Opinion
F040528.
7-3-2003
THE PEOPLE, Plaintiff and Respondent, v. ROJELIO LOPEZ, Defendant and Appellant.
J. Peter Axelrod, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Jo Graves, Assistant Attorney General, Stephen G. Herndon and Armand R. Feliciano, Deputy Attorneys General, for Plaintiff and Respondent.
SUMMARY OF PROCEEDINGS BELOW
In case No. 670260-9, appellant, Rojelio Lopez, was convicted, by a jury, of being a felon in possession of a firearm (count I; Pen. Code, § 12021, subd. (a)(1)), and being a felon in possession of ammunition (count II; Pen. Code, § 12316 , subd. (b)(1)).
The prohibition on possessing ammunition applies to those persons who are prohibited from possessing firearms under Penal Code sections 12021 and 12021.1, which does not necessarily require a prior felony conviction. However, since the basis of the charge against appellant is his prior felony convictions, we shall refer to this charge as felon in possession of ammunition.
Appellant was sentenced to the midterm of two years imprisonment for each count, with the sentence for count II to run concurrent to the sentence for count I. In addition, after judgment was entered, appellant admitted to being in violation of probation in a different case (case No. 658048-4), based upon the judgment just entered in No. 670260-9. The court imposed a sentence of two years imprisonment for the violation, to run concurrent to the sentence imposed in No. 670260-9.
On December 20, 2001, Sanger Police Officers responded to the residence of Marina Lopez, appellants mother, who had reported hearing a loud noise, "like thunder." Upon arrival, the officers found appellant, along with a rifle, nine millimeter ammunition and two shotgun shells, in a bedroom. The officers also discovered a hole in the wall between the bedroom and Lopezs adjoining bedroom. A spent nine millimeter shell casing and a styrofoam ammunition holder were located in the wastebasket of the bedroom.
This date is significant with respect to appellants arguments on appeal concerning the status of his December 21, 2000, conviction for receiving stolen property.
DISCUSSION
I.
A.
The trial court did not err by instructing the jury that appellants prior 1989 burglary conviction was a felony.
The disputed portion of these instructions was as follows:
"The conviction of the crime of Burglary in violation of Penal Code section 459 is the conviction of a felony."
It was not up to the jury to determine whether the 1989 prior conviction was a felony or a misdemeanor; as a matter of law, the conviction was a felony. The records introduced with respect to this prior conviction showed that, when judgment was pronounced, imposition of sentence was suspended and the defendant was admitted to five years formal probation, conditioned upon spending 365 days in custody. This sentence made the crime a felony for all purposes. (People v. Banks (1959) 53 Cal.2d 370, 391, 1 Cal. Rptr. 669, 348 P.2d 102 [if imposition of sentence is suspended conviction is a felony]; People v. Esparza (1967) 253 Cal. App. 2d 362, 364-365, 61 Cal. Rptr. 167 [imposition of sentence suspended and probation granted upon condition of serving time in jail, offense is still a felony, not a misdemeanor]; Pen. Code, § 17, subd. (b)(3) [a crime that is "punishable, in the discretion of the court, by imprisonment in the state prison or by fine or imprisonment in the county jail" is a misdemeanor when, among other circumstances "the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor" (emphasis added)].) The trial court was thus dutybound to tell the jury the conviction was a felony. (People v. Perry (1974) 42 Cal. App. 3d 451, 455, 116 Cal. Rptr. 853 [trial court had duty to inform jury prior offenses were felonies; error was in instructing with language suggesting defendant had in fact been convicted of those felony offenses]; People v. Bradley (1970) pp.3d 273, 278 [prosecution presented prima facie evidence of prior felony conviction; absent contrary evidence, court correctly instructed jury conviction was a felony].)
The prosecutions evidence consisted of certified court records filed in Fresno County Superior Court case No. 402681-1, consisting of: a certification to the superior court after a plea of guilty to a felony, naming Rogelio Lopez as the defendant; a copy of the criminal complaint naming Rojelio Lopez, with a birthdate of January 2, 1968, as the defendant; a sentencing minute order dated July 25, 1989, and a redacted reporters transcript of the sentencing proceedings on July 25, 1989.
B.
The trial court did not err by instructing the jury, with respect to the 1989 prior conviction for burglary, that the identity of a person may be presumed or inferred from an identity of name.
The court gave the following special instruction to appellants jury:
"The identity of a person may be presumed, or inferred, from identity of name."
According to certified records submitted into evidence from the Department of Motor Vehicles, appellants true name is Rojelio Lopez and he was born on January 2, 1968, and the name Rogelio Lopez is an alias. The defendant in the 1989 burglary case had the same birthdate as appellant. Though the defendants true name — Rojelio — was set out on the criminal complaint in the 1989 case, the remaining documents relating to the 1989 conviction spell the defendants first name as Rogelio.
Under the long-established doctrine of idem sonans, a rebuttable presumption exists when the name of the defendant is similar in spelling or sound to the name of a defendant in a prior action and when documents from the prior action are submitted as proof of the current defendants prior conviction. (People v. Mendoza (1986) 183 Cal. App. 3d 390, 401, 228 Cal. Rptr. 308 [spelling of the defendants middle name, or the use of a different middle name, appeared in various court documents; documents properly admitted for proof of prior convictions based upon presumption or inference of identity from similarity of name under doctrine of "idem sonans"]; People v. Brucker (1983) 148 Cal. App. 3d 230, 242, 195 Cal. Rptr. 808; People v. Sarnblad (1972) 26 Cal. App. 3d 801, 805-806, 103 Cal. Rptr. 211; People v. Luckett (1969) 1 Cal. App. 3d 248, 253, 81 Cal. Rptr. 539 [defendants name sufficiently uncommon; presumption of identity of person from identity of name]; People v. Sberno (1937) 22 Cal. App. 2d 392, 400, 71 P.2d 274; People v. Wong Sang Lung (1906) 3 Cal.App. 221, 224-225, 84 P. 843 [presumption or inference of identity from similarity of name not applicable where evidence indicates name is common or shows the same name also belongs to another person]; see 1 Whartons Criminal Evidence (15th ed. 1997) § 3:13, pp. 182-184 [discussing applicability of presumption]). This "presumption constitutes a species of evidence which, unless controverted, is sufficient proof of the existence of the fact to which it relates. [Citations.]" (People v. Sberno, supra, 22 Cal. App. 2d at p. 400; In re Ritchie (1984) 159 Cal. App. 3d 1070, 1073, 206 Cal. Rptr. 239, [The name of a person is the distinctive characterization in words by which he is known and distinguished from others; upholding trial courts dismissal of petition to change petitioners name to "III"].)
The trial courts instruction correctly stated the rule, and it was for the jury to decide whether the presumption should be given effect in light of all the other evidence. (People v. Berti (1960) 178 Cal. App. 2d 872, 876, 3 Cal. Rptr. 514 [whether an inference can be drawn from evidence is question of law; whether the inference shall be drawn is a question of fact for the jury].)
Here, there was no evidence to the effect that appellant was not the person who suffered the prior convictions. Appellants counsel at trial made certain representations about the commonality of the name Lopez, but no such evidence was ever offered. Even if we assume that Lopez is a common name, and putting aside the fact of the same birthdate between appellant and the defendant in the 1989 burglary prosecution, we doubt the given name Rogelio or Rojelio is common.
C.
The instruction did not unconstitutionally shift the burden of proof. The jurors were told only that they may presume or infer that appellant was in fact the same person convicted of the 1989 burglary. They were not told that this fact had been conclusively established, and the issue whether appellant was in fact the same person, presented by the circumstantial evidence of the prior conviction of "Rogelio Lopez" for burglary in 1989, was left for their independent resolution. Thus, the instruction did not create a mandatory presumption because the jurors were allowed to reach their own conclusions based upon the evidence about the application of the inference or presumption. (See Ulster County Court v. Allen (1979) 442 U.S. 140, 156-160, 60 L. Ed. 2d 777, 99 S. Ct. 2213 [discussing distinction between impermissible mandatory presumptions and permissible permissive presumptions]; Sandstrom v. Montana (1979) 442 U.S. 510, 520, 61 L. Ed. 2d 39, 99 S. Ct. 2450 [mandatory presumption may be unconstitutional if it relieves prosecutions burden of proof on element of offense]; People v. Roder (1983) 33 Cal.3d 491, 504-505, 189 Cal. Rptr. 501, 658 P.2d 1302 [finding as unconstitutional mandatory presumption in Pen. Code, § 496].)
Appellants jury was told that the instructions were to be considered as a whole (CALJIC No. 1.01), and were further informed about the distinction between direct and circumstantial evidence (CALJIC No. 2.00), which contains the definition of the term inference: "An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts established by the evidence."
II.
Any error by the trial court in failing to give a unanimity instruction with respect to the offense charged in count I was harmless beyond a reasonable doubt. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1536 [the failure to give a unanimity instruction, where one is required, will not require reversal if the reviewing court finds the error to be harmless beyond a reasonable doubt]; People v. Deletto (1983) 147 Cal. App. 3d 458, 472— 473, 195 Cal. Rptr. 233; Chapman v. California (1967) 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824; see People v. Matute (2002) 103 Cal.App.4th 1437, 1448-1449 [recognizing split of authority as to whether Chapman or People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, applies, and deciding issue under more stringent Chapman standard]; People v. Napoles (2002) 104 Cal.App.4th 108, 119, fn. 8 [recognizing split applying both standards]; People v. Vargas (2001) 91 Cal.App.4th 506, 561-562 [recognizing split, but adopting Watson as proper standard].)
Appellant contends that, because the prosecution presented evidence of two separate prior felony convictions, the court erroneously failed to sua sponte instruct the jurors that they must unanimously agree on which prior felony — the 1989 burglary conviction or the 2000 receiving stolen property conviction — was proven beyond a reasonable doubt. (CALJIC No. 17.01; People v. Gonzalez (1983) 141 Cal. App. 3d 786, 791, 190 Cal. Rptr. 554 ["A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged"], disapproved on other grounds in People v. Kurtzman (1988) 46 Cal.3d 322, 330, 250 Cal. Rptr. 244, 758 P.2d 572; People v. Castaneda (1997) 55 Cal.App.4th 1067, 1070-1071 [defendant convicted of possession of heroin, could have been based upon heroin seized from residence or heroin later seized from defendants person during booking search; defendant proffered separate defenses to each act].)
The offense of possession of ammunition charged in count II could have been based upon appellants possession of either the nine millimeter ammunition or the two shotgun shells. As to this charge, the trial court correctly instructed the jurors that they must unanimously agree as to which ammunition appellant illegally possessed. (CALJIC No. 17.01)
Had the jury been given the allegedly omitted instruction, we are satisfied beyond a reasonable doubt the jury would still unanimously have found appellant guilty of the count I charge because the jury, at minimum, would have found the 1989 burglary conviction (a felony) to have been committed by appellant. The trial court told the jury, correctly, that the prior conviction was a felony, and appellant offered no evidence to counter the fact that the defendant convicted of the crime in 1989 had the same name and the same birthdate as appellant. Under these circumstances, the likelihood a unanimity instruction would have prompted the jury to acquit appellant of the count I offense is, in our view, nil.
III.
A.
The court did not impose an unauthorized sentence for the probation violation.
On December 21, 2000, appellant withdrew his plea of not guilty and pled no contest to possession of stolen property. (Pen. Code, § 496.) Before acceptance of this plea, the following colloquy occurred:
"MR. CRIEGO: Franz Criego on behalf of Mr. Lopez, present in court. At this time Mr. Lopez wishes to withdraw his plea and enter a plea of not guilty and — enter a new and different plea, Im sorry, of no contest to Count Two. The People have agreed to dismiss Count One. I have represented to Mr. Lopez that at the time of his sentence, which will be thirty days from today, that the court will consider credit for time served. Ive also explained to Mr. Lopez that as part of the plea bargain in this case, that the court has indicated that at the end of one year if there are no further convictions that this case may be reduced to a misdemeanor. Is that your understanding, Mr. Lopez?
"THE DEFENDANT: Yes, that it should be reduced to a misdemeanor.
"MR. SKILES [prosecutor]: The only change I would make is its not no convictions, no violations of probation.
"THE COURT: No convictions or violations of probation, do you understand that?
"THE DEFENDANT: Yes.
"THE COURT: Do you want to change this? [referring to the change of plea form]
"MR. CRIEGO: Ill change it, yes.
THE DEFENDANT: So Ill be out in thirty days?
THE COURT: Yes, but youll be on probation, you understand that?
THE DEFENDANT: Yes.
MR. CRIEGO: Ive made that change to the change of plea form and I have initialed it for the record." (Emphasis added.)
The change of plea form lists one of the conditions of appellants plea as: "496(a)a [sic]; To be reduced to a misdemeanor if no further convictions or violations of probation at the end of one year; court will consider credit for time served after RPO" (Capitalization omitted; emphasis added.)
B.
Appellant contends the court erred when it sentenced him to a concurrent term of two years imprisonment for his admitted violation of probation in Fresno County Superior Court Case No. 658048-4. Appellant asserts that, since he was not found to be in violation of probation or convicted of any offense until more than a years time (on March 28, 2002) after entry of the plea in the prior action, that earlier felony conviction was automatically reduced to a misdemeanor by virtue of the terms of the plea bargain. Specifically, appellant points to the courts statement which preceded appellants admission of the probation violation:
In a related argument which assumes his primary contention is correct, appellant challenges the courts restitution fine under Penal Code section 1202.45, which permits imposition of such a fine when a sentence includes a period of parole. Since, in appellants view, he could not be sentenced to prison for the violation of misdemeanor probation, the restitution fine was improperly imposed. The issue is moot, given our disposition.
"THE COURT: Mr. Lopez, do you admit that you violated your terms of probation in — that were imposed in People versus Lopez, 658048-4, specifically that term of probation that you obey all laws, and that the basis of your violation of probation is the two convictions that you suffered in this case?"
According to appellant, the terms of the plea agreement did not require him or the probation officer to apply for a reduction of the felony to a misdemeanor. (Pen. Code, § 17, subd. (b)(3).) Therefore, in appellants opinion
"the language [of the court in the prior action] simply mandates that it happen ... The reduction either took place by operation of law, or imposed as duty on the court to modify the judgment on its own motion."
First, we do not read the December 21, 2000, statement by counsel as expansively as does appellant. The statement did not say the felony "would reduce" to a misdemeanor; it said it "may be reduced" to a misdemeanor. This choice of words posits the possibility that the reduction would not take place, depending upon the circumstances and implying necessarily some action by the court to decide whether in fact to order the reduction. In fact, the choice of words suggests rather strongly that the speaker was cognizant of the courts jurisdictional limits and had in mind the provisions of Penal Code section 17, subdivision (b)(3) and Penal Code section 1203.3, subdivision (b), which govern the reduction of felony offenses to misdemeanors. (See People v. Howard (1997) 16 Cal.4th 1081, 1092, 946 P.2d 828 [courts authority with regard to granting of probation is "wholly statutory"].) Both of these statutes require, at a minimum, some action, either by the court, the defendant or a probation officer, to initiate the statutory procedure for reduction. In addition, the words in the change of plea form — to be reduced — also connote the need for some future action.
Appellants use of the word "should" in his response to the statement of the court does not manifest an understanding of certainty with respect to the anticipated result.
Penal Code section 17 subdivision (b)(3) states that a "wobbler" is a misdemeanor: "When the court grants probation to a defendant without imposition of sentence and at the time of granting probation, or on application of the defendant or probation officer thereafter, the court declares the offense to be a misdemeanor." (Italics added.)
Penal Code section 1203.3 subdivision (b) states, in pertinent part:
"The exercise of the courts authority in subdivision (a) to revoke, modify, change, or terminate probation is subject to the following:
(1) Before any sentence or term or condition of probation is modified, a hearing shall be held in open court before the judge. The prosecuting attorney shall be given a two-day written notice and an opportunity to be heard on the matter, ... [P] ... [P]
(B) As used in this section, modification of sentence shall include reducing a felony to a misdemeanor.
(2) No order shall be made without written notice first given by the court or the clerk thereof to the proper probation officer of the intention to revoke, modify, or change its order." (Italics added.)
The statutory power under Penal Code section 1203.3, subdivision (b) requires proper notice be given to the district attorney and probation officer prior to the courts action. (Stats. 1991, ch. 655, § 1, pp. 3016.2-3016.3.) It is clear the purpose behind this notice requirement is to ensure that the probation department and the district attorneys office have the opportunity to contest a defendants request to modify probation, including reduction of a felony conviction to a misdemeanor.
In sum, no action was taken to have the court declare the prior felony to be a misdemeanor, and that prior felony conviction did not magically become a misdemeanor on the anniversary date of appellants plea, given the specific words used in connection with the grant of probation on December 21, 2000.
Second, on December 20, 2001, the date appellant was arrested for the charges brought in this case, he was a convicted felon based upon the December 21, 2000, plea. These new offenses were violations of probation when they occurred. (People v. McGavock (1999) 69 Cal.App.4th 332, 339 [commission of new offense, even if not subject to prosecution, is a violation of probation and can result in revocation of probation]; In re Coughlin (1976) 16 Cal.3d 52, 57-58, 127 Cal. Rptr. 337, 545 P.2d 249 [even though acquitted of new charges, or conviction reversed on appeal, probation may still be revoked based on conduct which resulted in the new charges].) In other words, appellant mistakenly assumes there is no "violation of probation" until it is later declared; this simply is not so. (Ibid.) Appellants convictions in this case just confirmed that he had violated probation when he committed the instant offenses, which occurred less than one year after his plea in the former case.
DISPOSITION
The judgment is affirmed.
WE CONCUR: Buckley, J., and Wiseman, J.