Opinion
F073544
01-05-2018
THE PEOPLE, Plaintiff and Respondent, v. DENNIS MICHAEL ALBA, Defendant and Appellant.
William A. Romaine for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. VCF292032)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Tulare County. Joseph A. Kalashian, Judge. William A. Romaine for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Eric L. Christoffersen, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Black,‡ J.
Retired Judge of the Tulare Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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INTRODUCTION
The Penal Code provides for the right to a jury trial on factual issues underlying a plea of once in jeopardy. (Pen. Code, §§ 1041, subd. 3, 1042.) In this case, defendant Dennis Michael Alba requested and was granted a mistrial during his first trial. Alba contends he was entitled to a jury trial on a claim of double jeopardy in his second trial. (See generally Oregon v. Kennedy (1982) 456 U.S. 667 (Kennedy); People v. Bell (2015) 241 Cal.App.4th 315 (Bell.) He also contends the trial court erred in instructing the jury. We reject his contentions and affirm the conviction but correct the unauthorized sentence to conform to the trial court's intent.
All further statutory references are to the Penal Code unless otherwise stated.
FACTUAL AND PROCEDURAL SUMMARY
Officer Greg Stoffel of the California Highway Patrol effected a traffic stop of Alba the afternoon of December 2, 2013. Deputy Derrick Hood of the Tulare County Sheriff's Department responded to assist Stoffel. The pickup truck Alba was driving was registered in his name.
At one point, the decision was made to arrest Alba and tow his vehicle. Once a decision is made to tow a vehicle, an inventory is conducted. In conducting the inventory of the contents of Alba's truck, Hood discovered a box of Nosler .30-caliber projectiles in a toolbox in the truck. Inside a backpack in the truck was a loaded, high-capacity magazine for a .40-caliber handgun; a 30-round magazine for a .30-caliber Smith & Wesson; and a clip of ammunition containing 27 rounds for a nine-millimeter Luger handgun.
On January 29, 2015, an information was filed charging Alba with one count of unlawful possession of ammunition by a felon, a violation of section 30305, subdivision (a)(1). It also was alleged that Alba had suffered four prison priors within the meaning of section 667.5, subdivision (b).
On July 22, 2015, at a hearing discussing trial dates, defense counsel indicated the People had made an offer to Alba of five years' suspended sentence and probation, but "Alba is not willing to accept the offer at this point."
On February 23, 2016, the date set for the first trial, outside the presence of the jury, Alba admitted he was a felon, had suffered prior convictions, and had prison priors.
Defense counsel also noted a small amount of marijuana was found in the cab of the truck; Alba was a medical marijuana patient, and he was never charged with any offense pertaining to the marijuana. The trial court responded, "[T]he officer shouldn't make any reference." The prosecutor replied, "I've instructed both officers not to touch on the marijuana."
Subsequently, defense counsel was cross-examining Stoffel about what was found during the inventory of the truck and asked, "Do you recall actually seeing ... stuff having been pointed out to you ... [¶] ... [¶] ..., anything. Other stuff. We'll leave it that general." Stoffel answered, "I mean, there was marijuana. I don't know what you want me—how far you wanted me to go here." Defense counsel moved for mistrial and the trial court excused the jury.
Outside the presence of the jury, defense counsel stated, "This officer was told not to mention the marijuana." Stoffel replied, "[Y]ou kept pushing me to the point where you wanted me to say—if you're going to want me to get every detail, what do you want me to say here?"
The People argued a mistrial was not necessary and that a corrective instruction should suffice. The People also offered to stipulate that Alba had a medical marijuana card and "there is no illegality with the marijuana."
Defense counsel replied that Stoffel's statement was a "direct violation of a court ruling on a[n Evidence Code section] 402, a direct violation of instructions" to the witness by the prosecutor. The trial court stated, "[I]f you want a mistrial, I'll have to declare it." Defense counsel replied, "I do." The People stated they "would like to lodge their objection and think it's unnecessary." The trial court then called the jurors into the courtroom and informed them a mistrial was being declared and they were excused.
After the jury was excused, defense counsel stated "a retrial or continuing trial would be a violation of due process since the officer intentionally, forcefully violated a direct court order and instructions from the prosecutor. I believe it rises to the level of prosecutorial misconduct. I'd ask the case be dismissed." The trial court declined to dismiss the case.
On February 24, 2016, a new jury was impaneled and a second trial commenced. There is no indication in the record that Alba entered a plea of twice in jeopardy, or double jeopardy.
The People presented testimony from Stoffel and Hood. At the conclusion of the People's case, the defense moved for dismissal pursuant to section 1118.1, insufficient evidence. The trial court denied the motion.
The defense presented testimony from Mark Brown. Brown testified he and Alba had gone fishing and Brown had brought the ammunition and a backpack with him, which he apparently left in Alba's truck after the fishing trip. After Alba's arrest, Brown did not want to tell the police the ammunition was his because he did not want to be "harassed and intimidated" by the local police.
The jury found Alba guilty as charged. On April 8, 2016, the trial court sentenced Alba to the low term of 16 months in state prison for the substantive offense. The trial court stayed imposition of any punishment for the four section 667.5, subdivision (a) enhancements.
Alba filed a timely notice of appeal.
DISCUSSION
Alba argues that whenever a plea of once in jeopardy raises a question of fact, it must be tried to a jury unless a jury is waived by the defendant. He argues his motion for a mistrial necessarily triggered a Kennedy-type claim, and it was error for the trial court to reject his double jeopardy claim without a jury trial. Alba also contends the trial court erred by instructing the jury with CALCRIM No. 224 instead of CALCRIM No. 225. Our own review of the record discloses sentencing error in that the section 667.5 enhancements were stayed.
I. Double Jeopardy Claim
The double jeopardy clauses of the state and federal Constitutions prohibit the government from prosecuting a defendant more than once for the same offense. (People v. Batts (2003) 30 Cal.4th 660, 695-696.) A criminal defendant has the right as part of the protection against double jeopardy to have his or her trial completed before the first jury empaneled to try the case. (Kennedy, supra, 456 U.S. at pp. 671-673.) Generally, a defendant who requests a mistrial is deemed to have waived any double jeopardy claim and, therefore, retrial is not barred. (Batts, supra, at p. 680.)
An unusual exception to this general rule is when a prosecutor's misconduct is intended to goad the defendant into requesting a mistrial; in other words, a defendant who is goaded into requesting a mistrial does not waive double jeopardy. (Kennedy, supra, 456 U.S. at p. 670; People v. Batts, supra, 30 Cal.4th at p. 665; Bell, supra, 241 Cal.App.4th at pp. 338-339.) Double jeopardy protections are not absolute and may be waived by a defendant. (People v. Eroshevich (2014) 60 Cal.4th 583, 590.)
When the defendant requests and is granted a mistrial based on prosecutorial error, it is ordinarily assumed there is no bar to retrial. (Bell, supra, 241 Cal.App.4th at pp. 338-339.) A defendant "may not mount a double jeopardy defense of any kind under a plea of not guilty." (Bell, at p. 339; see § 1020.) "In order to present a double jeopardy defense at trial, a defendant must first have entered a special plea of 'former acquittal' or 'once in jeopardy.'" (Bell, at p. 339.)
Here, Alba never asserted a plea of once in jeopardy. He pled not guilty in his first trial. When defense counsel moved for a mistrial, it was on the basis the witness violated an Evidence Code section 402 order and instructions from the prosecutor. When the trial court announced it would schedule a retrial, defense counsel argued for a dismissal based on a due process violation because the witness violated a court order and instructions from the prosecutor; defense counsel then stated this amounted to prosecutorial misconduct. At the start of proceedings on the retrial, there is no indication Alba moved for a dismissal or entered a plea based on once in jeopardy.
As the United States Supreme Court stated in Jeffers v. United States (1977) 432 U.S. 137, the defendant is "under an obligation to preserve his double jeopardy point properly, by alerting both court and prosecution to the existence of a complex, unsettled issue." (Id. at p. 150 & fn. 15.) Alba did not preserve his double jeopardy claim as he never asserted it in the trial court.
Alba's reliance on our decision in Bell to support his preservation of a double jeopardy claim is misplaced. In Bell, the defendant specifically asserted prosecutorial goading and entered a once in jeopardy plea. (Bell, supra, 241 Cal.App.4th at p. 337.) Alba did neither of these things in his case. Since Alba did not assert a once in jeopardy claim in the trial court, he was not entitled to a jury trial on the issue.
Regardless, even if Alba had preserved his claim of double jeopardy in the trial court, he was not entitled to a jury trial on the issue as he contends. The determination of the validity of a claim of once in jeopardy is a matter for the trial judge in the first instance; if there is no material issue of fact, the trial judge rules on the claim. If, however, there is a material issue of fact, then it is for a jury to resolve. (Bell, supra, 241 Cal.App.4th 341.)
If, as Alba asserts, his request for a mistrial and dismissal implicitly raised once in jeopardy, then the trial court's denial of his request for a dismissal implicitly determined there was no material issue of fact for a jury to determine. Here, there is no material issue of fact and the record discloses there was no prosecutorial goading.
Defense counsel, the prosecutor, and the trial court all stated Stoffel was instructed not to mention the marijuana. The comment from Stoffel about marijuana was elicited by defense counsel on cross-examination, after, as Stoffel stated, defense counsel "continued to push and push and push" regarding the items in the inventory until Stoffel did not know "what is he wanting me to say." Furthermore, the prosecutor opined a curative instruction to the jury would cure the problem caused by Stoffel's comment and offered to stipulate that Alba had a medical marijuana card and there was nothing illegal about Alba's possession of marijuana. The prosecutor opposed a mistrial. The undisputed facts in Alba's case give rise to only one reasonable inference—there was no action or failure to act on the part of the prosecutor that prompted the mistrial. (Bell, supra, 241 Cal.App.4th at p. 359.)
Unlike in Alba's case, the prosecutor in Bell had failed to inform a last minute witness of the trial court's in limine ruling, and it was the prosecutor who elicited testimony prohibited by an in limine ruling in the direct examination of the witness. (Bell, supra, 241 Cal.App.4th at p. 337.) In Bell, this court remanded the matter for the trial court to determine if there was a factual issue for a jury to decide or if the facts were undisputed and there was only one reasonable inference to be drawn from the facts. (Id. at p. 361.)
II. Claim of Instructional Error
Alba contends the trial court erred when it instructed the jury with CALCRIM No. 224, Circumstantial Evidence: Sufficiency of Evidence, instead of CALCRIM No. 225, Circumstantial Evidence: Intent or Mental State. A trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence. (People v. Blair (2005) 36 Cal.4th 686, 744, overruled on other grounds in People v. Black (2014) 58 Cal.4th 912, 919.) When a defendant's intent or mental state is the only element of the offense that rests substantially on circumstantial evidence, then CALCRIM No. 225 should be used; if other elements of the offense rest substantially on circumstantial evidence, then CALCRIM No. 224 should be given. (People v. Hughes (2002) 27 Cal.4th 287, 347.)
We first note that Alba specifically requested the jury be instructed with CALCRIM No. 224; he did not request CALCRIM No. 225. During the discussion between the trial court, defense counsel, and the prosecutor, the trial court raised CALCRIM No. 224, to which defense counsel responded, "I don't see that on either list." The trial court replied, "You requested that." Defense counsel did not withdraw the request for CALCRIM No. 224, did not object to this instruction being given to the jury, and did not request CALCRIM No. 225.
Generally, a defendant forfeits any challenge to a jury instruction that was correct in law and responsive to the evidence if he or she fails to object in the trial court. (People v. Franco (2009) 180 Cal.App.4th 713, 719.) CALCRIM No. 224 is a correct statement of the law regarding how a jury is to evaluate and consider circumstantial evidence. (See People v. Livingston (2012) 53 Cal.4th 1145, 1166; People v. Ibarra (2007) 156 Cal.App.4th 1174, 1186-1187.) Here, Alba raised no objection to CALCRIM No. 224.
Additionally, the "'doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err,'" the defendant cannot claim error on appeal. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 49.)
The exception to the forfeiture rule is if the instruction affects the defendant's substantial rights. (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) CALCRIM Nos. 224 and 225 provide essentially the same information on how the jury should consider circumstantial evidence; CALCRIM No. 224 is the more inclusive. (People v. Contreras (2010) 184 Cal.App.4th 587, 592.) CALCRIM No. 224 tells a jury how to "evaluate circumstantial evidence with regard to motive and intent, as well as the other elements of the crime." (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1172.)
In any event, if in fact the trial court erred by instructing with CALCRIM No. 224 instead of CALCRIM No. 225, any error was not prejudicial. We review instructional error that constitutes "'misdirection of the jury, including incorrect, ambiguous, conflicting, or wrongly omitted instructions that do not amount to federal constitutional error ... under the harmless error standard articulated' in Watson." (People v. Larsen (2012) 205 Cal.App.4th 810, 829; see People v. Palmer (2005) 133 Cal.App.4th 1141, 1157.) The harmless error standard articulated in Watson applies to Alba's claim of instructional error because the claimed error did not relieve the prosecution of the burden of proving beyond a reasonable doubt each essential element of the charged offense or improperly describe or omit an element of an offense; such instructional errors are subject to review pursuant to Chapman v. California (1967) 386 U.S. 18. (People v. Larsen, supra, at p. 829, citing, inter alia, People v. Mil (2012) 53 Cal.4th 400, 409.)
People v. Watson (1956) 46 Cal.2d 818, 836. --------
The trial court instructed with CALCRIM No. 223, which defines direct and circumstantial evidence, and also instructed with the more inclusive instruction, CALCRIM No. 224. CALCRIM No. 224 adequately instructed the jury on how to evaluate circumstantial evidence with regard to motive and intent. (People v. Samaniego, supra, 172 Cal.App.4th at p. 1172.)
The California Supreme Court has held that the giving of the more general instruction on evaluating circumstantial evidence, instead of the narrower instruction applying to motive and intent, is not prejudicial to a defendant. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1142 [addressing CALJIC Nos. 2.01 and 2.02, which are identical to CALCRIM Nos. 224 and 225]; People v. Bloyd (1987) 43 Cal.3d 333, 352 [same].) Cases addressing the CALJIC instructions are generally applicable to the CALCRIM instructions. (People v. Contreras, supra, 184 Cal.App.4th at p. 591 & fn. 4; People v. Samaniego, supra, 172 Cal.App.4th at p. 1171 & fn. 12.)
The instructional error, if any, was not prejudicial and, therefore, does not warrant reversal of Alba's conviction.
III. Sentencing Error
The trial court stayed imposition of punishment on all of the section 667.5 enhancements. Although not raised by either party in briefing, this is error. Section 667.5 enhancements cannot be stayed; they must be imposed or stricken. (See People v. Langston (2004) 33 Cal.4th 1237, 1241 ["Once the prior prison term is found true within the meaning of section 667.5(b), the trial court may not stay the one-year enhancement, which is mandatory unless stricken."].)
The failure to impose or strike the section 667.5 enhancements constitutes an unauthorized sentence. (People v. Vizcarra (2015) 236 Cal.App.4th 422, 432.) This court has the inherent authority to correct an unauthorized sentence by modifying the judgment. (People v. Relkin (2016) 6 Cal.App.5th 1188, 1197-1198.) In accordance with the trial court's clear intent to not impose a term of imprisonment for any of the section 667.5 enhancements, we conform the judgment to that intent and deem the enhancements stricken.
DISPOSITION
The conviction and true findings on the enhancements are affirmed. The sentence is modified to strike the section 667.5 enhancements and, in all other respects, is affirmed. The superior court is directed to prepare an amended abstract of judgment and disseminate the same to the appropriate authorities.
‡ Judge of the Fresno Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.