Summary
recognizing that a stayed sentence operates when the formerly designated principal count is eliminated
Summary of this case from People v. ParvinOpinion
No. E045149.
Filed June 5, 2009 Published Order July 2, 2009 [CERTIFIED FOR PARTIAL PUBLICATION ]
Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of parts 3. and 4.
Appeal from the Superior Court of San Bernardino County, No. FSB058420, Annemarie G. Pace, Judge.
Mark Yanis, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Peter Quon, Jr., Karl T. Terp and Lynn McGinnis, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
1. Introduction
All statutory references are to the Penal Code.
A jury convicted defendant of one count of first degree residential burglary and one count of attempted second degree robbery. (§§ 459, 664, 211.) Defendant admitted two prior convictions from June 1982 and April 1997. (§ 667.5, subd. (b).) The court sentenced defendant to a total sentence of nine years in prison.
On appeal, defendant argues the court erred in denying his motion for new trial. Defendant challenges CALCRIM No. 223 and his two-year sentence on count 2. We affirm the judgment with directions.
2. Facts
Juan Martinez testified he met defendant and his girlfriend panhandling outside a restaurant. Defendant said they were homeless and hungry and Martinez bought them some food. Martinez returned to his nearby hotel room and retired for the night. Martinez saw defendant again the next day at a coffee shop. About an hour later, defendant knocked on Martinez's hotel room door. Martinez opened the door and defendant hit him in the face several times, causing Martinez to fall down. Defendant demanded money and began throwing items around the room. He grabbed Martinez's wallet and emptied it on the bed. The wallet contained credit cards but no money. The incident lasted a few minutes.
Martinez called the 911 operator and the police responded immediately. Martinez's face was bruised and bleeding. The police, with Martinez accompanying them, found defendant at a bus stop across the street from the hotel.
Martinez denied having told the police that he had dinner and drank beer with defendant and his girlfriend before going back to his hotel room together. He admitted to having a prior felony drug conviction and conviction for vandalizing property in his own home.
Defendant did not testify.
3., 4. 3. New Trial Motion
See footnote, ante, page 1161.
Defendant argues the trial court abused its discretion when it denied his new trial motion because it failed to evaluate the evidence independently, "in effect acting as a `13th juror.'" ( People v. Lagunas (1994) 8 Cal.4th 1030, 1038, fn. 6.) We conduct a deferential review of the trial court's decision. ( People v. Coffman and Marlow (2004) 34 Cal.4th 1, 127; People v. Davis (1995) 10 Cal.4th 463, 524, citing People v. Robarge (1953) 41 Cal.2d 628, 633.)
In denying the new trial motion, the trial court stated: "The argument that Mr. Wright [defense counsel] and his colleague put forth in the documents, as well as his statements today are essentially the same arguments that the jury heard. What this came down to was a credibility call and the jury made that call and found that the victim was credible, despite the fact that they heard that he had prior convictions, despite the inconsistencies in his testimony and with the corroboration of the 911 tape and the photographs.
"I'm not going to second guess the jury's decision on credibility. They heard essentially the same arguments that Mr. Wright made today. He made the same arguments in his closing argument."
Defendant contends the court declined to make an independent appraisal of the evidence because it deferred to the jury's determinations regarding credibility. We do not agree with defendant's interpretation of the trial court's comments. Instead, we take the trial court's comments to mean that it independently agreed with the jury rather than deferring to the jury. For example, in People v. Price (1992) 4 Cal.App.4th 1272, 1275-1276, "[t]he court first denied the request for new trial, and then said, `I think the evidence was sufficient.' Only after making this statement did the court say `there is enough evidence there for the jury to do what the jury did . . .' In other words the court's exercise of its independent judgment is reflected in its statement that the evidence was sufficient. . . . [¶] The principles underlying the granting or denying of a new trial motion are not arcane. Lawyers and judges are well aware there is no more awesome power than that of the trial court in determining whether to grant or deny a new trial motion. In a jury trial it is the only time the court must exercise independent judgment in weighing the evidence. . . . Although it would have been preferable for the court to have been more specific, stating it was denying the motion based on its independent weighing of the evidence, its failure to do so and its use of less than artful language cannot be equated with having applied the wrong standard." Similarly, in the present case, we deem it enough for the court to express that it was persuaded by the evidence and would not "second-guess" the jury.
We also do not agree with defendant's position that the evidence against him was inherently implausible. Martinez may have been confused or he may have misrepresented the degree of contact he had with defendant before the burglary and attempted robbery. But, even if Martinez did have a drink in his hotel room with defendant and his girlfriend, that would not make the burglary/robbery scenario less likely. In spite of Martinez's criminal record and the inconsistencies in his testimony, the corroborating evidence of his physical injuries and the recorded call to 911 provides ample evidence to support defendant's conviction. It was not an abuse of discretion for the trial court to deny defendant's new trial motion: "Where, as here, a discretionary power is inherently or by express statute vested in the trial judge, his or her exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." ( People v. Jordan (1986) 42 Cal.3d 308, 316.)
4. CALCRIM No. 223
Defendant contends the jury instruction CALCRIM No. 223 (direct and circumstantial evidence) violated his federal constitutional right to due process by shifting the burden of proof to defendant and undermining the presumption of innocence. We review defendant's constitutional challenges pursuant to sections 1259 and 1469. Defendant's arguments have been rejected by the Third and Fifth Districts in People v. Anderson (2007) 152 Cal.App.4th 919 ( Anderson) and People v. Ibarra (2007) 156 Cal.App.4th 1174 ( Ibarra) and by Division One of the Fourth District in People v. Smith (2008) 168 Cal.App.4th 7 ( Smith).
CALCRIM No. 223 defines direct and circumstantial evidence and explains the difference between the two. The portion of CALCRIM No. 223 that defendant challenges was read by the trial court as follows: "Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact has been proved based on all the evidence."
Defendant advances essentially the same arguments rejected in Anderson, supra, 152 Cal.App.4th at pages 929 and 930; Ibarra, supra, 156 Cal.App.4th at page 1186; and Smith, supra, 168 Cal.App.4th at page 18. We adopt the reasoning of those decisions and hold that the trial court neither erred nor denied defendant due process or a fair trial by giving the instruction.
5. Sentence on Count 2
On the first count for residential burglary, the court sentenced defendant to four years, doubled to eight years. The court also sentenced defendant to one year consecutively for a prior prison term. Thus, defendant's total prison sentence on count 1 was nine years.On count 2 for attempted robbery (§§ 211, 664), the trial court pronounced the imposition of sentence somewhat incoherently as "one year consecutive doubled, but that will be stayed pursuant to 654." The minute order recites: "As to Count 2, the Court imposes the LOW term of 1 years and 0 months. 654 PC stay GRANTED on Count (s) 2." The abstract of judgment records the sentence on count 2 as the low term stayed under section 654.
The court erred in its oral pronouncement because the correct sentence for the low term on count 2 was 16 months, not one year. (§ 18.) Furthermore, even if the term is doubled, it cannot be both consecutive and stayed simultaneously because the two are mutually exclusive.
Defendant argues that, because the subordinate term is stayed, under section 1170.1, the sentence on count 2 should be one-third of the middle term of two years. Calculated in that style, the sentence on count 2 would be a term of eight months doubled to 16 months. The People contend that the court should have imposed the low term of 16 months doubled to 32 months and stayed. We agree with the People.
Section 654 required the court to impose the sentence on count 1 with the longest term. ( People v. Kramer (2002) 29 Cal.4th 720, 723-725 [ 128 Cal.Rptr.2d 407, 59 P.3d 738].) The term on count 2, which is subject to section 654, is stayed. ( Kramer, at p. 725; People v. Dominguez (1995) 38 Cal.App.4th 410, 420 [ 45 Cal.Rptr.2d 153]; People v. Le (2006) 136 Cal.App.4th 925, 932 [ 39 Cal.Rptr.3d 146].) Le, cited by defendant, does not hold any differently. It states only that a sentence should be stayed rather than consecutive. ( Le, supra, at p. 932.)
The one-third-the-midterm rule of section 1170.1, subdivision (a), only applies to a consecutive sentence, not a sentence stayed under section 654. If count 1 should ever be invalidated, a stayed sentence of 32 months, rather than 16 months, on count 2 will ensure that defendant's punishment is commensurate with his criminal liability. ( People v. Kramer, supra, 29 Cal.4th at p. 723.) Furthermore, the imposition of a "consecutive" and "stayed" sentence would be meaningless because the stayed sentence would only operate if the principal count is eliminated. Therefore, a stayed sentence cannot be consecutive to a principal sentence.
6. Disposition
We may correct an unauthorized sentence. ( People v. Smith (2001) 24 Cal.4th 849, 852 [ 102 Cal.Rptr.2d 731, 14 P.3d 942].) We order the abstract of judgment corrected to reflect a sentence of 32 months stayed under section 654. Otherwise, the judgment is affirmed.Richli, Acting P. J., and King, J., concurred.