Opinion
B162324.
11-25-2003
THE PEOPLE, Plaintiff and Respondent, v. DARRYL SIGMON et al., Defendants and Appellants.
Edward H. Schulman, under appointment by the Court of Appeal, for Defendant and Appellant Darryl Sigmon. Alexander L. Griggs, under appointment by the Court of Appeal, for Defendant and Appellant Herbert Lawrence. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
Darryl Sigmon appeals from the judgment entered upon his conviction by jury of second degree robbery (Pen. Code, § 211), and Herbert Lawrence appeals from the judgment entered upon his conviction by jury of attempted second degree robbery (Pen. Code, §§ 664/211). Sigmon was found to have sustained three prior serious felony convictions within the meaning of the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and a prior serious felony conviction within the meaning of section 667, subdivision (a)(1), and he was sentenced to 30 years to life in prison. Lawrence was sentenced to two years in prison.
Unless otherwise specified, all further statutory references are to the Penal Code.
Sigmon contends that his waiver of jury trial on the prior conviction allegations was invalid because it was given pursuant to California law which unconstitutionally limits his right to jury in violation of Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). Lawrence and Sigmon each contends that the trial court prejudicially erred in admitting testimony concerning threats made against a testifying eyewitness by an unknown individual. Lawrence adopts all arguments raised by Sigmon relating to this issue, and Sigmon joins in any arguments raised by Lawrence that may benefit his claims.
FACTS
The evidence established that late on the evening of June 30, 2002, appellants approached Felix Rodriguez as he was walking down Florence Avenue toward 10th Street. Rodriguez testified that Lawrence stood in front of him as Sigmon held his arms from behind, and they dragged him to the side of a building on the corner of Florence and 10th. They repeatedly demanded his money and threatened to kill him. As Sigmon continued to hold his arms, Lawrence went through his pockets, pulled out his wallet from his back pants pocket, looked through it, and removed his papers. At that point, police officers arrived and appellants were arrested.
Rodriguez, who had consumed six bottles of beer at a barbecue that afternoon and was nervous and confused at the time of the robbery, did not see whether Lawrence removed the money from the wallet, but when one of the officers returned his wallet to him, the money was not there. Rodriguez testified that he was not able to see which appellant took his wallet from his pocket but assumed it was the person who had not been holding his arms.
The incident was observed by 15-year-old Jose C. and his 17-year-old sister, Vanessa C., who lived in a front ground-floor apartment in the building on the corner where the robbery occurred. Jose heard a noise outside and looked out the window. He opened the window and heard voices demanding money and saying, "Im gonna kill you." Although it was dark, he could see by the light of a large sign on a dry cleaning business across the street. He saw three men, two Blacks and one Hispanic, standing near the wall of his building. Sigmon was standing in front of Rodriguez and Lawrence stood behind him. Jose saw Sigmon take Rodriguezs wallet from his back pocket and look through it, then saw Sigmon hand the wallet to Lawrence. He did not see Sigmon remove anything and did not see what Lawrence did with the wallet. He then saw the police arrive.
Vanessa C. heard three voices arguing and heard someone say, "Give me your money. Do you want to die?" She looked out her open window. By the lights from the dry cleaner across the street, she saw three men a few inches from her window. Sigmon started on Rodriguezs side and walked behind him, and Lawrence was in front of Rodriguez. Sigmon went through Rodriguezs pockets and Lawrence held Rodriguezs arm as they demanded his money. Sigmon pulled a wallet from Rodriguezs pants pocket, looked through it, and gave it to Lawrence, who also went through it and then took something out and put it into his own pocket. Vanessa called 911 and told the operator that two Black men were trying to rob a Hispanic man outside her residence. The police arrived while she was still on the line with the operator. The tape of the 911 call was played before the jury. Vanessa indicated that she was nervous about testifying.
Vanessa further testified that the day before her appearance in court, she was standing outside her residence when a man she had never seen before told her, "You better not go to court" and "You know what Im talking about." She was not involved in any court proceedings other than this one.
When Los Angeles Police Officer Michael Saghera and his partner arrived at the scene, Saghera saw appellants standing on either side of Rodriguez near the building on the corner. Appellants were detained. Saghera observed that Rodriguez had been drinking, but he was not "fall-down drunk," he knew what was occurring, and he answered the officers questions. Rodriguez stated that both appellants initially grabbed him and that Sigmon took his wallet while Lawrence held his hand behind his back and threatened to "cut" him. He stated that Sigmon took money from the wallet and then gave the wallet back to him.
In defense, Lawrence denied robbing Rodriguez or helping Sigmon rob Rodriguez. He testified that as he left a bar and strip club across the street from the scene of the robbery, he saw Sigmon and Rodriguez on the other side of the street. Sigmon called to him and told him that Rodriguez was looking for Tiffany because he wanted oral sex. Lawrence knew that Tiffany was "handling a customer" in the stairwell of the building where the robbery occurred, and he whistled to indicate to Tiffany that someone was waiting for her. She indicated that they should wait five minutes.
Sigmon told Lawrence that Sigmon was supposed to get $10 as a finders fee for finding Tiffany for Rodriguez. Lawrence then saw Sigmon and Rodriguez arguing over money and wrestling with each other. Sigmon was saying, "Give me my money." Lawrence tried to separate the two men, "to kind of help diffuse [sic] whatever was going on . . . [and because] we dont really like trouble on that corner over there." He saw a wallet in Sigmons hand, although he did not see Sigmon take any money from it. Sigmon gave the wallet back to Rodriguez. Lawrence yelled at the two men about being on the corner. He held Rodriguez because Rodriguez seemed frightened and was stumbling, and he was going to walk Rodriguez to Crenshaw, to protect him, when the police arrived.
One of the officers who arrived at the scene testified that a search of Lawrence did not reveal any property belonging to Rodriguez. Twenty-three dollars was found on Sigmon and two dollars was booked to Lawrence.
Sigmon did not present any evidence.
DISCUSSION
I. Evidence of the threat to Vanessa C. was properly admitted.
On the morning after the jury was selected, the prosecutor advised the trial court and defense counsel that Vanessa C. had received a threat the previous evening and that the prosecutor wanted to question Vanessa "only on the fact that that might be a basis in which she might be hesitant in testifying or to explain her demeanor in testifying." Lawrences counsel stated that she wanted a written report, objected that the matter was prejudicial because it would be assumed that both appellants had something to do with it, and added, "The other thing is that we dont know what [Vanessas] demeanor is going to be at this time, so —" The trial court, citing People v. Olguin (1994) 31 Cal.App.4th 1355 (Olguin), stated that even if the threat did not preclude the witness from testifying, the fact that she came in to testify despite the threats went to her credibility. The trial court further indicated that if the evidence were to be admitted, it would give the jury an appropriate admonition.
Before Vanessa testified, Lawrences counsel objected on due process and Evidence Code section 352 grounds to the admission of the evidence that Vanessa had received a threat the day before. Counsel argued that the evidence was very prejudicial and there was no information as to who instigated the threat. The trial court overruled the objection, stating that the evidence was admissible to show the witnesss demeanor and that, with an admonition that it was not attributable to either appellant, it would not be unduly prejudicial. Immediately after Vanessa testified that she had received the threat, the trial court admonished the jury as follows: "Ladies and gentlemen, this statement that was just testified to by Ms. [C.] about not going to court, you know what Im talking about, that statement is not attributed to Mr. Sigmon, its not attributed to Mr. Lawrence, and its not to be held against either of those people. The only reason its admitted is to show any state of mind, any fear or any demeanor that this witness may have while testifying. Its not attributable to Mr. Sigmon or to Mr. Lawrence." In instructing the jury at the conclusion of the case, the trial court admonished the jury pursuant to CALJIC No. 2.09 that certain evidence had been admitted for a limited purpose and that, at the time it was admitted, the jury had been instructed that the evidence could only be considered for the limited purpose for which it was admitted.
Sigmon and Lawrence contend that Vanessas testimony about the threats she received was irrelevant to her credibility because there was no indication that her testimony was affected by the threats, and that the prejudicial effect of the testimony, despite the trial courts admonition to the jury, requires reversal. This contention lacks merit.
We reject respondents claim that the objection was not brought on the ground now raised, since Lawrences counsel raised the issue and it was addressed by the trial court. However, Sigmons counsel did not join in the objection, and thus the issue is waived as to him. (People v. Mitcham (1992) 1 Cal.4th 1027, 1048.) Sigmon asserts that any failure to object is excused because Lawrences counsels claim brought the matter to the trial courts attention and the trial courts ruling rendered any further objection futile, and because the admonition given by the trial court failed to cure the harm. Even were we to find that the issue was preserved as to both appellants, their claims must fail.
Evidence Code section 780 provides that, except as otherwise provided by statute, the jury may consider "any matter that has any tendency in reason to prove or disprove the truthfulness of [a witnesss] testimony at the hearing" in determining his credibility. Decisional authority permits the introduction of evidence of threats to a testifying witness, even where the threats cannot be connected to the defendant, in order to establish the credibility of the witness. (See, e.g., People v. Sanchez (1997) 58 Cal.App.4th 1435, 1450; Olguin, supra, 31 Cal.App.4th at pp. 1368-1369.) Appellants argue that evidence of threats is relevant only in circumstances such as those in which the witness has recanted a prior statement, has compromised his or her testimony, or has indicated reluctance to testify or to identify the defendant in court. While the cases cited by appellants generally involve situations in which those circumstances were present, the rationale underlying the admissibility of evidence of threats is not limited to such circumstances.
See, e.g., People v. Williams (1997) 16 Cal.4th 153, 211; Olguin, supra, 31 Cal.App.4th at p. 1368; People v. Gutierrez (1994) 23 Cal.App.4th 1576, 1586-1588.
In Olguin, the court explained, "A witness who testifies despite fear of recrimination of any kind by anyone is more credible because of his or her personal stake in the testimony. Just as the fact a witness expects to receive something in exchange for testimony may be considered in evaluating his or her credibility [citation], the fact a witness is testifying despite fear of recrimination is important to fully evaluating his or her credibility. For this purpose, it matters not the source of the threat. . . . [¶] Regardless of its source, the jury would be entitled to evaluate the witnesss testimony knowing it was given under such circumstances. And they would be entitled to know not just that the witness was afraid, but also, within the limits of Evidence Code section 352, those facts which would enable them to evaluate the witnesss fear." (Olguin, supra, 31 Cal.App.4th at pp. 1368-1369.) While the witness who reported threats in Olguin admitted that he had left the scene of the shooting and had not voluntarily provided information to the police, explaining that he did not want anything to happen to his house or his family, there was no apparent reason to question the credibility of the witness reporting the threat in People v. Lybrand (1981) 115 Cal.App.3d 1, where the court stated that "[e]vidence of threats to a witness is generally admissible on either or both of two theories. First, it is relevant on the question of the witnesss credibility. . . ." (Id. at p. 11; see also People v. Green (1980) 27 Cal.3d 1, 20, disapproved on other grounds in People v. Hall (1986) 41 Cal.3d 826, 834, fn. 3.)
Even if evidence of threats were deemed irrelevant absent some issue as to the witnesss credibility, the evidence here was relevant for that purpose. In People v. Avalos (1984) 37 Cal.3d 216, the Supreme Court held that admission of evidence that a witness was afraid to testify because of "the importance of the event" was relevant to the jurys assessment of her credibility because she hesitated before identifying the defendant in the courtroom. (Id. at p. 232.) The witness otherwise displayed no reluctance in testifying or in identifying the defendant. Here, Vanessa stated that she was nervous about testifying, although she did not at that point say why. As in Avalos, whether or not Vanessa expressed any verbal reluctance to testify and whether or not her testimony was inconsistent with prior statements, the evidence that she came to court to testify despite having been threatened was relevant to the jurys assessment of her credibility as a witness.
Shortly after the commencement of her testimony, the prosecutor asked, "And when you looked outside your window, what did you see, if anything?" Vanessa stated, "I seen two males, two Black males telling a Hispanic male to give them their money." At this point, the prosecutor asked, "Okay. Are you nervous about testifying?" Vanessa replied, "Yes." There is no indication of what prompted the prosecutor to ask whether she was nervous, although the reason for the inquiry, if any, may well have been apparent to the jury. She was questioned about the threat later in her testimony.
The introduction of the threat evidence did not violate Evidence Code section 352. "Prejudice" within the meaning of Evidence Code section 352 refers "to evidence that `"uniquely tends to evoke an emotional bias against defendant" without regard to its relevance on material issues. [Citations.]" (People v. Kipp (2001) 26 Cal.4th 1100, 1121.) Nothing in Vanessas testimony suggested that either appellant was connected with the making of the threat, and the trial court expressly admonished the jury that the threat was not attributed to either defendant and was not to be held against either of them. As the trial court indicated, this certainly sufficed to eliminate any potential prejudice. (See People v. Avalos, supra, 37 Cal.3d at p. 232.) The evidence of the threat from an unknown individual was properly admitted.
Evidence Code section 352 provides, "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
Finally, even were we to hold that the evidence of the threat to Vanessa was erroneously admitted, such error would be utterly nonprejudicial. The evidence against appellants was overwhelming, and the trial courts immediate admonition to the jury dispelled any prejudice inherent in the threat evidence. (People v. Sapp (2003) 31 Cal.4th 240, 281, mod. 31 Cal.4th 1025c; People v. Moran (1974) 39 Cal.App.3d 398, 414.)
II. Sigmon was not denied any constitutional rights when he waived jury trial on his prior conviction allegations, and his waiver was not rendered unknowing or unintelligent by virtue of the California statutory and decisional scheme.
The information alleged within the meaning of the three strikes law that Sigmon had suffered a prior conviction of robbery and two prior convictions of assault with a firearm, further alleging that he had suffered these three convictions in the same case and on the same date within the meaning of section 667, subdivision (a)(1). The trial of Sigmons prior conviction allegations was bifurcated from the trial on the robbery charges. When the trial court asked Sigmons counsel if Sigmon intended to waive jury trial on the priors, counsel conferred with Sigmon and reported that Sigmon wished to waive jury. Sigmon was then advised of his right to jury trial on the prior conviction allegations and waived jury trial. The trial court found the allegations true.
Sigmon contends that the trial courts findings on the allegations must be vacated because his jury waiver was uninformed and not knowing and intelligent, since it resulted from his trial counsels understanding and advice to him based upon a statutory scheme and decisional law that violate Apprendi and his federal and state constitutional guarantees of due process. This claim is without merit.
Section 1025, subdivision (c), as amended in 1997, provides that "the question of whether the defendant is the person who has suffered the prior conviction shall be tried by the court without a jury." In People v. Kelii ( 1999) 21 Cal.4th 452, 456-457 (Kelii), the California Supreme Court held that the trial court, not the jury, is to determine whether a prior conviction constituted a serious felony.
In 2000, the United States Supreme Court in Apprendi held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490.) Although Apprendi thus expressly excepted prior convictions from its holding, Sigmon claims that the opinion in Apprendi contains language indicating that its holding may also be applied to prior convictions.
In McMillan v. Pennsylvania (1986) 477 U.S. 79 (McMillan ), the Supreme Court considered a law that required the imposition of a five-year minimum prison term, which did not exceed the statutory maximum for any of the covered crimes, after a finding by the trial court that the defendant possessed a firearm. (Id. at pp. 81-82.) The Supreme Court held that this involved a sentencing factor that did not have to be proved to a jury beyond a reasonable doubt. (Id. at pp. 85-86, 89-90.) In Apprendi, the Supreme Court stated, "We do not overrule McMillan. We limit its holding to cases that do not involve the imposition of a sentence more severe than the statutory maximum for the offense established by the jurys verdict — a limitation identified in the McMillan opinion itself." (Apprendi, supra, 530 U.S. at p. 487, fn. 13.) The court reserved the issue of whether stare decisis precluded its reconsideration of McMillan. (Ibid .)
In Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres), the Supreme Court held that a sentence enhancement allegation based on prior felony convictions need not be set forth in an indictment because this was merely a sentencing factor and not a criminal offense. (Id. at p. 235.) In Apprendi, the court stated, "Even though it is arguable that Almendarez-Torres was incorrectly decided, and that a logical application of our reasoning today should apply if the recidivist issue were contested, . . . we need not revisit it for purposes of our decision today to treat the case as a narrow exception to the general rule we recalled at the outset. Given its unique facts, it surely does not warrant rejection of the otherwise uniform course of decision during the entire history of our jurisprudence. " (Apprendi, supra, 530 U.S. at pp. 489-490, fn. omitted.) Sigmon also points out that Justice Thomas stated in his concurring opinion in Apprendi that he had erred in Almendarez-Torres in finding no right to jury trial on prior convictions.
In Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 153, 155, Division Three of this court stated that Apprendi did not overrule either McMillan or Almendariz-Torres. In People v. Thomas (2001) 91 Cal.App.4th 212, 222, Division Five of this court held that Apprendi did not overrule Almendariz-Torres. We agree with these determinations. We further conclude that nothing in Ring v. Arizona (2002) 536 U.S. 584 suggests that the United States Supreme Court has undercut its clear statement in Apprendi that prior convictions are excepted from the Apprendi rule.
We are further guided by the decision of the California Supreme Court in People v. Epps (2001) 25 Cal.4th 19 (Epps). The court in Epps observed that the right to jury trial on prior conviction allegations is statutory, not constitutional, and concluded that section 1025, as amended, still provides a limited right to jury trial on prior conviction allegations. (Id . at pp. 25-27.) The court did not undermine its holding in Kelii, however, and reiterated that the trial court, not the jury, is to determine whether a prior conviction is a serious felony for purposes of the three strikes law. (Epps , supra, at pp. 23-24.) In response to the claim that, after Apprendi, a defendant has the right to trial by jury on the issue of whether a prior conviction is a serious felony, the court stated, "We do not now decide how Apprendi would apply were we faced with a situation like that at issue in Kelii, where some fact needed to be proved regarding the circumstances of the prior conviction — such as whether a prior burglary was residential — in order to establish that the conviction is a serious felony." (Epps , supra, at p. 28.) The court pointed out that "Apprendi . . . reaffirms that defendants have no right to a jury trial of `the fact of a prior conviction [citation]," and that in the case before it, "only the bare fact of the prior conviction was at issue, because the prior conviction (kidnapping) was a serious felony by definition under section 1192.7, subdivision (c)(20)." (Epps, supra, at p. 28; see People v. Collins (2001) 26 Cal.4th 297, 313, fn. 5; People v. Sengpadychith (2001) 26 Cal.4th 316, 326.)
Here, as in Epps, there was nothing other than "the bare fact of the prior conviction" which had to be proved to establish that Sigmons prior convictions of robbery and assault with a firearm were serious felonies. (Epps, supra, 25 Cal.4th at pp. 23, 28; In re Taylor (2001) 88 Cal.App.4th 1100, 1109; see § 1192.7, subd. (c)(19), (31).) Furthermore, Apprendi does not give a defendant the right to trial by jury on the issue of identity. (People v. Garcia (2003) 107 Cal.App.4th 1159, 1165.) Since the right to jury trial on a prior conviction allegation is statutory and, pursuant to Epps, whose authority is binding on us (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), proof of the fact of a prior conviction in this case is not within the holding of Apprendi, we reject Sigmons contention.
DISPOSITION
The judgments are affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.