Opinion
E038547
6-14-2007
THE PEOPLE, Plaintiff and Respondent, v. ANTHONY CARRANZA, JR., Defendant and Appellant.
Keith H. Rutman, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, and Marvin E. Mizell and Karl T. Terp, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
A jury convicted Anthony Carranza, Jr. of one count of commercial burglary, in violation of Penal Code section 459. He admitted a prior prison term enhancement under section 667.5, subdivision (b). The enhancement resulted from a 1995 conviction for making terrorist threats, a violation of section 422. The prior conviction was also admitted to be a strike under sections 667, subdivisions (c) and (e)(1) and 1170.12, subdivision (c)(1). Defendant was therefore sentenced to a doubled midterm for a total of four years in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant contends: (1) the trial court erred in jury selection; (2) the evidence was insufficient to support the burglary conviction; (3) the court erred in denying his Romero motion; and (4) the court erred in denying his motion to reduce the crime to a misdemeanor.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
I. FACTS
Andres Zazueta testified that he was a loss prevention agent working for Vons grocery stores on November 18, 2004. On that date, his partner alerted him to watch defendant in the store. Mr. Zazueta saw defendant take four or five boxes of razor cartridges from the shelf and hide them under his shirt. Defendant then left the store, ignoring the beeping of sensors at the exit. The two loss prevention agents followed defendant out of the store and handcuffed him after a brief struggle. The agents recovered 12 boxes of razor cartridges valued at $ 166.40. Defendant told the agents that he intended to sell them to make a little bit of extra money. Police were called and defendant was arrested.
Other testimony valued the stolen merchandise at $105 and $155.90.
Mr. Zazueta testified that he searched defendant and did not find any identification, cash, credit cards, or an ATM card. Two jailers also testified that they searched defendant at the jail and did not find a wallet, credit cards, or an ATM card. Defendant did have 45 cents in change. A booking sheet inventorying the property and signed by defendant was introduced into evidence.
Defendants girlfriend testified, however, that she retrieved an ATM card from defendants property at the jail, and that it could have been used to make grocery purchases at the time of defendants arrest.
A. Juror Selection Issue
After the jury was sworn, the trial court was advised that Juror No. 9 had previously left a jury in mid-deliberations, and had failed to mention that she had served as a juror in another trial. The juror was questioned and the parties stipulated she could be excused for cause.
The trial court then announced that there "was a note from [Juror No. 6], who said she could not serve. I dont accept that note from her or that she cannot serve, and I dont even see the need to have a discussion with her. She is going to serve. So . . . lets call the jury in and proceed." Defense counsel agreed to this procedure, noting that it was only a one-day trial. The trial court then brought in the juror and advised her that she would be serving that day. The juror agreed to do so.
Defendant now contends that "[t]he courts utter and inexplicable failure to investigate the jurors reasons for stating that she could not serve violated [defendants] Sixth Amendment right to an impartial jury." Defendant relies on People v. McNeal (1979) 90 Cal.App.3d 830. In that case, the court held that: "Once the court is alerted to the possibility that a juror cannot properly perform his duty to render an impartial and unbiased verdict, it is obligated to make reasonable inquiry into the factual explanation for that possibility." (Id. at p. 838; see generally People v. Cleveland (2001) 25 Cal.4th 466.)
The People argue that the claim of error was waived due to the defendants failure to object in the trial court. They cite People v. Holt (1997) 15 Cal.4th 619. In that case, a prospective juror was excused for cause because she had a lawsuit pending against the district attorney. Defense counsel did not object to the dismissal. On appeal, defendant argued that the dismissal was error because the prospective juror stated she could be impartial and no actual bias was found. Our Supreme Court found it unclear whether the court found actual bias or not, but upheld the Peoples argument that an objection was required to preserve the issue for appeal: "`In general, the qualification[s] of jurors challenged for cause are "matters within the wide discretion of the trial court, seldom disturbed on appeal." [Citation.] . . . [¶] There is merit in the Peoples argument that a defendant should be required to object to the excusal of a juror on grounds other than a Witherspoon-Witt challenge in order to preserve any claim of error for appeal. We held in People v. Ashmus (1991) 54 Cal.3d 932, 987, footnote 16 . . . , that a defendant has an obligation to preserve a claim that discharge of a juror is error. `As a general rule, a defendant may properly raise in this court a point involving a trial courts allegedly improper discharge of a juror only if he made the same point below. (Ibid.) While we have not addressed the impact of a failure to object to a ruling excusing a juror for cause in this context, we see no reason that the Ashmus rule should not apply to excusing, as well as to discharging, a juror." (Id. at pp. 654-656, fn. omitted.)
Witherspoon v. Illinois (1968) 391 U.S. 510 [88 S.Ct. 1770, 20 L.Ed.2d 776]; Wainwright v. Witt (1985) 469 U.S. 412 [105 S.Ct. 844, 83 L.Ed.2d 841].
In reply, defendant argues that the trial court had a duty to make further inquiry whether or not defendant objected to the procedure used. He cites People v. Delamora (1996) 48 Cal.App.4th 1850 (Delamora). In that case, the appellate court noted that section 1089 allows the trial court to discharge a juror if the juror requests it and good cause is shown. (Delamora, supra, at p. 1855.) The appellate court held that the trial court erred when it discharged two jurors without determining whether there was good cause for the discharge. "We are not suggesting that a formal hearing must be held to determine good cause. Clearly, it is up to the trial court to determine the appropriate procedure to follow when a question arises about a jurors continued service. [Citation.] As noted above, however, the trial courts determination that good cause exists to discharge a juror must be supported by substantial evidence [citation] and where, as here, there is no evidence at all to show good cause (because no inquiry of any kind was made), the procedure used was by definition inadequate. [Citation.]" (Id. at p. 1856.)
Here, on the other hand, there was a request by the juror, but there was no good cause finding because the trial court did not investigate the matter, and did not discharge the juror. Defendant did not object to the lack of an investigation, and even agreed with the trial courts suggested method of proceeding. We agree with the People that, in this situation, an objection was needed to alert the trial court to the possibility that it needed to investigate the request to forestall a possible appellate issue. As Delamora states, the trial court must determine the appropriate procedure to follow when a question arises about a jurors continued service. (Delamora, supra, 48 Cal.App.4th at p. 1856.) The trial court stated its proposed procedure, and the defendant not only failed to object to the proposed procedure, he agreed to it.
We therefore agree with the People that Holt should be extended to apply to cases in which a juror requests discharge, and the trial court refuses to discharge a juror without conducting a good cause inquiry under section 1089. If defendant wanted the juror off the panel, he should have requested the court to conduct a good cause inquiry. By failing to do so, he waived the appellate issue.
B. Substantial Evidence to Support the Burglary Conviction
Defendant next contends that the evidence is insufficient to support his conviction for second degree burglary because there was no evidence that he intended to take the merchandise when he entered the store. In this regard, section 459 defines burglary as occurring when a "person enters any . . . store . . . with intent to commit grand or petit larceny or any felony . . . ." Accordingly, the jury was instructed that, to convict defendant, the jury had to find that "[a]t the time of the entry, that person had the specific intent to steal and take away someone elses property, and intended to deprive the owner permanently of that property."
Defendant cites People v. Sanghera (2006) 139 Cal.App.4th 1567. In that case, the court rejected a claim similar to the claim made here, finding that the circumstances were sufficient to support the conclusion that defendant entered a home with the intent to steal. (Id. at p. 1574.) The court said: "`Because intent is rarely susceptible of direct proof, it may be inferred from all the facts and circumstances disclosed by the evidence. [Citations.] Whether the entry was accompanied by the requisite intent is a question of fact for the [fact finder]. [Citation.] "Where the facts and circumstances of a particular case and the conduct of the defendant reasonably indicate his purpose in entering the premises is to commit larceny or any felony, the conviction may not be disturbed on appeal." [Citation.]" (Id. at pp. 1574-1575.)
From this shaky foundation, defendant argues that "[t]he fact that he had an ATM card in his possession supports his argument that there was no evidence of intent to steal at the time [defendant] entered the store."
The argument ignores the fact that, as described above, the prosecution witnesses testified that defendant did not have an ATM card in his possession when he was arrested and booked. The jury was entitled to believe these witnesses, and to disbelieve defendants witness. The jury could therefore infer that defendant entered the store without any funds to pay for the goods he took. It could also consider the facts that he concealed the merchandise under his shirt, ignored the sensors when he left the store, and told the agents who stopped him that he was planning to sell the razor cartridges to make a little extra money. We agree with the People that all of this evidence was sufficient to allow the jury to infer that he entered the store with the requisite intent to steal the razor cartridges and sell them. The evidence was sufficient to support defendants commercial burglary conviction.
C. The Denial of Defendants Romero Motion
At sentencing, defendant requested the trial court to vacate his prior strike allegation under section 1385 and Romero, supra, 13 Cal.4th 497. In Romero, our Supreme Court held that the trial courts power to dismiss a criminal action "in furtherance of justice" under section 1385, includes the power to dismiss strike allegations under the "Three Strikes" law, "subject, however, to strict compliance with the provisions of section 1385 and to review for abuse of discretion." (Romero, supra, at p. 504.)
After an extensive review, the court offered some guidelines for determining whether the trial court had abused its discretion: "From these general principles it follows that a court abuses its discretion if it dismisses a case, or strikes a sentencing allegation, solely `to accommodate judicial convenience or because of court congestion. [Citation.] A court also abuses its discretion by dismissing a case, or a sentencing allegation, simply because a defendant pleads guilty. [Citation.] Nor would a court act properly if `guided solely by a personal antipathy for the effect that the [T]hree [S]trikes law would have on [a] defendant, while ignoring `defendants background, `the nature of his present offenses, and other `individualized considerations. [Citation.]" (Romero, supra, 13 Cal.4th at p. 531.)
Our Supreme Court expanded on its discussion of discretionary factors in People v. Williams (1998) 17 Cal.4th 148. The court held that the trial court had acted improperly in dismissing a strike allegation under section 1385. It set forth the proper approach to the issue as follows: "We therefore believe that, in ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, `in furtherance of justice pursuant to Penal Code section 1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. If it is striking or vacating an allegation or finding, it must set forth its reasons in an order entered on the minutes, and if it is reviewing the striking or vacating of such allegation or finding, it must pass on the reasons so set forth." (People v. Williams, supra, at p. 161.)
The decision of the trial court not to dismiss a strike allegation is also subject to abuse of discretion review. (People v. Barrera (1999) 70 Cal.App.4th 541.) "`"The burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. . . . In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." [Citation.]" (Id. at p. 554.)
Both parties cite People v. Carmony (2004) 33 Cal.4th 367. In that case, our Supreme Court considered the standard of review for a trial courts decision not to dismiss or strike a sentencing allegation under section 1385. (People v. Carmony, supra, at p. 371.) The court concluded that such a decision should be reviewed under a deferential abuse of discretion standard and, applying that standard, it found no abuse of discretion. (Ibid.)
Applying the deferential abuse of discretion standard, the court said: "In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, `"[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." [Citation.] Second, a `"decision will not be reversed merely because reasonable people might disagree. `An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony, supra, 33 Cal.4th at pp. 376-377.)
Our Supreme Court emphasized that the Three Strikes law was intended to be applied whenever the defendant had prior strike convictions. It established a sentencing requirement to be applied in every case where the defendant has one or more prior strike convictions, "`unless the sentencing court "conclud[es] that an exception to the scheme should be made because, for articulable reasons which can withstand scrutiny for abuse, this defendant should be treated as though he actually fell outside the Three Strikes scheme." [Citation.] [¶] . . . [¶] Thus, the [T]hree [S]trikes law not only establishes a sentencing norm, it carefully circumscribes the trial courts power to depart from this norm and requires the court to explicitly justify its decision to do so. In doing so, the law creates a strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (People v. Carmony, supra, 33 Cal.4th at pp. 377-378.)
The trial court here stated its reasons for denying the Romero motion as follows: "Well, when I look at the defendants criminal background, it does appear to me that he comes within the scheme and spirit of the [T]hree-[S]trikes law. In looking at his prior offenses and looking at the nature of his current offense, hes violated in his lifetime probation four times and parole six times. It would be hard for me to conclude under the Williams criteria [conduct] that looks like in the future he would remain crime free." Defendant cites a later statement of the trial court: "It does seem to me, based upon his record, the fact that he continues to violate the law, that he is within the schemes spirit, at least in part, and so, therefore, I dont think hes a candidate to have a prior strike conviction stricken pursuant to Penal Code section 1385. [¶] In other words, I dont think that the legal grounds exist . . . that would support a decision on my part to strike his previous strike. I just dont think the legal grounds are there that would stand up if this matter were to go on appeal, based upon factors that Ive already mentioned. So, therefore, the motion is hereby denied."
Defendant now contends that the trial court misunderstood the scope of its discretion because "it simply decided it did not think it could undertake an analysis which would hold up on appeal."
We disagree. The trial court did, as quoted above, consider defendants individual criminal history. It had before it the probation report, which lists defendants felony and misdemeanor convictions and probation and parole violations. It also had before it the moving papers, and it heard oral argument as well as a letter from defendant expressing remorse. The comments about appellate review merely reflect the trial courts decision that there were no legal grounds to strike the prior conviction and that, if the court did so, its decision would not be upheld on appeal. We find nothing in those comments which indicates that the trial court misunderstood the scope of its discretion or otherwise failed to follow the criteria set forth in Romero and Williams.
D. The Denial of Defendants Motion to Reduce the Crime to a Misdemeanor
In his Romero motion, defendant also requested the trial court to reduce the offense to a misdemeanor. The request was based on section 17, subdivision (b), which authorizes such a reduction even when strike priors are proven.
In People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968 (Alvarez), our Supreme Court held that, "Because neither version of the [T]hree [S]trikes law qualifies the statutory authority by which a trial court may determine a crime to be `a misdemeanor for all purposes (§ 17, subd. (b)), we conclude courts continue to have broad authority the exercise of which should be reviewed in accordance with the generally applicable standard. While a defendants recidivist status is undeniably relevant, it is not singularly dispositive." (Id. at p. 973.)
Defining relevant factors, the court said: "We find scant judicial authority explicating any criteria that inform the exercise of section 17[, subdivision] (b) discretion. [Citation.] However, since all discretionary authority is contextual, those factors that direct similar sentencing decisions are relevant, including `the nature and circumstances of the offense, the defendants appreciation of and attitude toward the offense, or his traits of character as evidenced by his behavior and demeanor at the trial. [Citations.] When appropriate, judges should also consider the general objectives of sentencing such as those set forth in California Rules of Court, rule 410. The corollary is that even under the broad authority conferred by section 17[, subdivision] (b), a determination made outside the perimeters drawn by individualized consideration of the offense, the offender, and the public interest `exceeds the bounds of reason. [Citations.]" (Alvarez, supra, 14 Cal.4th at p. 978, fn. omitted.)
In this case, the reporters transcript does not show any discussion of this issue, or any disposition of the section 17, subdivision (b), motion. After the Romero motion was denied, defense counsel merely stated that she was ready to proceed to sentencing.
The clerks minutes state, however, that the section 17, subdivision (b), motion was called for hearing and denied. The minutes also reflect that the trial court had read both the motion and the opposition.
Subsequently, at the urging of defendants appellate counsel, the trial court and both trial counsel signed a settled statement which states: "Following argument, the Court denied the motion for reduction to a misdemeanor based upon its consideration of Defendant/Appellants prior criminal history."
Based on this record, defendant contends that the trial court should have reduced the offense to a misdemeanor, and that its failure to do so was an abuse of discretion.
We cannot agree. The clerks minutes and the settled statement indicate that the trial court read the moving papers, and denied the motion based upon defendants criminal record. As Alvarez states: "While a defendants recidivist status is undeniably relevant, it is not singularly dispositive." (Alvarez, supra, 14 Cal.4th at p. 973.) There is no suggestion in our record that the trial court did not consider all the factors set forth in the moving papers, including the factors relevant to the concurrent Romero motion, and the arguments presented at the hearing on that motion. The defendants criminal record was an appropriate factor to consider, and the trial court denied the motion on that basis. We cannot find the trial court abused its broad discretion in denying defendants motion to reduce the crime to a misdemeanor. "Whatever conclusions other reasonable minds might draw, on balance we find the decision tolerable given the courts broad latitude." (Alvarez, supra, at p. 981.)
II. DISPOSITION
The judgment is affirmed.
We concur:
Ramirez, P.J.
Hollenhorst, J.