Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Contra Costa County Super. Ct. No. 050324863
Haerle, J.
I. INTRODUCTION
Maunice Sandefur and Michael J. Crummer were jointly tried and convicted by a jury of felony assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1) ) and second degree robbery (§§ 211; 212.5, subd. (c)). The jury also found true allegations that appellants personally inflicted great bodily injury and personally used a deadly weapon (§§ 12022.7, subd. (a); 12022, subd. (b)(1)). A second jury found true numerous prior conviction allegations with respect to each appellant. Thereafter, the trial court sentenced Sandefur to a total term of 13 years in prison and Crummer received a Three Strikes sentence of 37 years to life.
Undesignated statutory references are to the Penal Code.
Sandefur raises a single issue on appeal. She contends the trial court erred by permitting the prosecutor to file an amended information alleging additional prior prison term allegations against her after the jury that had convicted her was discharged. Approaching this issue from a different direction, Crummer contends that his trial counsel rendered ineffective assistance by consenting to the filing of the amended information after the jury that convicted appellants had been discharged. We agree with Sandefur and modify her sentence to correct the court’s error. However, we find that Crummer has failed to substantiate his ineffective assistance claim on appeal.
On appeal, Crummer also contends the judgment against him must be reversed because of an evidentiary error relating to Sandefur’s trial testimony and that the trial court made a sentencing error. In a separately filed in pro per petition for writ of habeas, corpus, which we consider along with this appeal, Crummer seeks reversal of the judgment on a variety of grounds. Aside from the sentencing error, which the People concede we must correct, we reject Crummer’s contentions, affirm the judgment and deny the petition.
II. STATEMENT OF FACTS
Sandefur’s sister, Pandora Lewis, had a laptop computer that she wanted to sell. Sandefur agreed to help her sell it and arranged for a mutual acquaintance named Juanita Murdoch to buy it. On April 22, 2003, Sandefur sold the laptop to Murdoch for an agreed price of $200. Murdoch paid $170 and told Sandefur to come to her home the next day to pick up the $30 balance.
On the evening of April 23, 2003, Lewis went over to Murdoch’s apartment. Murdoch’s friends, Betty Davis-Warren (Davis) and Sadie Donelson, were visiting her. Lewis saw her laptop on the kitchen table and asked whether Sandefur had sold it to Murdoch. When Murdoch said she had, Lewis became angry and immediately called Sandefur. Approximately ten minutes later, Sandefur arrived at Murdoch’s apartment. Davis, who was outside on the porch smoking a cigarette, followed Sandefur into the apartment. Donelson saw Sandefur arrive but then went to the mailboxes on the first floor of the building.
Murdoch testified at trial that Sandefur came “barging through the door,” and began arguing with Lewis about the money that Murdoch had paid for the computer. When Murdoch complained about some missing software, Sandefur began yelling at her. Murdoch testified that she left the room and Sandefur followed her. At some point, the two women began to fight. According to Murdoch, Sandefur threw the first punch but Murdock temporarily gained the upper hand when she became “crazy” angry after Sandefur pulled off her hair extensions. Then, however, Sandefur pulled out a claw hammer, either from her pants leg or waist and hit Murdoch in the head with it, causing her to slip on a bedroom rug and fall to the floor.
Davis testified that she watched the argument between Sandefur and Murdoch turn into a “full-fledged fight.” Sandefur threw the first punch, and the fight moved down the hallway into a bedroom. Davis, who was “kind of in shock” when the fight began, ran to the bedroom when she heard Murdoch’s screams and found her on the floor, face up with Sandefur “straddled across” with her leg over Murdoch, hitting her in the face with a hammer. Davis estimated that Sandefur hit Murdoch five or six times while Murdoch tried to fight back, protect her face and push Sandefur away. Davis tried to stop Sandefur and had just managed to grab hold of something, perhaps Sandefur’s hand or the hammer, when a man came up behind her and grabbed her by her neck and told her to let go. He said that he “had it . . . would handle it. He would help.” Davis felt that the man, who she identified at trial as Crummer, was much larger than her and was in a better position to help. So she let go and ran out of the room to look for help.
Donelson testified that she returned to Murdoch’s apartment when she heard screaming from the outside mailbox area of the complex. From the kitchen, Donelson saw Sandefur and Murdoch fighting in the bedroom. Sandefur hit Murdoch with her fist and then pulled out a hammer and started hitting her in the head. At some point, Crummer walked into the apartment and Donelson asked him to help stop the fight. He walked toward the bedroom as if he was going to help. Instead, Crummer took the hammer and began to attack Murdoch. Donelson estimated that Crummer hit Murdoch with the hammer around six times while calling her a “bitch.”
Murdoch testified that she recalled being hit by Crummer at least four times and that she lost consciousness at least twice during the attack. At one point, Murdoch grabbed Crummer’s pant leg and hit him in the groin. Crummer hit her with the hammer on the top back of her head but she did not release her hold. Murdoch was dragged across the room until Crummer hit her with a picture that had been hanging on the wall, at which point she blacked out.
During the attack, Murdoch saw both Sandefur and Crummer take her property. Sandefur ripped jewelry from Murdoch’s body and Crummer took jewelry and other items from the nightstand, jewelry box and dresser. Donelson also saw Sandefur pull gold necklaces from Murdoch’s neck and testified that Crummer took things from the room including a plastic bag and some perfume. Davis testified that, when Sandefur, Crummer and Lewis left the apartment, one of them had the laptop and a chain was dangling from Sandefur’s balled-up hand.
Police were summoned, took statements, arranged for medical assistance and dispatched information about Sandefur’s car. At approximately 7:50 p.m., Concord police stopped Sandefur’s car and appellants were detained. Davis and Donelson were summoned and identified appellants as the attackers.
From the back seat of Sandefur’s car, police recovered a stainless steel construction hammer and a laptop computer, both smudged red. Numerous other items, later identified as having belonged to Murdoch, were found in the car and trunk, including a bottle of perfume, a set of keys, a camcorder, and some jewelry. A white terry cloth towel stained red had been hidden under the driver’s seat. Two gold bracelets with blood on them were recovered from Sandefur’s pants pocket.
At the trial in this case, Sandefur gave a very different version of the relevant events. According to Sandefur, Murdoch was a drug supplier and she, Lewis, Davis and Donelson were all customers. Murdoch agreed to pay $200 for the laptop computer and made an initial payment of $20 in cash and $50 in crack cocaine. The next day, Murdoch refused to pay Lewis the $130 balance. Through the phone, Sandefur heard Murdoch tell Lewis: “I’m not giving that bitch shit.” Sandefur went to Murdoch’s apartment angry that she had been called a derogatory name and that Murdoch had refused to pay the money she owed. Murdoch falsely accused Sandefur of having an affair with Murdoch’s husband and then began to complain about the computer. She claimed the computer was missing a disc, demanded her money back and told Sandefur to take the computer. When Sandefur reached for it, Murdoch hit her hand with a hammer. Then, Davis and Donelson held Sandefur’s arms while Murdoch took her jewelry.
Crummer did not testify at trial.
According to Sandefur, she and Murdoch began to fight with their fists. After Murdoch slipped, Davis tried to hit Sandefur with the hammer. Sandefur ducked and the hammer struck Murdoch in the head. At some point, Sandefur noticed that Crummer, her boyfriend at the time, had entered the room and was struggling with Davis for the hammer. Sandefur then left the apartment with her sister and Crummer followed a few minutes later.
III. DISCUSSION
A. The Amended Information
The first matter we address is the filing of the second amended information which added new prior conviction allegations against appellants after the jury was discharged. Sandefur contends the trial court erred by allowing the post-discharge amendments notwithstanding her objection. Crummer argues that his trial counsel rendered ineffective assistance by consenting to the filing of the amendments against him.
1. Background
The first amended information, filed before the guilt phase of trial, charged appellants with assault with a deadly weapon and second degree robbery and also alleged enhancements for personal infliction of great bodily injury and personal use of a deadly weapon. In addition, the first amended information contained several appellant-specific sentence enhancement allegations.
It was alleged that Crummer had suffered two prior serious felony “strike” convictions within the meaning of section 667, subdivisions (b)-(i) and section 1170.12, and three prior prison convictions within the meaning of section 667.5, subdivision (b) (section 667.5(b)). Sandefur was alleged to have suffered four prior prison convictions within the meaning of section 667.5(b) and to be ineligible for probation pursuant to section 1203, subdivision (e)(4).
Section 667.5(b) states, in relevant part: “ . . . where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison term therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”
On December 17, 2004, the jury found appellants guilty of the charged offenses and that the related enhancements were true. After the verdict was recorded, appellants waived their right to have the jury decide prior prison term allegations and the jury was discharged.
On February 23, 2005, the prosecutor moved to file a second amended information which contained additional appellant-specific sentence enhancement allegations. Specifically, the prosecutor sought to allege that two of Crummer’s prior felony convictions, both of which had previously been alleged as strikes, also constituted prior serious felonies within the meaning of section 667, subdivision (a)(1) (section 667(a)(1)). As to Sandefur, the second amended information alleged two additional, i.e., new, sentence enhancements for prior prison convictions within the meaning of section 667.5(b).
Section 667(a)(1) states: “In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.”
A hearing on the motion to amend the information was held on March 25, 2005. After reviewing the amendments relating to Crummer, the trial court asked Crummer’s attorney whether there was any objection. Defense counsel gave the following response: “Your Honor, on behalf of Mr. Crummer, despite the fact that I think it’s overkill, quite frankly, these are all priors about which I am aware, and I have been provided with police reports of these priors, and I have reviewed the proof of conviction. So I do not have any objections on that basis.”
After reviewing the proposed amendments pertaining to Sandefur, the trial court asked her attorney whether there was any objection. Counsel gave the following response: “Yes. I would object to the addition of the new prior allegations, and I don’t believe Ms. Sandefur has waived her right to a jury trial as to these new allegations. I don’t imagine why she wouldn’t [sic] do so now.” After further discussion, the trial court sustained the objection, stating: “I think under the circumstances the Court is constrained to sustain the objection to the -- Ms. Sandefur’s -- to the Information attempting to bring in the two new crimes . . . . [¶] So the objection will be sustained with respect to those. The People will not be allowed to include those in the amended Information.”
Sandefur’s counsel also objected that the prosecutor sought to amend enhancement allegations that had appeared in the first amended information in order to correct the dates of the prior convictions that had been alleged. The court overruled that objection and that ruling is not challenged on appeal.
The court then indicated it would permit the filing of a modified second amended information which did not include the allegations with respect to Sandefur’s two additional prior prison terms. However, almost immediately, the court became concerned that Crummer had not waived his right to a jury trial with respect to the new enhancement allegations against him and, upon reconsideration, Crummer’s counsel agreed that right had not been waived and lodged an objection.
The court then offered the following solution: “One thing could be done. I -- Under these circumstances I suppose the Court can consider granting the amendments, both these and the ones you have proposed against Ms. Sandefur, the new material, and ask if they want a jury trial with respect to those issues. And if they wish a jury trial with respect to those issues, then we can continue matters and give them the jury trial.” The court reasoned that Sandefur’s objection to the amended information could be mooted if she was arraigned on the new matters and given the opportunity once again to choose either a jury trial or a court trial with respect to the new matters. The court recognized there was an “issue” as to whether the defendants had “a right to have these matters tried by the jury that convicted them of the crime,” but concluded that no such right existed stating: “[S]ince these matters were not before the Court at that time, I see no reason why [that] should be the case. So a new jury would seem to me to be all that they’re entitled to.” Both the prosecutor and Crummer’s counsel expressly agreed with the trial court’s analysis of this matter. Sandefur’s counsel said nothing.
The trial court then allowed the prosecutor to file the second amended information. After the defendants were arraigned on the new allegations and entered not guilty pleas, the court took a break so the defendants could confer with counsel about whether to waive their jury trial rights. After the break, Crummer demanded a jury trial with respect to all the sentence enhancement allegations. The court then asked the following question: “To the extent, Mr. Crummer, then, that you do -- and I don’t believe you necessarily do, but to the extent you have a right to have the prior jury sit in determination of these bifurcated issues, do you waive that right?” Both Crummer and his attorney expressly waived this right.
The court then asked Sandefur’s counsel to state his client’s position. Counsel responded that Sandefur denied the enhancement allegations and wanted a jury trial. The following exchange then occurred:
“[COUNSEL]: . . . As far as the waiver, I’m a little uncomfortable advising my client on that at this point, because I don’t know
“THE COURT: Very well, so you just submit the matter to the Court. No waiver.
“[COUNSEL]: Right.”
The court then turned to the task of scheduling a date for trial of the bifurcated issues. After a short discussion, the court went off the record and conferred with counsel in chambers. Back in open court, the court stated that a date for the trial had been set and then made the following request of both defense counsel, but “especially” of Sandefur’s attorney: “if you have any cases that bear on the issues of whether we can try the bifurcated issues in front of a new jury, as opposed to the prior jury, please just phone them in to Madam Clerk. If you want to file a brief, you’re welcome to do so, but you don’t have [t]o.” After discussing other matters, court was adjourned.
A second jury trial commenced on April 4, 2005. That same day, the jury returned its verdict finding true all of the sentence enhancement allegations presented to it.
Thereafter, Crummer was sentenced to an indeterminate term of 25 years to life for robbery, enhanced by a consecutive four-year term for inflicting great bodily injury and personal use of a deadly weapon, and by three consecutive one-year terms for three section 667.5(b) prior prison terms, and by a consecutive five-year term for one of the two section 667(a)(1) prior serious felony convictions. A separate three strikes sentence of 28 years to life for the assault was stayed pursuant to section 654.
Sandefur was sentenced to a midterm of three years for the robbery, a consecutive three-year enhancement for personal infliction of great bodily injury, a consecutive one-year enhancement for personal use of a deadly weapon and six consecutive one-year enhancements for her six section 667.5(b) prior prison convictions. A three-year midterm sentence for the assault conviction was stayed pursuant to section 654.
2. Controlling principles
A prosecutor may, pursuant to court order, amend an information until the time of sentencing so long as the court has not discharged the jury. (People v. Tindall (2000) 24 Cal.4th 767, 771 (Tindall); People v. Valladoli (1996) 13 Cal.4th 590, 610; see also § 969a [“Whenever it shall be discovered that a pending indictment or information does not charge all prior felonies of which the defendant has been convicted either in this State or elsewhere, said indictment or information may be forthwith amended to charge such prior conviction or convictions . . . .”].) However, the general rule is that an information cannot be amended to allege new prior convictions after the jury has been discharged. (Tindall, supra, 24 Cal.App.4th at p. 772.)
Section 1025, subdivision (b) (section 1025(b)), states that, when a defendant has been charged with having suffered a prior conviction and denies the charge, “the question of whether or not the defendant has suffered the prior conviction shall be tried by the jury that tries the issue upon the plea of not guilty, or in the case of a plea of guilty or nolo contendere, by a jury impaneled for that purpose, or by the court if a jury is waived.” This provision confers a right to have the same jury that decided guilt also determine the truth of alleged prior convictions. (Tindall, supra, 24 Cal.4th at p. 774.) Further, “[b]ecause a jury cannot determine the truth of the prior conviction allegations once it has been discharged [citation], it follows that the information may not be amended to add prior conviction allegations after the jury has been discharged.” (Id. at p. 782.)
Tindall holds that “although the prosecution may amend an information to add alleged prior convictions on the trial court’s order until sentencing [citation], the court may not permit such an amendment if the jury has been discharged, unless the defendant waives or forfeits the right to have the same jury try both guilt and priors. [Citations.]” (24 Cal.4th at p. 776.) Absent waiver or forfeiture, a trial court’s acceptance of an amendment alleging new priors after the jury has been discharged is an act in excess of jurisdiction. (Ibid.) “[A] court’s act in excess of its jurisdiction is valid until set aside, and a party may be precluded from setting it aside, due to waiver, estoppel or the passage of time.” (Id. at p. 776, fn. 6.)
3. Sandefur
As reflected in our background summary, Sandefur waived her right to have the same jury that convicted her decide the four section 667.5(b) prior prison convictions that were alleged in the first amended information. Thereafter, she objected to the filing of the second amended information which alleged two additional prior convictions with respect to her. After the information was filed, Sandefur refused to waive her right to have the jury that convicted her decide the priors.
These facts establish that Sandefur did not waive her section 1025(b) right to have the original jury decide whether she had suffered the two additional section 667.5(b) convictions alleged, for the first time, in the second amended information. Under these circumstances, the trial court exceeded its jurisdiction by permitting the amendment adding new prior allegations against Sandefur after the original jury had been discharged. (Tindall, supra, 24 Cal.4th at p. 776.)
The People offer a different interpretation of the record. From their perspective, Sandefur asserted her right to a jury trial with respect to the new allegations but never actually demanded a trial by the jury that convicted her. Therefore, the People posit, Sandefur “may have declined to expressly waive a right to be tried by the same jury . . ., but she forfeited the right nonetheless by not asserting it.” We are not persuaded. Sandefur’s objection to the filing of the second amended information and her subsequent express refusal to waive her right to the original jury precludes us from finding that she forfeited that right.
Therefore, we will modify the judgment to strike the enhancements imposed against Sandefur for the two section 667.5(b) prior prison terms that were alleged for the first time in the second amended information. However, we will not strike all of the section 667.5(b) enhancements, as Sandefur asks us to do. As discussed above, Sandefur expressly did waive her section 1025(b) right with respect to the priors alleged in the first amended information and nothing that happened thereafter changes this fact.
4. Crummer
As discussed above, Crummer expressly waived his right to have the jury that convicted him decide the truth of the prior conviction allegations alleged in the first amended information. After the jury was discharged and the second amended information was filed, Crummer again waived his right to have the original jury decide the prior allegations, but he took the opportunity to change his mind about whether the priors should be decided by a court or jury and demanded a jury trial.
Crummer contends that his defense counsel rendered ineffective assistance of counsel by failing to advise him to not waive his right to the original jury with respect to the new allegations against him.
To establish ineffective assistance, Crummer must show that his defense counsel’s performance was deficient and that he suffered actual prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 694; People v. Horton (1995) 11 Cal.4th 1068, 1122.) To prove deficient performance, Crummer must overcome a presumption that his trial counsel’s performance came within a wide range of reasonable professional assistance and was the product of sound trial strategy. (Strickland v. Washington, supra, 466 U.S. at pp. 689-690; People v. Hart (1999) 20 Cal.4th 546, 624.) “If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ [Citation.]” (People v. Kipp (1998) 18 Cal.4th 349, 367.)
Crummer contends that his trial counsel’s advisement to waive his right to the original jury resulted from an inexcusable ignorance of Tindall, supra, 24 Cal.4th 767, and that there can be no satisfactory rationale for advising Crummer to waive his section 1025(b) right under these circumstances. Crummer further contends that prejudice was manifest as the waiver resulted in the imposition of an additional five-year term for the section 667(a)(1) enhancement.
Preliminarily, the record before us simply does not support Crummer’s factual contentions that his defense counsel (a) misunderstood Crummer’s section 1025(b) right, (b) misadvised Crummer with respect to that right, or (c) unilaterally made the decision to waive Crummer’s right, to the extent any such right existed. Before the waivers were entered by both Crummer and his attorney, the two discussed the matter off the record and we, of course, are not privy to that discussion.
In any event, it appears that Crummer himself misunderstands Tindall and section 1025(b), both of which limit a prosecutor’s ability to allege new prior convictions after the original jury was discharged. Here, the new allegations in the second amended information that pertained to Crummer did not allege new prior convictions. Instead, the prosecutor alleged that two of the prior convictions that had already been alleged against Crummer constituted serious felonies under section 667(a)(1). The question whether a prior conviction constitutes a serious felony within the meaning of section 667(a) is answered by the trial court, not by a jury. (People v. Kelii (1999) 21 Cal.4th 452, 454.) Therefore, the second amended information did not contain any new allegations against Crummer that would have required a jury determination at all.
The Tindall court expressly declined to address “whether a postdischarge amendment is proper after the guilt phase jury has been discharged when the only contested issue in a defendant’s trial on the alleged prior convictions is an issue to be decided by the court, and not the jury.” (24 Cal.4th at p. 773, fn 4.)
In other words, the filing of the second amended information did not implicate Crummer’s section 1025(b) rights because he had already waived the original jury with respect to the priors alleged in the first amended information and the second amended information did not allege any new prior convictions with respect to him. Crummer cannot establish that his trial counsel performed deficiently by failing to assert a right Crummer simply did not have. Further, by waiving this non-existent right, Crummer obtained a second opportunity to obtain a jury determination with respect to the question whether he had, indeed, suffered the prior convictions.
In his reply brief, Crummer contends that even if Tindall did not squarely apply to him because the new allegations pertained to previously alleged priors and, therefore, required only a court determination, a diligent advocate would not have advised him to waive his right to the original jury when, if for no other reason, refusing to waive would have preserved the issue for appellate review.
If Crummer had joined Sandefur in refusing to waive the original jury, the court may have been motivated to give this matter the consideration it actually deserved and have familiarized itself with Tindall. Had that happened, the court would have realized that Crummer was not entitled to a determination from any jury as to whether he had suffered the alleged priors because he had previously waived that right and the second amended information did not allege that Crummer had suffered any additional prior convictions.
Crummer has failed to carry his burden of establishing that his defense counsel’s performance was deficient. Therefore, we reject his ineffective assistance claim.
B. Sandefur’s Trial Testimony
Crummer contends that the trial court committed prejudicial error by permitting Sandefur to testify at trial that she thought Crummer would receive a longer prison term than she would receive.
1. Background
While under direct examination, Sandefur testified that, after she was arrested in this case, she wrote letters to both Crummer and Crummer’s mother in which she made untrue statements. For example, in a letter to Crummer, Sandefur falsely stated that she was pregnant because Crummer had not responded to prior letters and she was hoping the lie would keep their relationship going. She also wrote to Crummer’s mother that he had not been “involved” in the incident because she did not want Crummer to go to “jail for awhile,” and because he had protected her during the incident and she did not want him to get in trouble for that. Subsequently, during redirect examination, Sandefur testified that when she wrote the letters to Crummer and his mother she was “intending to take the fall, because [she] believed he would be spending substantially more time in jail.”
This testimony, allowed over Crummer’s objection, was immediately followed by this admonition from the court: “Now, ladies and gentlemen, with respect to that last question and answer, it’s being admitted, the response to the question is being admitted simply as to defendant’s state of mind. You are not to speculate as to whether or, if so, why defendant may have been facing a substantially longer sentence.”
2. Analysis
According to Crummer, Sandefur’s testimony regarding her belief that he faced a longer sentence was “highly inflammatory because it defined him as a dangerous repeat offender,” and because it essentially told the jury that Crummer had a least one prior strike conviction. Citing People v. Calderon (1994) 9 Cal.4th 69 (Calderon), Crummer contends that admitting this evidence was an abuse of discretion and reversible error.
In Calderon, our Supreme Court held that “the denial of a defendant's timely request to bifurcate the determination of the truth of a prior conviction allegation from the determination of the defendant's guilt is an abuse of discretion where admitting, for purposes of sentence enhancement, evidence of an alleged prior conviction during the trial of the currently charged offense would pose a substantial risk of undue prejudice to the defendant.” (Calderon, supra, 9 Cal.4th at pp. 77-78.) In the present case, the determination of the truth of prior conviction allegations was bifurcated from the determination of Crummer’s guilt. Therefore, Calderon is not on point.
Crummer argues that the Calderon court recognized that evidence pertaining to crimes other than the charged offense should be admitted with caution because of the serious risk the jury will conclude from it that the defendant has a criminal disposition. (Calderon, supra, 9 Cal.4th at p. 75.) Although we accept this proposition, Calderon does not properly frame the issue before us which is purely and evidentiary one.
“Broadly speaking, an appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence. [Citations.] Speaking more particularly, it examines for abuse of discretion a decision on admissibility that turns on the relevance of the evidence in question. [Citations.] That is because it so examines the underlying determination as to relevance itself. [Citations.] Evidence is relevant if it has any tendency in reason to prove a disputed material fact. [Citation.]” (People v. Waidla (2000) 22 Cal.4th 690, 717-718.)
Here, Crummer does not dispute that the challenged evidence was relevant because it was probative of Sandefur’s state of mind when she wrote the letters which contained incriminating statements. The evidence was important to Sandefur’s defense because it explained why she made the prior statements which were inconsistent with her defense at trial.
Whether, if convicted, Crummer actually faced a longer prison term if convicted than Sandefur certainly was not relevant. However, the jury was expressly admonished not to speculate as to that matter. Further, the court carefully limited Sandefur’s testimony on this matter to ensure that there would be no reference to Crummer’s criminal record. In light of this fact and of the very brief testimony that was permitted, we simply are not persuaded by Crummer’s argument that the jury must have interpreted Sandefur’s statement as a disclosure that Crummer had already suffered one or more strike convictions.
Under these circumstances we find the trial court did not abuse its discretion by permitting Sandefur to briefly explain why she had made statements in letters she had written that were inconsistent with her testimony at trial.
C. Crummer’s Sentence
Crummer contends the trial court made two sentencing errors which resulted in his sentence being two years too long. The People concede the errors but maintain the sentence is only one year too long. The People are correct.
As noted above, Crummer’s sentence includes three consecutive one-year terms for three section 667.5(b) prior convictions. The trial court imposed these enhancements for two June 24, 1992, robbery convictions and one August 29, 1996, burglary conviction.
The record shows that on June 24, 1992, Crummer pled guilty to two counts of robbery and was sentenced to a single four-year prison term. However, to qualify as a section 667.5(b) prior, a prior conviction must be a felony for which a separate prison term was imposed and served within five years of the commission of the current offense. (See ante, fn.3.) Therefore, the trial court could not properly impose two section 667.5(b) enhancements for the two June 24, 1992, convictions.
The trial court also found that both of the June 24, 1992, robberies constituted prior serious felonies under section 667(a)(1) and then imposed a single five-year enhancement for one of these prior serious felonies. Using one of the June 24, 1992, convictions to impose both a section 667.5(b) enhancement and a section 667(a)(1) enhancement was error. As the People concede, the same prior conviction cannot be the basis for a one-year enhancement under section 667.5(b) and a five-year enhancement under section 667(a)(1). (People v. Jones (1993) 5 Cal.4th 1142, 1152-1153 (Jones); see also People v. Harris (1994) 22 Cal.App.4th 1575, 1584-1585 [applying Jones].)
Both of these sentencing errors are remedied by striking one of the one-year section 667.5(b) enhancements imposed for one of the two June 24, 1992, robberies. Once the one-year enhancement is stricken, there are no longer two separate section 667.5(b) enhancements for felonies that resulted in a single prison term, and there is no single felony that was used to impose both a section 667.5(b) enhancement and a section 667(a)(1) enhancement. Therefore, Crummer’s sentence should be reduced by only one year, not two.
At oral argument before this court, Crummer’s counsel argued for the first time that the trial court was not authorized to impose one section 667(a)(1) enhancement for one of the June 24, 1992 felony convictions and one section 667.5(b) enhancement for the other June 24, 1992 felony conviction because both convictions resulted in only a single prior prison term. We reject this distinctly new argument which is not supported by any authority that has been supplied to us. In both Jones, supra, 5 Cal.4th 1142, and People v. Harris, supra, 22 Cal.App.4th 1575, the sentencing court erred by imposing enhancements under section 667(a) and 667.5 based on the same prior felony conviction. Here, by contrast, each of these two enhancements is supported by a separate felony conviction.
D. Crummer’s Writ Petition
Crummer has filed a pro per petition for writ of habeas corpus pursuant to which he seeks relief from the judgment on several grounds all of which appear to be premised on a factual claim that he was prevented from presenting exculpatory evidence at trial.
“Our state Constitution guarantees that a person improperly deprived of his or her liberty has the right to petition for a writ of habeas corpus. [Citations.] Because a petition for a writ of habeas corpus seeks to collaterally attack a presumptively final criminal judgment, the petitioner bears a heavy burden initially to plead sufficient grounds for relief, and then later to prove them. ‘For purposes of collateral attack, all presumptions favor the truth, accuracy, and fairness of the conviction and sentence; defendant thus must undertake the burden of overturning them. Society's interest in the finality of criminal proceedings so demands, and due process is not thereby offended.’ [Citation.]” (People v. Duvall (1995) 9 Cal.4th 464, 474 (Duvall).)
A petition for writ of habeas corpus “should both (i) state fully and with particularity the facts on which relief is sought [citations], as well as (ii) include copies of reasonably available documentary evidence supporting the claim, including pertinent portions of trial transcripts and affidavits or declarations. [Citations.] ‘Conclusory allegations made without any explanation of the basis for the allegations do not warrant relief, let alone an evidentiary hearing.’ [Citation.] We presume the regularity of proceedings that resulted in a final judgment [citation], and, as stated above, the burden is on the petitioner to establish grounds for his release. [Citations.]” (Duvall, supra, 9 Cal.4th at pp. 474-475.)
In order to establish a prima facie case for relief, the petitioner must allege facts which if true would entitle him or her to relief. (Duvall, supra, 9 Cal.4th at p. 475.) If no prima facie case for relief is stated, we will summarily deny the petition. (Ibid.)
In the present case, Crummer purports to advance five grounds for relief, although he only summarily recites those grounds and makes no effort to independently support or explain any one of them. Those five grounds are: (1) the trial court erroneously denied Crummer’s motion for new trial, (2) the prosecutor withheld exculpatory evidence; (3) the prosecutor committed misconduct, (4) the trial court erred by giving an exculpatory witness Fifth Amendment protection and (5) Crummer’s defense counsel rendered ineffective assistance.
As a preliminary matter, we note that all of these contentions relate to matters within the record on appeal and could have been raised on appeal. “Proper appellate procedure . . . demands that, absent strong justification, issues that could be raised on appeal must initially be so presented, and not on habeas corpus in the first instance. Accordingly, an unjustified failure to present an issue on appeal will generally preclude its consideration in a postconviction petition for a writ of habeas corpus. [Citation.] ‘[H]abeas corpus cannot serve as a substitute for an appeal, and, in the absence of special circumstances constituting an excuse for failure to employ that remedy, the writ will not lie where the claimed errors could have been, but were not, raised upon a timely appeal from a judgment . . . .’ [Citations.]” (In re Harris (1993) 5 Cal.4th 813, 829.)
In this case, Crummer’s petition states that his appellate counsel refused to raise any of the claims he now asserts via his petition. Attached to Crummer’s petition are several letters his appellate counsel sent to him which substantially confirm Crummer’s contention. However, those letters supply sound explanations as to why these issues were not raised on appeal. Nevertheless, we have independently reviewed the evidence presented in support of the petition and find that Crummer has failed to establish a prima facie case for relief.
All five grounds for relief that are alleged in the petition are supported by a single statement of supporting facts. According to that statement, after Crummer was held to answer for the charges against him, he and his defense counsel learned that Pandora Lewis, Sandefur’s sister, could be a useful witness for them but they were unable to serve her with a subpoena. After Crummer was convicted, he sought a new trial “with regard to the suppression and witholding [sic] of the witness (Ms. P. Lewis) and/or the exculpatory statements made by herself.” According to Crummer, the court took evidence, including testimony from Lewis “with specific instructions on the manner of how she would testify.” Thereafter, Crummer alleges, the court found there was exculpatory evidence by the witness, but “excused” the People’s actions and found that Crummer’s trial counsel had been ineffective.
Some of these factual allegations are flatly contradicted by the evidence attached to Crummer’s petition. For example, the trial court did not characterize statements Lewis had made as exculpatory evidence, and it did not find that the prosecutor withheld evidence or committed any kind of misconduct or that Crummer’s defense counsel was ineffective. Furthermore, virtually all of Crummer’s assertions are “‘[c]onclusory allegations made without any explanation of the basis for the allegations [and, therefore,] do not warrant relief, let alone an evidentiary hearing.’” (Duvall, supra, 9 Cal.4th at p. 474.) In short, Crummer has failed to state a prima facie case for relief.
During a hearing on Crummer’s new trial motion, the court noted for the record that, after the April 23, 2003, incident, Pandora Lewis had made a statement to police to the effect that she did not see Crummer commit an assault or robbery. In denying Crummer’s motion for new trial, the court did not characterize Lewis’s prior statement as exculpatory evidence. The court did, however, acknowledge there were valid tactical reasons why Crummer’s defense counsel may have elected not to pursue Lewis as a defense witness.
IV. DISPOSITION
The findings that Maunice Sandefur suffered prior prison term convictions on September 21, 1994, and November 22, 1999, as alleged for the first time in the second amended information filed on March 25, 2005, are stricken. Sandefur’s sentence is modified to strike the two one-year section 667.5(b) enhancements imposed for these two prior convictions. With a reduction of two years, Sandefur’s sentence is now 11 years.
Crummer’s sentence is modified to strike one of the one-year section 667.5(b) enhancements imposed for one of the June 24, 1992, convictions. With this reduction of one year, Crummer’s sentence is now 36 years to life.
The trial court is directed to prepare amended abstracts of judgment reflecting these modifications and to forward certified copies to the Department of Corrections. As modified, the judgment is affirmed. Crummer’s petition for writ of habeas corpus is denied.
We concur: Kline, P.J., Lambden, J.