in state prison, then doubled the term to eight years pursuant to the Three Strikes law. With regard to the four prior prison terms, the trial court struck, for purposes of sentencing, the first two, then imposed an additional one year for each of the remaining two “prior prison convictions.” In total, the trial court sentenced Watson to 10 years in state prison.
Watson was awarded presentence custody credit for 122 days actually served and 61 days of good time/work time, or a total of 183 days. He was ordered to pay a $200 restitution fine (§ 1202.4, subd. (b)), a stayed $200 parole revocation restitution fine (§ 1202.45), a $30 crime prevention fee (Gov. Code, § 70373), and a $30 court security fee (§ 1465.8, subd. (a)(1)).
Watson filed a timely notice of appeal on December 17, 2010.
This court appointed counsel to represent Watson on appeal on March 4, 2011.
CONTENTIONS
After examination of the record, counsel filed an opening brief which raised no issues and requested this court to conduct an independent review of the record. By notice filed March 30, 2011, the clerk of this court advised Watson to submit within 30 days any contentions, grounds of appeal or arguments he wished this court to consider. On May 2, 2011, Watson filed a “supplemental brief” in which he asserted (1) the trial court abused its discretion when it failed to strike all of his prior convictions and prison terms and (2) his trial counsel was ineffective.
With regard to Watson’s first contention, in Romero, supra, 13 Cal.4th at pages 530-531, the court noted that there must be a balance “between the defendant’s constitutional rights—which [the court] suggested included the guaranties against disproportionate punishment of the Eighth Amendment to the United States Constitution and article I, section 17 of the California Constitution [citation]—and society’s legitimate interests—which [the court] stated embraced the fair prosecution of properly charged crimes.” (People v. Williams (1998) 17 Cal.4th 148, 160 (Williams).) The Williams court recognized that Romero “implied that, in that balance, no weight whatsoever may be given to factors extrinsic to the scheme, such as the mere desire to ease court congestion or, a fortiori, bare antipathy to the consequences for any given defendant. [Citation.] [The Romero court] also implied that, in that same balance, preponderant weight must be accorded to factors intrinsic to the scheme, such as the nature and circumstances of the defendant’s present felonies and prior serious and/or violent felony convictions.... [Citation.]” (Williams, supra, at p. 161.)
The Williams court recognized that “in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, ‘in furtherance of justice’ pursuant to... 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... should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.” (Williams, supra, 17 Cal.4th at p. 161 .) We note that the superior court’s order is “subject to review for abuse of discretion” and that “[t]his standard is deferential.” (Id. at p. 162.)
Here, the trial court indicated that, if it did not strike most of the priors, “the detriment” to Watson would be “particularly high.” The trial court stated: “If I don’t strike these strikes, [Watson will] probably die in prison.” This, the court believed, would be unfair given the nature of his current offense of perjury. The court commented that it was “not a crime of violence [and] no one was injured.... [S]o I think that militates in [Watson’s] favor.” On the other hand, the trial court recognized that Watson had a lengthy criminal record, including convictions for 10 separate robberies committed in 1990 and 1991 and, although not alleged as a “strike, ” a conviction for one count of willfully inflicting corporal injury on the mother of his child. Thus, “in light of the nature and circumstances of his present felon[y] and prior serious and/or violent felony convictions, ... [it could not be said that Watson]... should be treated as though he had not previously been convicted of [at least] one... serious and/or violent felon[y].” (Williams, supra, 17 Cal.4th at p. 161.) On the record before us, the trial court properly exercised its discretion when it chose to strike all but one of Watson’s Three Strikes priors.
Watson’s second contention, that his trial counsel was ineffective, is also without merit. “In assessing claims of ineffective assistance of trial counsel, we consider whether counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.]” (People v. Carter (2003) 30 Cal.4th 1166, 1211; see Strickland v. Washington (1984) 466 U.S. 668, 694.) If the defendant makes an insufficient showing with regard to either component, the claim must fail. (People v. Holt (1997) 15 Cal.4th 619, 703.)
Watson asserts his trial counsel failed to meet with him before trial and “never discussed issues regarding the dismissal[] of unfavorable [jurors]....” However, a review of the record fails to indicate how and when counsel met with Watson. Moreover, it cannot be concluded that counsel failed to dismiss unfavorable jurors. The jury, chosen by both defense counsel and the prosecutor, did not immediately come to a verdict. Instead, it sent to the trial court multiple questions before determining that Watson was guilty of the alleged perjury.
Watson claims his trial counsel failed to adequately cross-examine Phillips, the investigating officer, with regard to conversations he and Phillips had prior to trial. The record indicates otherwise. During cross-examination, counsel asked Phillips: “The person that’s depicted in 2000––in People’s No. 5 in the 2008 document, the person going by the name of Watson, did you know him?” Phillips responded, “No.” Under these circumstances, there was nothing more counsel could ask.
Neither can it be said, as Watson contends, that his counsel failed to submit relevant documents or make adequate objections. Counsel had only a few documents he could submit that would not have been damaging to Watson and a review of the record, taken as a whole, indicates he made appropriate objections during the prosecution’s case. Counsel did not “slander” Watson during his opening statement and, during direct examination of Watson, counsel made the appropriate tactical decision of asking him whether he previously had been convicted of robbery. In so doing, counsel attempted to show the jury that Watson had nothing to hide.
In conclusion, Watson claims his counsel “failed to plan for trial or conduct an investigation on [his] behalf[;] [h]e didn’t adequately argue pretrial motions or make a coherent opening statement[;] he failed to ask admissible and relevant questions[;] [and he] didn’t move to exclude improper testimony and did not advance a defense theory until [it was too] late.” None of these contentions have merit. As the trial court stated when the jury began its deliberations, “I don’t know what’s going to happen, but Mr. Watson, I’ll just tell you this, if you’re found not guilty, you owe [defense counsel] a big thank you. And if you’re found guilty, you have no one to blame but yourself. So I think [defense counsel] did a good job with what he had, and we’ll see what happens.”
REVIEW ON APPEAL
We have examined the entire record and are satisfied appellate counsel has complied fully with counsel’s responsibilities. (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P.J, ALDRICH, J.