Opinion
B190461
4-20-2007
THE PEOPLE, Plaintiff and Respondent, v. ROBERT WILLIE BATES, Defendant and Appellant.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
In this timely appeal following his conviction of two felony weapons violations, defendant and appellant Robert Willie Bates raises the following issues: (1) the trial court twice informed the jury of defendants prior robbery conviction, despite defendants stipulation to the existence of the conviction; (2) defendant was not advised of his constitutional rights in connection with his admission of the prior conviction, nor did he waive his rights; (3) because of the defective admission of the prior conviction, the sentence must be vacated; (4) the failure to ask the court to strike defendants prior conviction for sentencing purposes was ineffective assistance of counsel; and (5) the court failed to stay the sentence in count 2 pursuant to Penal Code section 654. We agree that defendants admission of his prior conviction for sentencing purposes must be reversed and the sentence in count 2 must be stayed pursuant to section 654; in all other respects, there is no reversible error and the judgment is affirmed.
All statutory references are to the Penal Code, unless otherwise indicated.
PROCEDURAL HISTORY
Defendant was convicted by jury in count 1 of possession of a firearm by a felon in violation of section 12021, subdivision (a)(1), and in count 2 of carrying a loaded firearm in violation of section 12031, subdivision (a)(1). Defendant stipulated that he suffered a prior conviction for purposes of count 1; however, no formal admission was taken of an alleged prior robbery conviction within the meaning of the three strikes law. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) Defendant was sentenced to four years in state prison on count 1, consisting of the midterm of two years doubled as a result of his prior strike conviction. A concurrent two-year state prison sentence was imposed on count 2.
FACTS
Deputies Robert Peacock and Andrew Meyer conducted a surveillance of Smittys Liquor at 13409 Avalon Boulevard at 7:30 p.m. on June 13, 2005. The liquor store was the source of complaints due to gang activity, loitering, narcotics activity, and drinking. The surveillance was conducted from a location approximately 200 to 225 feet from Smittys Liquor. The deputies used binoculars to aid their view of the location. Defendant was at the store.
After watching the area for 15 to 20 minutes, a marked police car, unrelated to the surveillance, drove by the location. Someone yelled, "One time," signaling others in the area of the presence of the police. The deputies saw defendant lift his shirt, remove a semiautomatic handgun from his waistband, enter a white GMC Yukon, and reach toward the center console area. The deputies then drove to the liquor store.
When the deputies arrived in the parking lot, defendant walked quickly toward Smittys Liquor. Deputy Meyer contacted defendant just inside the door of the store. Deputy Meyer asked defendant if the Yukon belonged to him. Defendant said it did not belong to him. Deputy Meyer asked defendant if he had keys to the vehicle. Defendant denied having keys, but in a later patdown, Deputy Meyer recovered the keys to the Yukon from defendant. Defendant said the keys were to his wifes car. Deputy Meyer unlocked the door to the Yukon and recovered a loaded .40 caliber semiautomatic handgun from the interior of the vehicle. A check of records revealed the weapon had not been registered. The weapon was later tested, without success, for fingerprints.
After the handgun was recovered, defendant was advised of his Miranda rights, which he waived. Defendant said he had just arrived at the parking lot, although the deputies had observed him for 15 to 20 minutes. Defendant admitted driving the Yukon to the liquor store to buy food, but he had parked seven spaces away from the stores entrance. Defendant denied knowledge of the gun.
Miranda v. Arizona (1966) 384 U.S. 436.
DISCUSSION
I
DISCLOSURE OF DEFENDANTS PRIOR ROBBERY CONVICTION DOES NOT CONSTITUTE REVERSIBLE ERROR
Prior to the commencement of testimony, defendant stipulated he had suffered a 1999 robbery conviction, in order to avoid the jury learning of the nature of the underlying felony alleged in count 1. Despite defendants stipulation, the trial court twice advised the jury of the nature of defendants prior conviction—before the opening statements and in the jury instruction defining the elements of section 12021, subdivision (a)(1). Defendant argues the trial courts disclosure of his prior conviction of robbery resulted in a denial of his Sixth Amendment right to a fair trial. We agree the trial courts inexplicable disclosure of the robbery conviction was error, but find the error harmless under the facts of the case.
There are "only two options when a prior conviction is a substantive element of a current charge: Either the prosecution proves each element of the offense to the jury, or the defendant stipulates to the conviction and the court `sanitizes the prior by telling the jury that the defendant has a prior felony conviction, without specifying the nature of the felony committed." (People v. Sapp (2003) 31 Cal.4th 240, 262.) If the defendant elects to stipulate to ex-felon status, "evidence of the nature of his prior convictions still may and should be withheld from the jury, since such evidence is irrelevant to the ex-felon issue." (People v. Valentine (1986) 42 Cal.3d 170, 173.) In determining the prejudicial effect of error in this context, a reviewing court determines whether it "appears `reasonably probable, in appellate parlance, that a verdict more favorable to defendant would have been returned had the error not occurred. (People v. Watson (1956) 46 Cal.2d 818, 836.)" (People v. Valentine, supra, 42 Cal.3d at p. 183; see also People v. Stewart (2004) 33 Cal.4th 425, 477-478.)
The Attorney General commendably does not challenge the existence of judicial error, but argues defendant has forfeited this issue by failing to object in the trial court. The argument fails upon close scrutiny. Short of granting a mistrial and beginning jury selection anew, there was no apparent remedy available to the defense. Certainly an admonition to disregard the trial courts improper disclosure of the nature of the prior conviction would not have cured the error. Accordingly, we turn to the Attorney Generals further contention that the error was nonprejudicial.
Applying the standard of People v. Watson, supra, 46 Cal.2d at page 836, we conclude it is not reasonably probable that a result more favorable to defendant would have occurred in the absence of the trial courts error. Deputies Peacock and Meyer each saw defendant remove the semiautomatic handgun from his waistband when a police vehicle drove by Smittys Liquor. Defendant hid the gun in the Yukon, demonstrating a consciousness of guilt. Defendant made a false statement to the deputies regarding how long he had been at the liquor store. Defendant also was dishonest regarding his connection to, and control over, the Yukon. No affirmative defense was presented to challenge the prosecutions case. No mention was made of the nature of defendants prior conviction during argument to the jury. We are satisfied, given this record, that the error committed by the trial court in advising the jury that defendant had been previously convicted of robbery was not prejudicial under Watson.
II
THE FINDING THAT DEFENDANT SUFFERED A PRIOR CONVICTION UNDER THE THREE STRIKES LAW MUST BE REVERSED
Defendant argues, and the Attorney General concedes, that defendant was never advised of his constitutional rights in connection with his admission of the prior conviction of robbery. We agree, reverse the finding that the prior conviction was true, and remand for retrial on the truth of the prior conviction allegation.
Defendant stipulated to the prior conviction to avoid the jury from hearing the nature of the prior offense as an element of the section 12021, subdivision (a)(1) charge. The stipulation procedure is appropriate for this purpose. (See People v. Newman (1999) 21 Cal.4th 413, 422-423.) However, California law is settled that before acceptance of an admission of the truth of a prior conviction for sentencing purposes, a defendant must be advised of his right to a jury trial, the right to confront and cross-examine witnesses, and his privilege against self-incrimination. (People v. Mosby (2004) 33 Cal.4th 353, 359-360; In re Yurko (1974) 10 Cal.3d 857, 863.) The appropriate test for determining the validity of an admission of a prior conviction is whether the totality of circumstances in the record demonstrates the defendants admission was intelligent and voluntary. (People v. Mosby, supra, 33 Cal.4th at pp. 360-361; People v. Howard (1992) 1 Cal.4th 1132, 1175.) Where the record contains no express advisement of the right to a jury trial, "we cannot infer that in admitting the prior the defendant has knowingly and intelligently waived that right as well as the associated rights to silence and confrontation of witnesses." (People v. Mosby, supra, 33 Cal.4th at p. 362.)
As the parties recognize, defendant was not advised of his right to a jury trial, nor was he advised of his privilege against self-incrimination or the right to confront and cross-examine witnesses. His admission of the prior conviction, for sentencing purposes, was not intelligent and voluntary, and the finding must be reversed. The matter is remanded to the trial court for a limited retrial on the issue of the truth of the prior conviction. (See Monge v. California (1998) 524 U.S. 721, 730-734.)
III
THE RECORD ON APPEAL DOES NOT SUPPORT A FINDING OF CONSTITUTIONALLY DEFICIENT REPRESENTATION OF COUNSEL
Defendant next argues counsel was constitutionally inadequate because she failed to move to strike defendants prior robbery conviction for purposes of sentencing. We reject the contention, as there is no explanation in the appellate record for counsels conduct, nor can defendant establish prejudice.
"To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsels performance fell below an objective standard of reasonableness, i.e., that counsels performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsels shortcomings." (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694; Williams v. Taylor (2000) 529 U.S. 362, 391-394; People v. Kraft (2000) 23 Cal.4th 978, 1068.) "`A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Strickland v. Washington, supra, 466 U.S. at p. 694; People v. Riel (2000) 22 Cal.4th 1153, 1175.)" (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
"The Sixth Amendment guarantees competent representation by counsel for criminal defendants [, and reviewing courts] presume that counsel rendered adequate assistance and exercised reasonable professional judgment in making significant trial decisions." (People v. Holt (1997) 15 Cal.4th 619, 703, citing Strickland v. Washington, supra, 466 U.S. at p. 690; People v. Freeman (1994) 8 Cal.4th 450, 513.) "A defendant who raises the issue on appeal must establish deficient performance based upon the four corners of the record. `If the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal. [Citations.]" (People v. Cunningham, supra, 25 Cal.4th at p. 1003, citing People v. Kraft, supra, 23 Cal.4th at pp. 1068-1069; People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.) Mere speculation does not meet the Sixth Amendment standard for demonstrating prejudice. (E.g., In re Clark (1993) 5 Cal.4th 750, 766.)
The record does not indicate why counsel did not move to strike defendants prior robbery conviction. Counsel made no statement regarding her tactics, nor was she asked for an explanation. Under these circumstances, defendant is not entitled to relief on direct appeal. Defendants remedy, if any, is by means of a petition for writ of habeas corpus.
In addition to the lack of an explanation for counsels conduct, defendant cannot establish prejudice. The trial court indicated it could "easily" justify an upper term sentence for defendants conduct, but it did not want to do so. There is no reason to believe the trial court would have looked favorably upon a motion to strike a prior conviction, since the court indicated it could have imposed the upper term. In the trial courts view, defendant was not entitled to a low term sentence, and there is no reason to believe the trial court would grant further leniency to defendant. Although defendant argues there are mitigating factors in the case, the reality is that defendant was a felon in possession of a concealed and unregistered semiautomatic handgun at a location notorious for criminal activity. He was on probation in another matter at the time of the current offenses. Defendant hid the handgun when a police car drove by the scene and lied to the arresting deputies about his connection to the gun. It was not until the time of sentencing that defendant acknowledged his guilt. Given this record, there is no reasonable probability the trial court would have found that defendants conduct fell outside the spirit of the three strikes law and ordered the prior conviction stricken. (See People v. Williams (1998) 17 Cal.4th 148, 160-161.)
IV
THE SENTENCE IN COUNT 2 MUST BE STAYED
Defendants final argument is that the concurrent sentence in counts 1 and 2 violates the prohibition against multiple punishment in section 654. Because there is no evidence defendant harbored separate intents and objectives in the two offenses, the sentence in count 2 must be stayed pursuant to section 654.
Section 654 provides in pertinent part as follows: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 applies to concurrent sentences. (People v. Miller (1977) 18 Cal.3d 873, 887, overruled on other grounds as stated in People v. Oates (2004) 32 Cal.4th 1048, 1067, fn. 8.)
"The test for determining whether section 654 prohibits multiple punishment has long been established: `Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor. If all of the offenses were incident to one objective, the defendant may be punished for any one of such offenses but not for more than one. (Neal v. State of California [(1960)] 55 Cal.2d [11,] 19.) A decade ago, we criticized this test but also reaffirmed it as the established law of this state. (People v. Latimer (1993) 5 Cal.4th 1203, 1209-1216.) We noted, however, that cases have sometimes found separate objectives when the objectives were either (1) consecutive even if similar or (2) different even if simultaneous. In those cases, multiple punishment was permitted. (Id. at pp. 1211-1212.)" (People v. Britt (2004) 32 Cal.4th 944, 951-952.)
No express evidence was presented at trial as to defendants intent and objective in violating counts 1 and 2. The evidentiary basis for defendants connection with the firearm was limited to the brief period of time he was under surveillance at the liquor store. No evidence was presented regarding defendants possession of the handgun at any time other than at the liquor store.
The Attorney General cites People v. Harrison (1969) 1 Cal.App.3d 115 for the proposition that multiple punishment is permissible for convictions under sections 12021, subdivision (a)(1) and 12031, subdivision (a)(1). In Harrison, a loaded handgun was recovered from underneath the passenger seat of a car driven by the defendant. Substantial evidence indicated the defendant was aware of the guns presence, and at least had constructive possession of the weapon. (People v. Harrison, supra, 1 Cal.App.3d at pp. 118-119.) The defendant in Harrison was convicted of the same offenses as defendant in this case—possession of a concealable weapon by a felon and carrying a concealed weapon. In rejecting a claim that section 654 prohibited punishment for both offenses, the Harrison court reasoned as follows:
"In our case, appellant argues he possessed or controlled but one object, the revolver, and yet was punished for two crimes only because he was an ex-convict driving a car. We note these distinctions: Penal Code section 12021 applies only to a person previously convicted of a felony and who owns or has custody, control or possession of a concealable firearm, loaded or unloaded and whether in a vehicle or not; so long as he owns or has custody, control, or possession of it, such a weapon need not be on his person or in his vehicle. The lesser offense proscribed by Penal Code section 12031, however, applies to any person and to any firearm, concealable or not, but only if it is loaded and he carries it either on his person or in a vehicle. Neither ownership, possession, custody or control is a statutory element in the unlawful carrying of a loaded firearm in a vehicle. A violation of Penal Code section 12031 is thus not a lesser offense necessarily included in the greater offense established by Penal Code section 12021. One of the tests sometimes used to determine if Penal Code section 654 applies (People v. Knowles (1950) 35 Cal.2d 175, 186-189, cert. denied (1950) 340 U.S. 879), therefore, is not met.
"The two statutes strike at different things. One is the hazard of permitting ex-felons to have concealable firearms, loaded or unloaded; the risk to public safety derives from the type of person involved. The other strikes at the hazard arising when any person carries a loaded firearm in public. Here, the mere fact the weapon is loaded is hazardous, irrespective of the person (except those persons specifically exempted) carrying it.
"The `intent or objective underlying the criminal conduct is not single, but several, and thus does not meet another of the tests employed to determine if Penal Code section 654 is violated. (Neal v. State of California[, supra,] 55 Cal.2d [at pp.] 19-20, cert. denied (1961) 365 U.S. 823.) For an ex-convict to carry a concealable firearm is one act. But loading involves separate activity, and while no evidence shows that appellant personally loaded the pistol, there seem[s] little distinction between loading and permitting another to do so. Thus, two acts, not a single one, are necessarily involved and bring our case outside the prohibition against double punishment for a single act or omission. We therefore hold contrary to appellants contentions on this point." (People v. Harrison, supra, 1 Cal.App.3d at p. 122.)
To the extent Harrison suggests that multiple punishment is required, as a matter of law, for the single act of a felon possessing a firearm and carrying a loaded firearm, we disagree. A search for substantial evidence of defendants intent and objective must be undertaken, since "[w]hether multiple convictions are part of an indivisible transaction is primarily a question of fact. (People v. Avalos (1996) 47 Cal.App.4th 1569, 1583.) We review such a finding under the substantial evidence test (People v. Osband (1996) 13 Cal.4th 622, 730-731); we consider the evidence in the light most favorable to respondent and presume the existence of every fact the trier could reasonably deduce from the evidence. (People v. Holly (1976) 62 Cal.App.3d 797, 803.)" (People v. Martin (2005) 133 Cal.App.4th 776, 781.)
The reasoning of Harrison has not been universally followed. (See People v. Lopez (2004) 119 Cal.App.4th 132, 137-138 [§ 654 barred multiple punishment for unlawful possession of a firearm under § 12021 and unlawful possession of ammunition under § 12316, subd. (b)(1)—where the conduct is indivisible, a court should not "parse the objectives too finely"]; People v. Perry (1974) 42 Cal.App.3d 451, 456-457 [§ 654 bars multiple punishment for simultaneous offenses of possession of a sawed off shotgun and felon in possession of a firearm].)
In this case, there is no substantial evidence that defendant possessed an intent to do anything other than possess the handgun. Speculation regarding the existence of defendants multiple intents and objectives, with no evidentiary support, "parses the objectives too finely," in the words of our Supreme Court. (People v. Britt, supra, 32 Cal.4th at p. 953.) Under these circumstances, section 654 applied and the sentence as to count 2 should have been stayed.
DISPOSITION
The finding that defendant suffered a prior robbery conviction within the meaning of sections 667, subdivisions (b)-(i) and 1170.12, subdivisions (a)-(d), is reversed. The issue of the validity of the prior conviction is remanded to the trial court for retrial. The trial court is ordered to stay the sentence in count 2 pursuant to section 654, the stay to become permanent upon completion of the sentence in count 1. In all other respects, the judgment is affirmed.
We concur:
TURNER, P. J.
ARMSTRONG, J.