Opinion
F060491
11-29-2011
THE PEOPLE, Plaintiff and Respondent, v. JUAN FRANCISCO MALDONADO, Defendant and Appellant.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. DF009264A)
OPINION
THE COURT
Before Wiseman, Acting P.J., Levy, J., and Kane, J.
APPEAL from a judgment of the Superior Court of Kern County. John R. Brownlee, Judge.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
A jury convicted appellant, Juan Francisco Maldonado, of possession of heroin in prison (Pen. Code, § 4573.6). In a separate proceeding, the court found true allegations that Maldonado had two prior convictions within the meaning of the three strikes law (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code, unless otherwise indicated.
On June 8, 2010, the court sentenced Maldonado to an indeterminate term of 25 years to life which it imposed consecutive to the term he was serving when he committed the current offense.
On appeal, Maldonado contends: 1) the prosecutor engaged in prosecutorial misconduct; and 2) the evidence is insufficient to support the court's true finding with respect to one of his prior strike convictions. We will affirm.
FACTS
At the trial in this matter, Correctional Sergeant Robert Barrett testified that he worked at Facility C of the Kern Valley State Prison. The prosecutor then asked Barrett, "Now, can you tell us a little bit about what Facility C is?"
Barrett responded, "Facility C is a what we refer to as a sensitive needs yard. It's where inmates that cannot function on a daily basis on a main line or general population yard live. [¶] They've either depending on their crime, if it was [of] a sexual nature or maybe for whatever reason that an inmate has disassociated himself from his gang life and given up his gang ties and feels potentially threatened by other members of the gang, he'll drop out and they can come possibly program on our facility."
Barrett then testified that on September 28, 2008, at approximately 1:15 p.m., after receiving a tip that Maldonado was in possession of heroin that he intended to sell, he instructed other correctional officers to find Maldonado and strip search him. The officers located Maldonado and began performing the search. When Maldonado was stripped down to his boxer shorts, he ran away from the officers. Barrett and another officer ran after Maldonado and caught up to him next to a drain in the lower yard. As Barrett sprayed Maldonado with pepper spray, he saw Maldonado drop a shiny object in the drain. Maldonado then stopped resisting and lay on the ground where he was handcuffed and eventually escorted away.
Sergeant Barrett remained at the drain while a staff member brought him a broomstick and some tape. He then used his flashlight to look inside the drain and the broomstick and tape to retrieve from the drain a shiny, clear plastic bindle, tied off at the bottom with six smaller bindles inside. Barrett suspected the bindles contained heroin.
Sergeant Barrett further testified that the drains are searched every day.
Correctional Officer Benjamin Aguinaldo testified that he helped conduct the strip search of Maldonado. During the search, the officers noticed that one of Maldonado's hands was formed into a fist and held a gray paper, wrapped in cellophane or plastic that was tied on one end. When the officers ordered Maldonado to get on the ground, he ran away. Maldonado first ran to one drain, hesitated, and ran to a second drain where Aguinaldo saw him toss a plastic-wrapped object into the drain.
Criminalist Alison Kennedy testified that the six small bindles contained a brown sticky material. She analyzed the contents of two of the six bindles and found that they contained heroin and weighed a combined total of .13 grams.
Maldonado did not testify or present any other evidence.
DISCUSSION
The Alleged Prosecutorial Misconduct
Prior to the evidentiary portion of the trial, the trial court instructed the prosecutor "not to make any reference, comment, or insinuation about [Maldonado's] arrest record." Maldonado contends the prosecutor engaged in misconduct when he elicited from Sergeant Barrett that Facility C, in which Maldonado was housed, was a sensitive needs yard, i.e., one for inmates who have been "convicted of a sex offense or were dropping out of gang society." We will find that Maldonado did not preserve this issue on appeal and that, in any event, any misconduct by the prosecutor was harmless.
"'Prosecutors play a dual role in the criminal justice system; they are advocates, but they are also administrators of justice. [Citation.] "'[I]t is their sworn duty to see that the defendant has a fair and impartial trial, and that he be not convicted except by competent and legitimate evidence....'" [Citation.]' [Citation.] A prosecutor's intemperate behavior violates the federal Constitution when that behavior comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to deny the defendant due process. [Citation.] Under the state standard, conduct that does not render the trial fundamentally unfair is misconduct if it involves the use of deceptive or reprehensible methods to attempt to persuade the trier of fact. [Citation.] 'A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. [Citation.]' [Citation.]" (People v. Williams (2009) 170 Cal.App.4th 587, 628-629.)
"A prosecutor commits misconduct by eliciting evidence in violation of a ruling by the trial court or by referring during opening statements or closing arguments to evidence that the trial court has determined to be inadmissible. [Citation.]" (People v. Williams, supra, 170 Cal.App.4th at p. 629.)
Maldonado forfeited this issue on appeal by his failure to object and seek a curative admonition in the trial court. (People v. Benavides (2005) 35 Cal.4th 69, 108.) Maldonado, however, contends that he did not forfeit this issue because the evidence of the misconduct was incurably prejudicial and thus an objection and a curative admonition would have been futile. We disagree.
The offending testimony was not "incurably prejudicial" as Maldonado contends because it was limited to a single statement by Sergeant Barrett, it lacked any detail regarding the sex offense that Maldonado might have been convicted of or the activities of the gang he was formerly associated with, the jurors were already aware that Maldonado was an inmate, and it potentially cast him in a positive light as someone who disavowed the gang lifestyle and was attempting to turn his life around. Further, a jury is presumed to follow a court's instruction in the absence of any indication that it was unwilling or unable to do so. (People v. Letner (2010) 50 Cal.4th 99, 196.) Here, Maldonado has not cited anything in the record that indicates the jury would not have followed a curative admonition by the court to disregard the testimony at issue. Accordingly, we reject Maldonado's claim that he was not required to object and seek a curative admonition in order to preserve the issue of the prosecutor's alleged misconduct on appeal. (People v. Foster (2010) 50 Cal.4th 1301, 1354 [Supreme Court rejected defendant's assertion that he did not forfeit claim of prosecutorial misconduct by his failure to object and seek curative admonition where defendant did not explain why a curative admonition would not have cured any harm].)
In any event, even if this issue were properly before us, we would reject it. Assuming the prosecutor engaged in misconduct as Maldonado contends, the misconduct did not prejudice Maldonado because the evidence of his guilt was overwhelming. The prosecution's uncontroverted evidence established that during the search of Maldonado, one officer saw a gray paper, wrapped in cellophane, in Maldonado's closed fist. Maldonado then ran away from the officers and was seen dropping an object into a drain. Within minutes, Sergeant Barrett retrieved from the drain an object, wrapped in clear plastic, containing six bindles of heroin. Given the short time interval between Maldonado dropping an object into the drain, and the retrieval of a similar object containing the bindles of heroin from the drain, the inescapable conclusion is that Maldonado dropped the bindles of heroin into the drain.
Maldonado contends the evidence of his guilt is not overwhelming because it is possible that the object Barrett retrieved was placed there earlier in the day by inmates or "conceivably even a corrupt corrections officer." He also cites certain evidence to contend there is a "compelling basis to doubt" that the drain was searched on September 28, 2008, prior to Sergeant Barrett finding the heroin there. However, Barrett retrieved only one object from the drain and Maldonado's speculative theories do not account for Barrett's failure to find and retrieve a second object from there. Nor do they account for the virtually identical description of the object seen in Maldonado's fist and the one retrieved from the drain. Thus, we conclude that any prosecutorial misconduct in eliciting the testimony complained of was harmless beyond a reasonable doubt.
In support of this argument, Maldonado cites the prosecutor's failure to provide him with the Daily Activity Report for September 28, 2008, which would have included a log of the drain searches conducted that day and Sergeant Barrett's admission that he did not review the Daily Activity Report for that date.
The Sufficiency of Evidence Issue
The court's finding that Maldonado had two prior convictions within the meaning of the three strikes law was based on Maldonado's November 22, 2002 convictions for oral copulation in concert by force (§ 288a, subd. (d)) and kidnapping for the purpose of committing another crime (§ 209, subd. (b)(1)). After the jury convicted Maldonado on the possession offense, the court conducted a bench trial on the prior strike allegations. To prove Maldonado's strike convictions, the prosecutor introduced into evidence a section 969b prison packet, which contained an abstract of judgment for these convictions. The abstract described Maldonado's oral copulation in concert offense as a violation of "PC" "288a(d)," "Oral Copulation - Acting in Concert with Force."
Maldonado concedes that an abstract of judgment is admissible to prove that a prior conviction is a serious or violent felony within the meaning of the three strikes law. (See e.g., People v. Banuelos (2005) 130 Cal.App.4th 601, 606 (Banuelos).) However, he relies on the version of section 667.5, subdivision (c)(5) in effect prior to September 20, 2006, to contend that the description of his oral copulation offense in the abstract of judgment is insufficient to support the trial court's finding that that offense is a violent felony. According to Maldonado, oral copulation in concert in violation of section 288a, subdivision (d) can be committed in three ways, two of which do not constitute violent felonies. Therefore, according to Maldonado, the notation at issue does not establish that he committed his oral copulation offense in a manner that made it a violent felony because the notation is ambiguous and "could also be construed as a shorthand description of the criminal conduct described by section 288a, subdivision (d)." We will reject these contentions.
In 2002, when Maldonado was convicted of oral copulation in concert by force, section 288a, subdivision (d) provided: "Any person who, while voluntarily acting in concert with another person, either personally or by aiding and abetting that other person, commits an act of oral copulation (1) when the act is accomplished against the victim's will by means of force or fear of immediate and unlawful bodily injury on the victim or another person, or (2) where the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, or (3) where the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent..." (Stats. 1998, ch. 936, § 5.) Section 288a, subdivision (d) currently provides additional ways in which that subdivision can be violated. (Stats. 2010, ch. 219, § 8.)
"The Three Strikes law ([§ 667, subds. (b)-(i)]) provides longer sentences for convicted felons who were previously convicted of a violent felony as defined by section 667.5, subdivision (c) or a serious felony as defined by section 1192.7, subdivision (c). [§ 667, subd. (d)(1).] A defendant with one or more such prior convictions (strikes) must be sentenced for the current offense under the Three Strikes law. (§ 667, subd. (f)(1).) The prosecution bears the burden of proving beyond a reasonable doubt that a defendant's prior convictions were for either serious or violent felonies. When a defendant challenges the sufficiency of the evidence to uphold a finding that his prior convictions qualified as strikes, the test on appeal is whether a reasonable trier of fact could have found that the prosecution sustained its burden. We review the record in the light most favorable to the trial court's findings. [Citation.]" (People v. Towers (2007) 150 Cal.App.4th 1273, 1277, fn. omitted, italics added.)
"Sections 14 through 17 of Proposition 21 [the Gang Violence and Juvenile Crime Prevention Act of 1998] amend[ed] portions of the Three Strikes law. [Citation.] Section 15 alter[ed] the list of 'violent felonies' (... § 667.5, subd. (c)), and section 17 modifie[d] the list of 'serious felonies' (... § 1192.7, subd. (c)), for which enhanced sentences are required. (See ... § 667.) Sections 14 and 16 change[d] the 'lock-in' date for determining the existence of qualifying offenses (such as violent or serious felonies) under the Three Strikes law. Thus, before the passage of Proposition 21, references to existing statutes, such as the law defining violent felonies, in ... section 667 were 'to statutes as they existed on June 30, 1993.' (... § 667, subd. (h).) Section 14 of Proposition 21 provide[d] that references to existing statutes in . section 667, for all offenses committed on or after the effective date of the initiative, [were] to those statutes as they existed on the effective date of Proposition 21 (March 8, 2000), including, but not limited to, amendments made to those statutes by this initiative. (... § 667.1.) Section 16 of the initiative [made] a corresponding change to the lock-in date for statutes referenced in ... section 1170.12. (... § 1170.125.)" (Manduley v. Superior Court (2002) 27 Cal.4th 537, 574-575.)
Our conclusion, infra, that the abstract of judgment established that Maldonado's oral copulation conviction is a violent felony makes it unnecessary to discuss whether it established that this offense qualifies as a serious felony within the meaning of the three strikes law.
Further, "[section] 667.1, as amended in 2006, provides that, with respect to offenses committed on or after September 20, 2006, references in the three strikes law to existing statutes are to statutes as they existed on that date." (3 Witkin, Cal. Crim. Law 3d (2011 supp.) Punishment, § 353, p. 297.)
Section 667.1, as amended effective September 20, 2006, provides: "Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after the effective date of this act, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on the effective date of this act, including amendments made to those statutes by the act enacted during the 2005-06 Regular Session that amended this section."
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Prior to September 20, 2006, section 667.5, subdivision (c)(5) listed as a violent felony: "Oral copulation by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person." (Stats. 2002, ch. 606, § 2.)
Section 667.5, subdivision (c) was amended effective September 20, 2006, so that subdivision (c)(5) listed as a violent felony, "Oral copulation, as defined in subdivision (c) or (d) of Section 288a." (Stats. 2006, ch. 337, § 30.)
Maldonado committed his current offense after September 20, 2006, when a violation of any subsection of section 288a, subdivision (d) constituted a violent felony. Therefore, the notation in the certified abstract of judgment that in 2002, he was convicted of violating section 288a, subdivision (d) was sufficient to prove that that conviction was a violent felony within the meaning of the three strikes law. (People v. Delgado (2008) 43 Cal.4th 1059, 1066 (Delgado) [a certified abstract of judgment may be used to prove the fact and nature of a prior conviction].)
However, even if the pre-September 20, 2006, version of section 667.5, subdivision (c) was applicable to Maldonado's current offense, we would nevertheless reject Maldonado's sufficiency of evidence claim. The notation in the abstract of judgment unambiguously states that Maldonado was convicted of oral copulation by force which clearly qualifies it as a violent felony under the version of section 667.5, subdivision (c)(5) in effect prior to September 20, 2006. (Delgado, supra, 43 Cal.4th at pp. 1069-1070 [notation in abstract of judgment that defendant was convicted of violating "PC" "245(A)(1)" and separate description of offense as "Asslt w DWpn" held sufficient to prove that conviction was for serious felony of assault with a deadly weapon].)
Maldonado's reliance on People v. Rodriguez (1998) 17 Cal.4th 253 (Rodriguez) and Banuelos, supra, 130 Cal.App.4th 601 to argue otherwise is unavailing. Both cases involved a defendant's prior conviction for violating section 245, subdivision (a)(1) which prohibits the commission of "an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury." In Rodriguez, the trial court found that the defendant's conviction for assault constituted a serious felony under section 1192.7, subdivision (c) and thus a "strike" under the three strikes law. The abstract of judgment submitted by the People to prove this strike showed that in 1983, the defendant had pled guilty to violating section 245, subdivision (a)(1) and it contained the abbreviation, "ASLT GBI/DLY WPN." (Rodriguez, supra, 17 Cal. 4th at p. 261.) In finding the notation insufficient to prove that the defendant's assault conviction was a serious felony, the Supreme Court stated,
"This evidence, standing alone, did not prove that defendant had pled guilty to a 'serious' felony as defined in section 1192.7, subdivision (c). Under that section, as relevant here, only those crimes are 'serious' felonies in which the defendant 'personally inflict[ed] great bodily injury on any person, other than an accomplice, or ... personally use[d] a firearm' (id., subd. (c)(8)), or 'personally use[d] a dangerous or deadly weapon' (id., subd. (c)(23)). One may thus violate section 245(a)(1) in two ways that would not qualify as 'serious' felonies under section 1192.7, subdivision (c): First, one may aid and abet the assault without personally inflicting great bodily harm or using a firearm. Second, one may commit the assault with force 'likely' to cause great bodily injury without, however, actually causing great bodily injury or using a deadly weapon. Accordingly, the least adjudicated elements of the crime defined in section 245(a)(1) are insufficient to establish a 'serious' felony. [Citations.]" (Rodriguez, supra, 17 Cal.4th at p. 261.)
In Banuelos, the trial court found that the defendant's prior conviction for violating section 245, subdivision (a)(1) qualified as a serious felony and a strike under the three strikes law. Under the existing law at that time, a conviction for assault with a deadly weapon under section 245, subdivision (a)(1) qualified as a serious felony whether or not the defendant was convicted as a direct perpetrator or as an aider and abettor. (Banuelos, supra, 130 Cal.App.4th at p. 605.) Further, the only evidence presented that was admissible to prove the nature of the defendant's assault conviction was an abstract of judgment that reflected a conviction for violating section 245, subdivision (a)(1) and which described the crime as "ASSAULT GBI W/DEADLY WEAPON." The Banuelos court found this evidence insufficient to prove that the defendant's assault conviction was a serious felony:
"[The abstract of judgment's] reference to the crime as 'ASSAULT GBI W/DEADLY WEAPON' is ambiguous. Although the notation could be read to mean that the assault was committed both by means of force likely to produce great bodily injury and with a deadly weapon, it could also be construed as a shorthand description of the criminal conduct covered by section 245, subdivision (a)(1)—assault by means of force likely to product great bodily injury or with a deadly weapon." (Banuelos, supra, 130 Cal.App.4th at p. 606.)
Rodriguez and Banuelos are both easily distinguishable because the notation in Maldonado's abstract of judgment is not ambiguous. Under the version of section 288a, subdivision (d) in effect in 2002, section 288a, subdivision (d) could be violated in three ways. However, Maldonado's abstract of judgment clearly referenced only the manner, i.e., through the use of force, that qualified his oral copulation offense as a violent felony.
Maldonado relies on the abstract of judgment's description of his kidnapping offense to make one final argument. The abstract describes his prior kidnapping offense as a violation of "PC" "209(b)(1)," "Kidnap to Commit Another Crime" and does not identify the specific offense of several listed in that section that he intended to commit. Maldonado contends this entry seems to indicate that the entries in the abstract were merely shorthand statements of the general conduct that violates each particular statute rather than being intended to describe the facts underlying each conviction. We disagree.
The trial court could reasonably conclude from use of the words "with Force" in the abstract of judgment that Maldonado committed his oral copulation offense in a manner that made it a violent felony. Accordingly, we conclude that evidence supports the trial court's finding that Maldonado's 2002 conviction for the oral copulation in concert offense is a violent felony within the meaning of the three strikes law. (Delgado, supra, 43 Cal.4th at pp. 1069-1070.)
DISPOSITION
The judgment is affirmed.