Opinion
G057270
08-04-2020
THE PEOPLE, Plaintiff and Respondent, v. RC DWAIN BURCH III, Defendant and Appellant.
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Plithey, Assistant Attorneys General, Michael R. Johnsen and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 15CF1159) OPINION Appeal from a judgment of the Superior Court of Orange County, Michael A. Leversen, Judge. Affirmed in part, reversed in part, and remanded with directions. Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Plithey, Assistant Attorneys General, Michael R. Johnsen and Kristen J. Inberg, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant RC Dwain Burch III stabbed his ex-wife multiple times in front of their four children. At trial, defendant was convicted of attempted murder, aggravated mayhem, domestic battery, and four counts of child endangerment. The court found true allegations defendant had suffered two prior strikes (Pen. Code §§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(2)(A)) and one prior serious felony conviction (§ 667 subd. (a)(1)) in Nevada. The court sentenced defendant to 24 years to life, plus a consecutive determinate term of 13 years in state prison.
All further statutory references are to the Penal Code unless otherwise noted.
Defendant argues the court violated his right to a fair and impartial jury by not reopening jury selection once a juror raised new information after both parties accepted the jury panel, but before the jury was sworn. We conclude the claim is forfeited because defense counsel did not request to reopen jury selection until after the jury was sworn, at which point the court had no authority to reopen jury selection. In any event, the claim lacks merit because prior to swearing the jury, the court questioned the juror to ensure he could still be impartial.
Defendant also argues, the Attorney General concedes, and we agree there was insufficient evidence for the court to find the Nevada priors to be valid prior strikes or a prior serious felony conviction. We therefore reverse the judgment as to the prior conviction findings and remand for a new determination on the prior convictions.
FACTS
The facts underlying defendant's conviction are not at issue in this appeal. In sum, defendant stabbed his ex-wife multiple times in the face and neck with a steak knife. This initial assault woke up their four children who then witnessed defendant continue to try to stab his ex-wife.
DISCUSSION
1. Jury Selection
Defendant argues the court violated his constitutional right to an impartial jury by (1) not reopening jury selection after Juror No. 102 said his aunt experienced domestic violence while he was growing up, and (2) insufficiently questioning Juror No. 102 about the matter. We do not agree.
A. Background
At the beginning of jury selection, the court read the charges to the jury and advised them the case involved domestic violence. While talking to the first panel of prospective jurors, the court asked if any juror had any "family, friends, or relatives that have been the victim of these types of crimes?"
On the second day of jury selection, Juror No. 102 was called to the jury box. He told the court where he lived, his job, he had never had a bad experience with law enforcement, and there was no reason he could not serve as a juror. The court asked: "So if you were to serve, you can keep an open mind, follow the law, and give both sides a fair trial?" Juror No. 102 responded "Yes, sir." Neither the prosecutor nor defense counsel asked Juror No. 102 any questions.
Both sides passed on peremptory challenges while Juror No. 102 was still seated in the jury box. After both sides accepted the panel, the court asked, "Anybody want to tell me anything before we swear you in as jurors?" After a question from another juror, the following exchange occurred:
"Juror No. 102: Just really quick, make a note, just growing up, I experienced violent -- domestic violence, but not in my family. My aunt.
That's --
The court: You told us this stuff is not going to affect your ability on each side; right?
Juror No. 102: (No audible response.)
The court: All right. [¶] So would you 12 stand up and raise your right hand to be sworn."
After the jury was sworn, defense counsel asked to approach and the court said no.
The court and the parties then began selecting alternate jurors. During a chambers conference concerning an alternate juror, defense counsel said he had asked to approach earlier because of Juror No. 102's statement about his aunt experiencing domestic violence. He said he was concerned Juror No. 102's past experience "might be something that is going to play a role in his mind-set." The court responded, "I asked him that, and he said no. So I don't know what you're proposing."
Defense counsel requested the court to "open" with Juror No. 102 when they continued to question alternate jurors, and to substitute an alternate juror for Juror No. 102 if the questioning created cause to remove him. The court responded "we can't do that once we've sworn a jury. That's why, once that jury was sworn and you asked to approach, there's nothing I can do about it." The court reiterated it had already addressed the issue with Juror No. 102 and "he said it didn't matter, wouldn't affect his ability to be fair and impartial" and denied the defense request.
B. Analysis
During jury selection, each side is entitled to take or pass peremptory challenges alternately and "[w]hen each side passes consecutively, the jury shall then be sworn, unless the court for good cause, shall otherwise order." (Code Civ. Proc., § 231, subd. (d).) Peremptory challenges may only be made before the jury is sworn. (Code Civ. Proc., § 226, subd. (a).) The phrase the "jury is sworn" refers to the trial jury and not the alternate jurors. (People v. Cottle (2006) 39 Cal.4th 246, 255.)
"Objections to the jury selection process must be made when the selection occurs." (People v. Johnson (1993) 6 Cal.4th 1, 23). A claim of inadequate voir dire is forfeited if counsel failed to suggest followup questions or otherwise complain about the adequacy of the trial court's voir dire. (People v. Rogers (2009) 46 Cal.4th 1136, 1149.) Further, counsel's request to question jurors about a topic not covered in the initial voir dire is forfeited if the request is not made before the jury is sworn. (People v. Gonzalez and Soliz (2011) 52 Cal.4th 254, 313-314 [request to voir dire jurors on racial bias forfeited because counsel made the request after the jury was sworn].) In this case, defense counsel never requested the court reopen jury selection before the jury was sworn. Further, he did not object to the jury being sworn or give any indication he was dissatisfied with the court's questioning of Juror No. 102. He therefore forfeited the claim on appeal.
Defendant urges the court not to find his claim forfeited, asserting the court did not give his counsel the opportunity to object before the jury was sworn. We disagree. While the events happened in short order, they were not instantaneous. Nothing stopped defense counsel from requesting further questioning of Juror No. 102, or objecting to the jury being sworn.
Defendant also asserts any objection made by his counsel before the jury was sworn would have been futile. This is inconsistent with the record. During the chambers conference after the jury was sworn, the court explained it could not grant the request to reopen jury selection because the jury had already been sworn, specifying: "That's why, once that jury was sworn and you asked to approach, there's nothing I can do about it." The court gave no indication it would have denied the request if it had been made before the jury was sworn.
In his final response to the forfeiture argument, defendant cites Hale v. Morgan (1978) 22 Cal.3d 388 (Hale) and Barker v. Wingo (1972) 407 U.S. 514 (Barker) to support the claim his constitutional right to an impartial jury may be raised for the first time on appeal. We are not persuaded. Neither of these cases discussed issues related to jury selection and are inapposite. In Hale, the defendant was challenging the constitutionality of a statute and the court determined there was "arguable merit" the issue was raised in the trial court. (Hale, at p. 394.) In Barker, the United States Supreme Court specifically "except[ed] the right to speedy trial from the rule of waiver" and in no way addressed any matter related to jury selection. (Barker, at p. 526.) More importantly, defendant's position is contrary to the numerous cases, some cited above, where our Supreme Court has found a defendant forfeited a claim of being deprived of an impartial jury because it was not raised in a timely manner in the trial court.
Furthermore, defendant's claims lack merit because the court adequately questioned Juror No. 102. "[T]he trial court has wide latitude to decide the questions to be asked on voir dire [citation], and to select the format in which such questioning occurs." (People v. Contreras (2013) 58 Cal.4th 123, 143.) And "[u]nless the voir dire by a court is so inadequate that the reviewing court can say that the resulting trial was fundamentally unfair, the manner in which voir dire is conducted is not a basis for reversal." (People v. Holt (1997) 15 Cal.4th 619, 661.) A trial court's decision whether or not to reopen jury selection is reviewed for an abuse of discretion. (People v. Niles (1991) 233 Cal.App.3d 315, 320-321.)
In this case, the court's questioning of Juror No. 102 was sufficient to determine he could serve on the jury and provide defendant with a fair trial. After Juror No. 102 made his statement, the court followed up with him and verified it would not affect his ability to be an impartial juror. Several circumstances support the court's limited questioning: Juror No. 102's aunt's experience was not significant enough to come to his mind during the initial voir dire, he made it clear the domestic violence was "not in [his] family," he was merely bringing up the information to "make a note" for the court, and he agreed he could still be fair. And neither of the parties raised any concerns at the time. In this context, the extent of the court's questioning was adequate to ensure defendant had a fair trial.
While the reporter's transcript noted Juror No. 102 made "no audible response" to the court's questions about his ability to be fair, the court stated twice during the chambers conference, and the defense attorney never contested, Juror No. 102 said he could still be fair.
Finally, defendant contends the court misunderstood the law applicable to reopening jury selection. Defendant's argument starts with the following colloquy from the chambers conference after the jury was sworn:
"[Defense counsel]: Can I address one issue?
The court: Yeah.
[Defense counsel]: The reason I asked to approach earlier was that after we agreed on our jury, Juror 102 - -
The court: You mean after we swore our jury?"
From this defendant argues the court thought the issue with Juror No. 102 arose after the jury was sworn, and asserts it follows the court applied the wrong legal standard when Juror No. 102 made his comment. We are not persuaded.
Defendant's argument is built on a misunderstanding of the court's comment "after we swore our jury." The comment clearly refers to when defense counsel asked to approach and not when Juror 102 made his comment.
Moreover, at the time of Juror No. 102's comment, the court was obviously aware the jury had not been sworn because it questioned Juror No. 102 and then ordered the jury to be sworn. Finally, nothing in the record indicates the court was confused about the considerations it needed to make when considering reopening jury selection. With no such indication, we presume the court was aware of the legal grounds for reopening jury selection because, "[t]he general rule is that a trial court is presumed to have been aware of and followed the applicable law." (People v. Mosley (1997) 53 Cal.App.4th 489, 496.)
In sum, the court properly addressed the issue raised by Juror No. 102 and did not err by not reopening jury selection. 2. Defendant's Prior Convictions
Because we conclude the court did not err in its handling of Juror No. 102's admission, we need not address defendant's additional argument the court's error was prejudicial.
Defendant's total sentence was increased based on the court's finding defendant had two prior convictions from Nevada which qualified as strikes (§§ 667, subds. (d), (e)(2)(A), 1170.12, subds. (b), (c)(1)) and prior serious felonies (§ 667, subd. (a); section 667(a)). Defendant argues, the Attorney General concedes, and we agree the evidence was insufficient to prove defendant's Nevada priors qualify as serious or violent felonies under California law.
Neither the information nor any of the record specifies which crime was used for the section 667(a) prior.
A. Background
The prosecution alleged defendant had prior convictions in Nevada for conspiracy to commit robbery (Nev. Rev. Stat. § 199.480) and robbery (Nev. Rev. Stat. § 200.380), arising from the same case. Both convictions were alleged as strike priors under section 667, subdivisions (d), (e)(2)(A) and section 1170.12, subdivisions (b), (c)(2)(A), and one qualified as a prior serious felony conviction pursuant to section 667(a).
Defendant waived his right to a jury trial on the prior conviction allegations. During the court trial, the prosecution submitted the information, defendant's guilty plea agreement, and the judgment of conviction for the Nevada case. The guilty plea agreement stated defendant pleaded guilty to both conspiracy to commit robbery and robbery "as more fully alleged in the [information] attached hereto as Exhibit '1.'" The information alleged defendant conspired to commit robbery with four codefendants and did "willfully, unlawfully, and feloniously take personal property . . . from the person of [victim], . . . by means of force or violence, or fear of injury to, and without the consent and against the will of said [victim]." The information further specified defendant and the codefendants entered a grocery store, a codefendant displayed a BB gun, and defendant (along with the codefendants) "demanded and received money and one carton of Newport cigarettes and one carton of Marlboro cigarettes from the clerk" and then left the crime scene together. After reviewing all of the documents, and hearing argument from the parties, the court found "beyond a reasonable doubt that the alleged priors are true."
At sentencing, the court doubled the term of each conviction based on its finding defendant's prior convictions qualified as strikes. The court also used one prior conviction to impose five-year prior serious felony enhancements on defendant's sentences for aggravated mayhem and child endangerment, resulting in a total sentence of 24 years to life for aggravated mayhem and a consecutive determinate sentence of 13 years for child endangerment.
The court dismissed the prior conviction for robbery pursuant to section 1385.
The sentences for the remaining counts were either stayed or run concurrently.
B. Analysis
Under California's "Three Strikes" law, a defendant's sentence can be doubled if the defendant has suffered a prior conviction for a "violent felony" as defined in section 667.5, subdivision (c), or a "serious felony" as defined in section 1192.7, subdivision (c). A defendant is also subject to a five-year sentence enhancement for a prior serious felony. (§ 667(a).) Robbery is both a serious and a violent felony. (§§ 1192.7, subd. (c)(19), 667.5 subd. (c)(9).) Any conspiracy to commit a crime listed in section 1192.7, subdivision (c) is also a serious felony. (§ 1192.7 subd. (c)(42).)
A foreign conviction qualifies as a prior conviction of a serious or violent felony in California if it "includes all of the elements of a particular violent felony as defined in subdivision (c) of Section 667.5 or serious felony as defined in subdivision (c) of Section 1192.7." (§ 667, subd. (d)(2).) To determine if a foreign conviction includes all of the elements of a California strike, "a sentencing court is permitted to identify those facts that were already necessarily found by a prior jury in rendering a guilty verdict or admitted by the defendant in entering a guilty plea, the court may not rely on its own independent review of record evidence to determine what conduct 'realistically' led to the defendant's conviction." (People v. Gallardo (2017) 4 Cal.5th 120, 124 (Gallardo).) The court may not determine a disputed fact that had not been "established by virtue of the conviction itself." (Id. at p. 136.)
"The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt." (People v. Miles (2008) 43 Cal.4th 1074, 1082.) We review the trial court's determination that defendant's Nevada priors qualified as strikes "in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence." (People v. Delgado (2008) 43 Cal.4th 1059, 1067.)
Because, as noted above, any conspiracy to commit a serious felony is itself a serious felony, whether defendant's Nevada conviction for conspiracy to commit robbery qualifies as a strike under California law is dependent on whether a robbery in Nevada would qualify as a robbery in California.
In California, robbery is defined as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." (§ 211.) "Robbery requires the 'specific intent to permanently deprive' the victim of his or her property." (People v. Mora and Rangel (2018) 5 Cal.5th 442, 489.)
Similar to California, to be guilty of robbery in Nevada requires the unlawful taking of personal property from the person, or presence, of another by means of force or fear. (Nev. Rev. Stat. § 200.380.) However the Supreme Court of Nevada has determined robbery requires only a general criminal intent to take the property, and not the specific intent to permanently deprive the victim of their property. (Litteral v. State (1981) 97 Nev. 503, 505-508, disapproved on another point in Talancon v. State (1986) 102 Nev. 294, 301.) Therefore, "in Nevada a robbery conviction can be based on conduct that under California law would not be robbery, and thus would not qualify as a serious felony strike." (People v. McGee (2006) 38 Cal.4th 682, 711, disapproved on another point by Gallardo, supra, 4 Cal.5th at p. 120.)
In his plea agreement, defendant only admitted the facts necessary to establish the elements of robbery in Nevada. Specifically, he admitted he (and his codefendants) used force to steal cigarettes and money. Nevada law did not require defendant to intend to permanently deprive the victim of their property in order to be guilty of robbery, and nothing in his plea agreement specified he was admitting to having an intent beyond what was required to be guilty. Thus, concluding defendant stole the property with the intent to permanently deprive the victim goes beyond the relevant facts defendant admitted and cannot be used as the basis for his increased sentence. (Gallardo, supra, 4 Cal.5th at p. 137.) For this reason, there is not substantial evidence to support the court's findings defendant's convictions meet the elements of robbery in California. Therefore there was insufficient evidence to prove defendant's Nevada conviction for conspiracy to commit robbery qualifies as a strike.
Because we agree there was not sufficient evidence to support the court's findings related to defendant's Nevada priors, we need not consider defendant's additional argument the court violated his Sixth Amendment right to a fair trial by engaging in improper factfinding during the court trial on his priors.
The parties agree, and we do as well, the appropriate remedy is to follow the procedure from Gallardo and remand the matter so the trial court may conduct a new hearing and "make the relevant determinations about what facts defendant admitted in entering [his] plea." (Gallardo, supra, 4 Cal.5th at p. 138.)
DISPOSITION
Defendant's convictions are affirmed. The court's true findings on the strike and prior serious felony allegations are reversed and defendant's sentence is vacated. We remand for retrial of the prior conviction allegations and resentencing.
THOMPSON, J. WE CONCUR: ARONSON, ACTING P. J. IKOLA, J.