Summary
In People v. Goodlett (July 18, 2017, D069892) (Goodlett I), this court conditionally reversed Goodlett's conviction on the ground that the trial court erred in failing to rule on Goodlett's motion for a mistrial.
Summary of this case from People v. GoodlettOpinion
D069892
07-18-2017
THE PEOPLE, Plaintiff and Respondent, v. RANDALL GOODLETT, Defendant and Appellant.
Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. SCN343968) APPEAL from a judgment of the Superior Court of San Diego County, Harry M. Elias, Judge. Conditionally reversed with directions. Benjamin Kington, under appointment by the Court of Appeal, for Defendant and Appellant. Kathleen A. Kenealy, Acting Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found Randall Goodlett guilty of one count of robbery. (Pen. Code, § 211; further undesignated statutory references are to this code.) In bifurcated proceedings, the court found true the following allegations: defendant committed the offense while out on bail (§ 12022.1, subd. (b)); and defendant had one prison prior (§ 677.5, subd. (a)), one serious felony prior (§ 667, subd. (a)(1)) and one strike prior (§§ 667, subds. (b)-(i), 1170.12).
After closing argument and while the jury was deliberating, defense counsel moved for a mistrial based on what she contended was improper rebuttal argument by the prosecutor. Incorrectly believing that defense counsel could not bring such a motion without the express agreement of defendant personally — which defendant did not provide — the trial court declined to rule on the motion.
We agree with defendant that the trial court's failure to rule on defendant's motion is error, and we conditionally reverse the judgment and remand the matter with directions for the court to hear and rule on defendant's motion for mistrial. If the motion is denied, the court is to reinstate the judgment of conviction and sentence. If the motion is granted, the case is to proceed as if there had been no trial.
I.
FACTUAL AND PROCEDURAL BACKGROUND
When the assistant manager of a clothing store in a Carlsbad mall returned from a break, the only other employee at the time told him that defendant had just stolen store merchandise. In fact, as the assistant manager was entering the store following his break, he had seen defendant leaving the store. Rather than calling the police, the assistant manager decided to follow defendant to inquire whether he had taken merchandise.
The assistant manager approached defendant directly across from the store, as he was heading toward the exit of the mall, and asked him whether he had taken anything from the store. Defendant walked past the assistant manager, looked at him, said "no," put his head down and kept walking. The assistant manager followed defendant, continuing to ask him whether he had taken any store merchandise, and defendant continued replying "no."
Almost halfway to the exit of the mall, the assistant manager and defendant began swearing at each other. On cross-examination, the assistant manager acknowledged that at this point he felt "disrespected" by defendant, who had sworn at him and whom the assistant manager believed had taken store merchandise.
Defendant suddenly stopped walking, turned around to face the assistant manager and jumped toward him. The assistant manager thought that defendant was trying to scare him, as if defendant intended to strike him. The verbal exchange continued as the two resumed walking, and prior to exiting the mall, defendant threatened to "knock . . . out" the assistant manager. Defendant's aggression reinforced the assistant manager's belief that defendant was trying to leave the mall with unpaid store merchandise.
Once outside the mall, defendant and the assistant manager continued walking and swearing at each other. The assistant manager continued to feel "disrespected."
At one point, when defendant was approximately one hundred feet ahead of the assistant manager, defendant turned around, pulled from his pants pockets two hats and a T-shirt that the assistant manager recognized from his store, looked at the assistant manager and challenged him to "come get [the items]."
The assistant manager proceeded to follow defendant through the rows of cars in the mall parking lot to a planter, demanding that defendant return the store merchandise. The assistant manager was behind and to the left of defendant, who was holding the store merchandise in his left hand. As the assistant manager approached defendant, defendant turned and with his right hand struck the assistant manager's left shoulder.
The assistant manager followed defendant across the street, all the while asking him to return the store merchandise, which he still held in his hand. On the sidewalk across the street, defendant threw the hats and T-shirt behind him, and the assistant manager and defendant squared up in a fighting stance, each facing the other with fists raised. The assistant manager repeated his demand that defendant return the merchandise, defendant repeated his threat to "knock . . . out" the assistant manager, and in an effort to protect himself the assistant manager swung his right fist and struck defendant in the face.
The assistant manager attempted to recover the store merchandise, but could only pick up the T-shirt before defendant pushed the assistant manager into the bushes and began walking back across the street toward the mall parking lot. The assistant manager continued to follow and talk to defendant, demanding return of all the store's merchandise, until the police arrived. After talking to those present, the police released the assistant manager and gave him the store merchandise.
Toward the end of defendant's trial for robbery, defense counsel argued in closing that defendant was guilty only of theft, not of robbery. More specifically, counsel argued that defendant did not take store merchandise before or during the application of force; rather, according to counsel, the physical confrontation was about "respect," not the theft, and defendant applied force only after the theft, when the assistant manager followed him and verbally assaulted him.
Theft is a lesser included offense of robbery, which includes the additional element of force or fear." [Citation.] If intent to steal arose only after the victim was assaulted, the robbery element of stealing by force or fear is absent.' " (People v. Castaneda (2011) 51 Cal.4th 1292, 1331.) Stated differently, to constitute robbery, the intent to steal must be formed before or during the application of force. (People v. Yeoman (2003) 31 Cal.4th 93, 128-129.)
In rebuttal, the prosecutor argued that the assistant manager was entitled to be angry and to attempt to retrieve the store's merchandise. He began his rebuttal argument as follows:
"[Defense counsel] is a fine attorney but even she couldn't stomach some of the arguments she was making to you because they should be insulting to you because they're insulting to your intelligence. Ask yourselves what is it she actually argued for you? She argued that [the assistant manager] shouldn't have followed the defendant outside when he suspected him of stealing. Really? Because that's how you catch thieves. You follow them. You chase them. You take back what's stolen from you. Otherwise, you're a victim of theft. Is [defense counsel] really getting up here and telling you that you shouldn't find the defendant guilty because, gosh darn it, we don't chase thieves? Is that really what she's telling you? Is that really what you feel is reasonable as the conscience of our community, that that is somehow not allowed, that [the assistant manager] crossed some line trying to get his property back, trying to do his job? Because that is his job." (Italics added.)Later in his rebuttal, in emphasizing that it was defendant, not the assistant manager, who escalated the situation, the prosecutor argued that if the jury finds that defendant "did not use force or fear to commit an offense . . . , then God forbid the next time that someone goes into a store, takes some property. Because the minute you step out of that threshold, according to [defense counsel], they've gone to[o] far." (Italics added.) The trial court sustained defense counsel's timely objection to this argument.
At the very end of the afternoon, while the jury was still deliberating, defense counsel moved for a mistrial based generally on the above-quoted statements the prosecutor had made in his rebuttal closing argument. More specifically, defense counsel characterized these remarks as "prosecutorial misconduct."
Defense counsel acknowledged that the court had sustained her objection to the latter argument at the time the prosecutor made it.
The trial court responded by asking counsel to inquire of defendant whether he wanted a mistrial, stating:
"[A] mistrial request has to be by the defendant. It's his individual choice. You can't request a mistrial over his objection."The court then addressed defendant directly: "Mr. Goodlett, that's your choice because it's your case[,]" and "What would you like to do?" Defendant twice replied, "I'm satisfied," ultimately confirming, "I want to go forward with [the trial]." Accordingly, the court did not rule on the mistrial motion.
"[T]he defendant has to agree to a mistrial. Were I to grant a mistrial without his agreement then jeopardy is attached."
"So what [defendant] has to decide is, does he want to agree to seek a mistrial. I'm not saying whether I'm going to grant it or not going to grant it. Knowing that if it's granted we start all over again. . . . Or is he satisfied having heard what he heard you argue, having heard the evidence, having heard [the prosecutor's] argument that he wishes to proceed with this jury[?]" (Italics added.)
The jury continued its deliberations and reached a guilty verdict on the robbery count the next day. In bifurcated proceedings, the court found true the allegations that defendant committed the offense while out on bail and that he had one prison prior, one serious felony prior and one strike prior. The court sentenced defendant to nine years in prison, as follows: four years on the robbery count, based on the low term, doubled for the prior strike; five years for the prior serious felony conviction; and three years, stayed, on the prior prison term. Defendant timely appealed.
II.
DISCUSSION
" 'A trial court should grant a mistrial only when a party's chances of receiving a fair trial have been irreparably damaged, and we use the deferential abuse of discretion standard to review a trial court ruling denying a mistrial.' " (People v. Ramirez (2006) 39 Cal.4th 398, 462.) Defendant seeks a reversal of the judgment and a remand for the sole purpose of having the trial court exercise its discretion and rule on the motion for mistrial.
The term judicial discretion " 'imports the exercise of discriminating judgment . . . . To exercise the power of judicial discretion all the material facts in evidence must be both known and considered, together also with the legal principles essential to an informed, intelligent and just decision.' " (In re Cortez (1971) 6 Cal.3d 78, 85-86 (Cortez) [discretion to place a defendant on probation]; accord, People v. Tran (2015) 242 Cal.App.4th 877, 887 [discretion to reduce a wobbler offense to a misdemeanor].) " 'Failure to exercise a discretion conferred and compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental procedural rights, and thus requires reversal.' " (People v. Downey (2000) 82 Cal.App.4th 899, 912.) As specifically applicable here, a ruling otherwise within the trial court's discretion should be reversed where, due to "an erroneous understanding of the law," the court fails to exercise the discretion actually vested in it. (Ibid. [sentencing option].)
The trial court applied an erroneous understanding of the law. In explaining its refusal to rule on the motion for a mistrial, the trial court believed that if it granted a mistrial without defendant's explicit joinder in the motion (which defendant did not provide), double jeopardy protections would preclude empaneling a new jury. The court's belief is incorrect: "[W]hen the defendant requests and is granted a mistrial as the result of prosecutorial error, it is ordinarily assumed there is no barrier to retrial." (People v. Bell (2015) 241 Cal.App.4th 315, 338-339 (Bell).) Further, defense counsel may bring a mistrial motion without the client's participation:
The exceptions to this rule, which are arguably inapplicable here, involve situations where the prosecutor intentionally commits misconduct for the purpose of causing a mistrial. (See Oregon v. Kennedy (1982) 456 U.S. 667, 669 [under U.S. Const., 5th Amend.]; People v. Batts (2003) 30 Cal.4th 660, 695 [under Cal. Const., art. I, § 15].)
"Although the right to request a mistrial or proceed to a conclusion with the same jury is a fundamental right, the law does not require that it be personally waived by an accused, nor does the law require that an accused be admonished concerning the nature of the right. . . . Accordingly, trial counsel had the right to make that decision as a matter of trial tactics . . . even over appellant's objection." (People v. Brandon (1995) 40 Cal.App.4th 1172, 1175, citations omitted; italics added.)
" 'When the accused exercises his constitutional right to representation by professional counsel, it is counsel, not defendant, who is in charge of the case. By choosing professional representation, the accused surrenders all but a handful of "fundamental" personal rights to counsel's complete
control of defense strategies and tactics.' " (In re Horton (1991) 54 Cal.3d 82, 95.)
Accordingly, the trial court should have ruled on counsel's motion, regardless of defendant's answer to the court's question whether a mistrial was his choice. The People have two responses, neither of which is persuasive.
First, quoting from People v. Davis (2009) 46 Cal.4th 539, 612, the Attorney General contends that, because defendant failed both to make a timely objection and to request an admonishment that the jury disregard the prosecutor's prejudicial remarks, defendant did not preserve his argument for review on appeal. In Davis, however, the defendant did not move for a mistrial during the trial; rather, the appeal involved only a substantive claim of prosecutorial misconduct during the trial. (Id. at pp. 612-614.) This distinction is significant, since the prerequisites are different for an appellate court to review the denial of a motion for mistrial based on prosecutorial misconduct and an affirmative claim of prosecutorial misconduct. In People v. Collins (2010) 49 Cal.4th 175, for example, even though the defendant did not preserve his prosecutorial misconduct argument for appellate review because he failed to request a jury admonition, the appellate court nonetheless could review the denial of defendant's mistrial motion based on prejudice from the same alleged misconduct. (Id. at pp. 198-199; accord, People v. Silva (2001) 25 Cal.4th 345, 373.) Because defendant here seeks review only of the failure to rule on his mistrial motion (and presents no substantive claim of prosecutorial misconduct), neither Davis nor its requirement for both a timely objection and request for admonition is applicable.
We express no opinion as to whether (1) defendant's motion for mistrial during jury deliberations was a timely objection, or (2) defendant was prejudiced by the prosecutor's comments in the rebuttal closing argument.
Second, the Attorney General argues that, even if the trial court erred in its handling of the mistrial motion, any such error is harmless. Such an argument, however, assumes that the court denied the motion, because such an argument does not take into consideration the possibility that the trial court could have granted the motion. Since we cannot say as a matter of law that the record will not support the grant of defendant's motion, we cannot say as a matter of law that defendant was not prejudiced by the trial court's failure to have ruled on the motion. In contrast, defendant was prejudiced by not receiving the benefit of the trial court's exercise of discretion to which he was entitled — namely, an " 'informed, intelligent and just decision' " in the first instance from the judicial officer who had presided over the proceedings (Cortez, supra, 6 Cal.3d at p. 86).
" ' "[W]hen the validity of a conviction depends solely on an unresolved or improperly resolved factual issue which is distinct from issues submitted to the jury, such an issue can be determined at a separate postjudgment hearing and if at such hearing the issue is resolved in favor of the People, the conviction may stand." ' " (People v. Gaines (2009) 46 Cal.4th 172, 180 [motion for discovery of information in peace officer's confidential personnel records]; accord, People v. Moore (2006) 39 Cal.4th 168, 177-178 [motion to suppress evidence]; Bell, supra, 241 Cal.App.4th at p. 360 [plea of "once in jeopardy"].) We conclude that such a disposition is appropriate for the error identified in this appeal.
We decline defendant's unrelated invitation to "state [our] view" whether we agree with what defendant acknowledges is binding Supreme Court authority holding that the definition of "robbery" for purposes of section 211 includes the situation where (as here) the accused first uses force or fear against someone entitled to possession of property during the attempted escape. (See People v. Williams (2013) 57 Cal.4th 776, 787 ["a defendant who uses force or fear in an attempt to escape with the property taken by larceny has committed robbery"]; People v. Gomez (2008) 43 Cal.4th 249, 257 [" 'mere theft becomes robbery if the perpetrator, having gained possession of the property without use of force or fear, resorts to force or fear while carrying away the loot' "].) --------
III.
DISPOSITION
The judgment is conditionally reversed, and the matter is remanded for the superior court to consider and rule on the merits of defendant's motion for a mistrial. If the motion is denied, the court is to reinstate the judgment of conviction and sentence. If the motion is granted, the case is to proceed as if there had been no trial.
NARES, J. WE CONCUR: BENKE, Acting P. J. IRION, J.