Opinion
D057560
10-13-2011
THE PEOPLE, Plaintiff and Respondent, v. KELVIN VINCENT FOSTER, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCD223858)
APPEAL from a judgment of the Superior Court of San Diego County, Gale E. Kaneshiro, Judge. Affirmed.
Kelvin Vincent Foster pleaded guilty to three counts of second degree robbery, and admitted attached firearm enhancements and the truth of prior conviction allegations. He contends the trial court abused its discretion and violated his Constitutional right to due process by declining to hear from his family members at the sentencing hearing. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On November 9, 2009, Jonathon James was walking in North Park near Texas Street when Foster approached him, displayed a revolver and demanded James's money and cell phone. Thinking Foster would kill him, James tripped and fell. After James gave Foster his cell phone, Foster told him to lie on the sidewalk. James then heard a vehicle leave the area.
That same day at about 10:54 p.m., Kyle Smith was sitting in his car talking on the phone in the parking lot of the Fashion Valley mall when Foster walked toward the passenger's side window and asked for directions. Displaying a silver revolver, Foster told Smith to give him everything. After Smith gave Foster his cell phone and other items, Foster ordered Smith to toss his keys outside the car, and place his hands and face down on the steering wheel. Foster then drove away in a blue compact car. Law enforcement recovered the license plate number of the getaway car from a security video of the robbery.
Less than 10 minutes later, Christopher Jones was at a bus stop located on Camino de la Reina, in San Diego County sending text messages when a car pulled up to the curb. Foster got out of the passenger side of the car and told Jones to empty his pockets. Jones complied and Foster asked Jones for Jones's phone. After Jones refused, Foster pulled out a silver revolver and fired a round at the bench. Foster took the phone and left in the car.
Foster pleaded guilty to three counts of robbery, admitted the personal use of a firearm during two of the robberies, and discharging a firearm during the other robbery. Foster also admitted that he had suffered a prison prior, a serious felony prior, and a strike prior.
The probation department recommended a sentence of 46 years, eight months in prison. Although the losses incurred by the victims were relatively small, it noted that the victims were particularly vulnerable, the manner in which the crimes were carried out indicated planning, Foster had numerous prior adult convictions, he was on parole when the crimes were committed, and his prior performance on probation and parole was unsatisfactory. The prosecutor filed a sentencing statement, citing additional aggravating factors, and arguing in favor of the maximum sentence recommended by probation.
Foster filed a statement in mitigation and requested the trial court find him to be outside the spirit of the Three Strikes Law under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). He submitted letters from his mother and step-mother detailing his troubled upbringing and gang participation. Foster also wrote a letter apologizing for the robberies.
The trial court stated at the sentencing hearing that it had read the probation report, the statements submitted by the parties, and had "thought long and hard" about Foster's sentence. After considering a number of factors, the trial court denied Foster's Romero motion. Defense counsel advised the court that Foster's family members were present to speak on his behalf, but the trial court stated it would not hear from them "at this point" and would only hear from the victims. Defense counsel did not object. The court then gave a detailed proposed sentence which resulted in a total term of 44 years, eight months in prison. After hearing argument from defense counsel, the trial court indicated that it had hoped to give him a lesser term, but after looking at "everything that was submitted to me" including the facts of the case and the facts of his prior offenses, it "could not go any lower."
DISCUSSION
"Allocution" refers to the court's inquiry of a defendant as to whether there is any reason why judgment should not be pronounced. (People v. Evans (2008) 44 Cal.4th 590, 593, fn. 2 (Evans).) The Ninth Circuit has ruled that denying defendants the opportunity to speak at their sentencing hearing amounts to a denial of due process subject to harmless error analysis. (Boardman v. Estelle (9th Cir. 1992) 957 F.2d 1523, 1525, 1530 (Boardman).)
In Evans, our high court concluded that a defendant in a noncapital case has a "right at sentencing to make a sworn personal statement in mitigation that is subject to cross-examination by the prosecution." (Evans, supra, 44 Cal.4th at p. 600, italics deleted.) This right is based on Penal Code sections 1200 and 1204. (Id. at pp. 597-598.) (Undesignated statutory references are to the Penal Code.) Section 1200 requires that a trial court ask the defendant whether there is "legal cause to show why judgment should not be pronounced against him" and section 1204 states, in part, that "circumstances [in aggravation or mitigation of punishment] shall be presented by the testimony of witnesses examined in open court." The Evans court explained that "[b]y stating in section 1204 that mitigating evidence must be presented through 'the testimony of witnesses examined in open court' rather than verbal representations, the Legislature has declared that a criminal defendant wishing to make an oral statement to the court in mitigation of punishment must do so through testimony given under oath." (Evans, supra, at p. 598.)
Foster asserts the trial court violated his right to present mitigating witnesses under section 1204 and his federal and state rights to present a complete defense when it refused to allow his family members to speak on his behalf. He cites Boardman and Evans to support his argument that defendants have a due process right to present the sworn testimony of witnesses at sentencing hearings. These cases, however, do not support his contention because they address the right of a defendant to speak at a sentencing hearing.
Under section 1204 a defendant has the right to present evidence in mitigation of his punishment. (People v. Arbuckle (1978) 22 Cal.3d 749, 753; People v. Valdivia (1960) 182 Cal.App.2d 145, 148.) Recently, however, our high court declined to decide whether defendants have a statutory right to present testimony and evidence from family members at a sentencing hearing. (People v. Jackson (2009) 45 Cal.4th 662, 697-698 ["Even assuming, without deciding, that defendant had a right to present witnesses at the sentencing hearing . . ."].) Accordingly, we will assume, without deciding, that Foster had a statutory right to present witness testimony at his sentencing hearing. A sentencing error is prejudicial only if the reviewing court determines that it is reasonably probable a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Wader (1993) 5 Cal.4th 610, 666-667.) As we shall explain, the assumed error was harmless.
Foster's criminal history began with a March 2004 conviction for robbery where he punched the victim in the face and pushed him to the ground. Foster's probation was revoked later that year after a grand theft conviction for purse snatching. In 2008, Foster was convicted of battery and using another person's personal information. Foster had his probation revoked twice, and violated parole at least twice. His current crimes involved three separate victims, against each of whom he used a firearm, and against one of whom he actually fired the weapon. The trial court stated it considered all possibilities, but "absolutely could not give [Foster] a lesser term" because of his criminal history and the aggravated circumstances of the instant offenses. In making this decision, the trial court took into account the probation report, letters from Foster's mother and step-mother, and a letter from Foster. These materials documented Foster's troubled youth, gang involvement and mental illness.
Defense counsel made no offer of proof describing how the proposed testimony of the family members differed from the letters the trial court had already considered and the information about Foster's past contained in the probation report. On this record, we cannot say Foster would have received a more favorable result in the absence of the assumed error. Finally, even if we were to find the error to be of a constitutional magnitude, we would conclude the error to be harmless beyond a reasonable doubt for the reasons set forth above.
DISPOSITION
The judgment is affirmed.
MCINTYRE, J. WE CONCUR:
NARES, Acting P. J.
AARON, J.