Summary
In People v. Barnes (Feb. 10, 2012, E050704 [nonpub. opn.]) this court noted that defendant had been convicted by a jury of three counts of robbery, during which he used a firearm, and two counts of being an ex-felon in possession of a firearm.
Summary of this case from People v. BarnesOpinion
E050704
02-10-2012
THE PEOPLE, Plaintiff and Respondent, v. JOHNNIE LEE BARNES, Defendant and Appellant.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Scott C. Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF127702)
OPINION
APPEAL from the Superior Court of Riverside County. Sherrill A. Ellsworth, Judge. Affirmed in part; reversed in part and remanded with directions.
Catherine White, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted defendant, Johnnie Barnes, of three counts of robbery (Pen. Code, § 211) during which he used a firearm (§ 12022.53, subd. (b)) and two counts of possessing a firearm by an ex-felon (§ 12021, subd. (a)(1)). In bifurcated proceedings, the trial court found that defendant had suffered two serious prior convictions and two prior strike convictions (§§ 667, subds. (a), (c) & (e)). He was sentenced to prison for two terms of 25 years to life plus 23 years, four months, and appeals, claiming the trial court erroneously denied his motion to enter a plea of guilty by reason of insanity and insufficient evidence supports the trial court's finding as to one of his prior convictions. We reject his first contention and agree with the second. Therefore, we affirm all his convictions and true findings, save the two concerning his 1997 prior and remand the matter to permit the People to retry defendant on that prior: if they elect not to, the trial court must resentence defendant.
All further statutory references are to the Penal Code unless otherwise indicated.
The facts of this case are not relevant to this appeal.
ISSUES AND DISCUSSION
1. Denial of Defendant's Motion to Enter a Plea of Not Guilty by Reason of Insanity
The charged offenses were alleged to have taken place in December 2005. Following a preliminary hearing, defendant was arraigned on the information on August 14, 2006 and he pled not guilty. Defendant was continuously represented by the same deputy public defender until July 2, 2008, then was represented by two other deputy public defenders until August 28, 2008, when he began being represented by a fourth deputy public defender, who remained his attorney of record until September 25, 2009. The deputy public defender, who represented defendant continuously thereafter and at trial, began representing him on September 25, 2009. On February 11, 2010, both parties announced that they were ready for trial (a second time, for defense counsel), motions in limine were heard and determined, potential jurors were time qualified, defendant was arraigned on an amended Information and he entered pleas of not guilty. On the next court day, February 18, 2010, the trial court was hearing potential juror hardships when defense counsel announced that defendant wanted to plead, in addition to his already entered pleas of not guilty, not guilty by reason of insanity (hereinafter, NGI plea). Counsel added that entering this plea would "cause a substantial delay because . . . two doctors need to be appointed to interview [defendant], review the reports and render an opinion as to whether or not he was sane at the time of the offense[s]." The prosecutor agreed that entering such a plea would cause a delay from his point of view because he was not prepared to have any doctors testify during his case-in-chief. The trial court asked if there had been any evaluations during the past. Defense counsel responded that defendant had, several times, been evaluated under section 1368 with varying results, but no one had determined defendant's sanity at the time of the crimes. The trial court ruled, "I will allow for [defendant] to make a record, but we are proceeding today without that as a defense. . . . [T]here's already been an evaluation that has occurred that this was considered by other bench officers, but this is ready to go to trial and . . . we will be proceeding at this time without further appointment of physicians." Defense counsel pointed out that while doctors had determined in the past whether defendant was competent to stand trial, none "of those doctors or any bench officer has to this point considered the question . . . whether . . . at the time of the offense he was sane." The prosecutor pointed out that the first set of evaluations under section 1368 were done in February 2006, within three months of the crimes. (One evaluator concluded that he was competent to stand trial, the other reached the opposite conclusion.) Neither specifically addressed his mental state at the time of the crimes. The trial court went on to rule, "The problem I have is that it's so late in the trial. Certainly there was evaluation that occurred. Yes, that evaluation wasn't specifically for the purpose of entering that plea. We are on the second day of selecting a jury. We have started to time qualify. We've not started voir dire yet, however we have spent two days in this. At this time I will not be sending this out for an evaluation and will be having you go forward . . . ."
In fact, the first report was done February 2, 2006 and the second on March 8, 2006.
Defendant acknowledges that the trial court's decision to not permit a defendant to enter a plea of not guilty by reason of insanity because good cause for the failure to enter it previously is reviewed for abuse of discretion. (People v. Natale (1962) 199 Cal.App.2d 153, 157.) However, when the trial court fails to exercise its discretion, reversible error occurs. (People v. Herrera (1980) 104 Cal.App.3d 167, 172.) Discretion is not exercised when a trial court does not give defendant an opportunity to present good cause. (People v. Boyd (1971) 16 Cal.App.3d 901, 908.) Defendant here contends that the trial court's words did not indicate an awareness that it had the discretion to allow him to enter an NGI plea upon a showing of good cause. We disagree. Moreover, and contrary to defendant's other assertion, there is nothing in the record to suggest that the trial court did not give defendant the opportunity to present good cause. Defense counsel addressed the court twice during the latter's ruling. Defendant simply offered no explanation that would establish good cause, i.e., "a plausible reason for delay in tendering any plea," even though it was his burden to do so. (People v. Lutman (1980) 104 Cal.App.3d 64, 66, 68.) Therefore, defendant's added assertion that the trial court abused its discretion in impliedly finding that he had not shown good cause for delaying his request to enter the NGI plea fails.
The fact that the People amended that Information on February 11, 2010, to split two of the previously pled robbery counts into four based on the number of victims alleged could not possibly, as defendant now asserts for the first time, been good cause for him to delay more than three and one-half years in entering an NGI plea. Nor does defendant's numerous evaluations under section 1368 and treatment at Patton State Hospital during those years, also now asserted for the first time, excuse the delay—he was represented by counsel the entire time, who, because of those proceedings, was well aware of defendant's possible mental impairments.
As a fall-back position, defendant contends that his trial counsel was incompetent for failing to present adequate grounds to the trial court for the delay in attempting to plead NGI. Of course, in order to prevail on this point, defendant must demonstrate that such grounds exist, and he does not. Defendant's argument then morphs into an assertion that his trial counsel failed to investigate insanity as a possible defense. The record before us does not support such an assertion. The fact that defendant, to the first section 1368 evaluator in February 2006, claimed concerning "his previous criminal history . . . [that] he had committed robberies 'because the voice told me to do it'" has, contrary to defendant's present assertion, nothing to do with the instant offenses.
We additionally find no incompetence in defense counsel's candid observation to the trial court that entering an NGI plea would entail substantial delay because doctors would have to be appointed and report to the court. We assume the trial court was sufficiently informed, itself, of this inevitability; therefore we can ascribe no prejudice to defendant flowing from his attorney's observation. Even if, as defendant now asserts, trial of the guilt phase may have proceeded, evaluation and reports by yet two more psychiatrists would have unquestionably taken longer that the four days consumed by that first phase.
2. Validity of One of the Priors
The amended information alleged as a second serious prior conviction and a second strike conviction that defendant was convicted of violating Title 18 United States Code section 2113(a) in 1997. An exhibit submitted by the prosecution at the court trial of the truth of the priors was a copy of Title 18 United States Code section 2113(a) which defined "bank robbery and incidental crimes" as follows, "Whoever, by force and violence, or by intimidation, takes, or attempts to take, from the person or presence of another, or obtains or attempts to obtain by extortion any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association; or [¶] Whoever enters or attempts to enter any bank, credit union, or any savings and loan association, or any building used in whole or in part as a bank, credit union, or as a savings and loan association, with intent to commit in such bank, credit union, or in such savings and loan association, or building, or part thereof, so used, any felony affecting such bank, credit union, or such savings and loan association and in violation of any statute of the United States, or any larceny . . . ." (18 U.S.C. § 2113(b)-(e).) The section goes on to define other offenses. Thus, Title 18 United States Code section 2113(a) provides three separate ways of committing bank robbery—the traditional way (by force and violence or by intimidation), by extortion or by burglary.
Also submitted was defendant's California Law Enforcement Telecommunication System (CLETS), which stated that he had been convicted of "18 [U.S.C. section] 2113(A) US-BANK/ETC ROBBERY" and listed as the "Charge Literal BANK ROBBERY[.]" In defendant's federal judgment and probation/commitment order, also submitted to the trial court, the offense to which he had pled guilty was listed as "Bank Robbery" and he was ordered to make restitution to "the . . . aggrieved party[,]" i.e., Glendale Federal Bank in the amount of $4,864.
At the time of the commission of the charged offenses, section 667, subdivision (a)--the serious prior conviction provision—and section 667, subdivisions (c) & (e)--the strike prior provisions--applied, as is pertinent here, to offenses listed in section 1192.7, subdivision (c). (§§ 667, subds. (a)(4) & (d)(1).) Section 1192.7, subdivision (c) included "robbery or bank robbery" and the later was defined as "tak[ing] or attempt[ing] to take, by force or violence, or by intimidation from the person or presence of another any property or money or any other thing of value belonging to, or in the care, custody, control, management, or possession of any bank . . . ." (§ 1192.7, subds. (c)(19), (39) & (d).) Neither section 1192.7, subdivision (c) nor the provisions for violent felonies under section 667.5, subdivision (c), which are also considered strikes, include a second degree, or non-residential, burglary. (§ 667.5, subd. (c); § 1192.7, subd. (c).)
For purposes of section 667, subds. (b)-(i) "[a] prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as" listed in section 667.5, subdivision (c) and section 1192.7, subdivision (c). (§ 667, subd. (d)(2).)
When, as here, no facts concerning defendant's 1997 prior federal conviction were made part of the record, it must be presumed that the prior was for the least adjudicated elements of the offense. (People v. Guerrero (1988) 44 Cal.3d 343, 352, 355, disapproved on other ground in People v. Miles (2008) 43 Cal.4th 1074, 1094, fn. 14. (Miles).) Moreover, "if the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense. [Citations.] In such a case, if the serious felony nature of the prior conviction depends upon the particular conduct that gave rise to the conviction, the record is insufficient to establish that a serious felony conviction occurred." (Miles, supra, 43 Cal.4th at p. 1083.)
During the trial on the truth of the allegations that defendant had suffered the prior convictions, defense counsel, apparently unaware of section 1192.7, subdivision (d), argued, inter alia, that the least adjudicated elements of bank robbery under Title 18 United States Code section 2113(a), as to its traditional meaning: 1) lacked section 211's element that the defendant intended to permanently deprive the possessor of his or her property and, 2) provided the alternative to taking by force and violence that the defendant could take by intimidation, which was inconsistent with section 211's requirement of force or fear. He also asserted that Title 18 United States Code section 2113(a) provided the alternative that defendant could obtain the property by extortion, which is inconsistent with the elements of section 211. The prosecutor, also apparently unaware of section 1192.7, subdivision (d), responded that the intent to permanently deprive is implied in Title 18 United States Code section 2113(a) and its requirement of "intimidation" was equivalent to 211's requirement of force or fear. He did not respond to defendant's argument about extortion.
Additionally, defendant asserted that because Title 18 United States Code section 2113(a) can be violated by entering or attempting to enter a financial institution with the intent to commit there any felony affecting the institution and in violation of any statute of the United States or any larceny, it defined second degree burglary, which was not a serious or violent offense. The prosecutor did not respond to this argument.
The trial court concluded that defendant's conviction under Title 18 United States Code section 2113(a) was "substantially on track and substantially equivalent to a [conviction under] 211" and it constituted both a serious prior for purposes of section 667, subdivision (a) and a strike for purposes of section 667, subdivisions (c) & (e). Defendant here asserts that the trial court erred in reaching this conclusion.
"On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt." (Miles, supra, 43 Cal. 4th at p. 1083.)
In Miles, the California Supreme Court found bases in the record before it for concluding that defendant's conviction of a violation of Title 18 United States Code section 2113(a) was for the traditional way of committing bank robbery and not the alternate way of committing it by burglary, which would not qualify as a robbery under California law. (The extortion avenue did not then exist in Title 18 United States Code section 2113(a).) (Miles, supra, 43 Cal.4th at p. 1094.) First, the high court observed that the federal judgment and probation/commitment order in that case stated that the defendant had been convicted of "armed bank robbery . . . that involved kidnapping." (Id. at pp. 1079, 1085, 1088.) The court found that it was unlikely that a kidnapping would result if the defendant committed merely a burglary-type bank robbery. (Id. at p. 1088.)
Additionally, the court noted that only one of the then two ways of committing bank robbery "closely corresponded to the crime referred to in both legal and common parlance as robbery" and that was the traditional way. (Miles, supra, 43 Cal.4th at p. 1085.) It further noted that when the burglary method of committing bank robbery had been added to Title 18 United States Code section 2113(a), the subsection had been referred to as "Bank robbery; burglary . . . " and the United States Supreme Court had used similar distinguishing language in its decisions. (Miles at p. 1086.)
The Supreme Court further concluded, "The body of section 2113 does not expressly indicate which statutory offenses are considered 'bank robbery,' and which are 'incidental' crimes. However, as indicated above, the common understanding of the word 'robbery' suggests most strongly that, as used in the statute's title, it means the forcible taking offense set forth in the first paragraph of section 2113(a), leaving the related but distinct crimes contained elsewhere in the statute, including the crime of felonious or larcenous entry set forth in the second paragraph of section 2113(a), as the 'incidental' offenses." (Miles, supra, 43 Cal.4th at p. 1090.)
Appellate counsel here reasserts the point trial counsel made below that Title 18 United States Code section 2113(a) lacks section 211's requirement of the specific intent to permanently deprive and adds, citing federal authority, that Title 18 United States Code section 2113(a) is a general intent crime. However, he, too, appears to be unaware of section 1192.7, subdivision (d), which the Supreme Court held in Miles, supra, 43 Cal. 4th 1074, 1081, 1082, footnote 5, "substantially coincides with the offense described in the first paragraph of section 2113(a)" aside from that subsection's since added extortion theory of liability.
Here, of course, we have the added problem of the existence of the extortion manner of committing bank robbery, which was not considered in Miles. We note further that the extortion provision is part of the same paragraph as the traditional manner of committing bank robbery, thus taking this case further away from the facts in Miles. What we are left with from Miles is merely the fact that when one references bank robbery, the traditional manner of commission is the one usually meant in legal and common parlance. While the fact that defendant was ordered to pay restitution of $4,864 to Glendale Bank suggests that a burglary-type bank robbery more than likely did not take place, it is insufficient to eliminate the extortion type of crime. In light of the ambiguous nature of defendant's prior conviction, which was not adequately clarified by proof from the prosecution, we cannot agree that the People carried their burden of showing beyond a reasonable doubt that the bank robbery defendant committed was the traditional one and not the "lesser version," i.e., committed by extortion. (See People v. Jones (1999) 75 Cal.App.4th 616, 635 (Jones) [The fact that defendant was charged with the traditional form of bank robbery (the extortion form was not then available), but pled to either it or the burglary form was insufficient.].) Therefore, we will reverse the finding and remand the matter to permit the People to retry defendant on this allegation, if they choose. Otherwise, defendant must be resentenced.
We join Jones and People v. Cortez (1999) 73 Cal.App.4th 276, 281-283, in concluding that the holding of People v. Guerrero (1993) 19 Cal.App.4th 401, 408-410, that a plea to a violation of Title 18 United States Code section 2113(a) is a plea to all elements of the offense, including the traditional means of committing a bank robbery, was impliedly rejected by the California Supreme Court in People v. Rodriguez (1998) 17 Cal.4th 253, 261. (Jones, supra, 75 Cal.App.4th at p. 634.)
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DISPOSITION
Defendant's convictions and true findings related to them are affirmed, as is the trial court's finding that he suffered a 1992 serious prior and a 1992 strike prior. The trial court's true finding that he suffered a 1997 serious prior and a 1997 strike prior are reversed. The matter is remanded to the trial court to permit the People to retry defendant for the 1997 prior if they wish. If defendant is retried and true findings are made that he suffered a 1997 serious prior conviction and a 1997 strike prior conviction, the trial court is directed to amend the abstract of judgment to show that the term for count 5, a robbery, and its firearm use enhancement were stayed pursuant to section 654, not run concurrent as the abstract currently states. Further, the firearm use enhancement for count 4 of 3 years, four months, is to be placed on a separate line in the abstract and the reference to a second consecutive 3 year, four month term is to be omitted. Finally, the abstract's reference to defendant as a Caucasian must be changed to African American. If the People elect not to retry defendant for the 1997 prior, of, if he is retried, but true findings are not made, defendant is to be resentenced.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P.J.
We concur:
McKINSTER
J.
MILLER
J.