Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
City & County of San Francisco Super. Ct. No. 2225084
SIMONS, J.
Defendant Gary D. Ray appeals his conviction by jury trial of first degree burglary (Pen. Code, § 459) and receiving stolen property (§ 496, subd. (a)). In a bifurcated bench trial, the court found true prior prison term and prior serious felony allegations. (§§ 667.5, subd. (b), 667.) He contends the court erroneously denied his Marsden motion (People v. Marsden (1970) 2 Cal.3d 118) and committed sentencing error, and his burglary conviction is unsupported by substantial evidence. The People contend the court improperly failed to double defendant’s burglary sentence pursuant to the “three strikes” sentencing scheme. (§ 1170.12, subd. (c)(1).)
All undesignated section references are to the Penal Code.
Defendant was sentenced to 12 years in state prison.
BACKGROUND
On the morning of July 5, 2005, Julie and David Burns left their Seal Rock Drive home to go to work. They returned home together shortly after 5:00 p.m., a couple hours earlier than usual. As the Burnses approached their home’s tunnel entryway, they heard the garage door squeaking, a loud thumping or banging sound, and footsteps indicating more than one person was inside their home. The Burnses left the house and called 911.
Solely for convenience we refer to the Burnses, individually, as Julie and David.
At about the same time, Josh Sommer, who lived two houses away from the Burnses, saw two men running westbound across his backyard. The men, one Black, one White, wore hats, heavy jackets and baggy pants. Sommer called 911, then went outside and talked with Julie.
San Francisco Police Officers Tabo and Dear responded to the Burnses’ 911 call of a burglary in process and entered the Burnses’ home. The garage and house appeared ransacked and the trunk of their car was open. Missing from the Burnses’ car and home were a Banana Republic bag with newly purchased clothing, a Dell projector, a plastic jar filled with coins, a hydration backpack, and two semiautomatic pistols.
After learning that there was movement in nearby bushes, Tabo and Dear went outside and found two heavy jackets, one gray, one blue, on a log. Tabo opined that the jackets had been recently put there. Inside the pocket of the gray jacket was a pair of gloves and a cell phone. When the phone was turned on “$RAY$” appeared on the display.
While police were searching the neighborhood for the burglars, Julie and Sommer waited outside. They saw a Black man, later identified as defendant, wearing a blue basketball tank top with white sweat pants, walk by and then get into a Mazda and drive away. Defendant caught their attention because he was so sparsely dressed given the very cold, misty weather. Sommer got the license plate number of the Mazda and Julie called it in to the police. Later, the police determined the Mazda was registered to an Eddy Street address. At 6:08 p.m., defendant drove the Mazda to the Eddy Street address and was detained by police. He was wearing a light blue tank top and light gray sweatpants. Inside the Mazda, police found a Dell projector, a Banana Republic bag, a jar with coins, and a hydration backpack. Defendant’s fingerprints were found on the coin jar.
San Francisco Police Inspector Olsen interviewed defendant on the evening of the burglary. Defendant said he resided at the Eddy Street address and gave his phone number, which matched the number of the cell phone found by police. Defendant said he got the items recovered from the Mazda about 30 minutes before he was detained by police. He claimed to have purchased the projector, some clothing, and the backpack, for $150 at Oak and Stanyan Streets, said he knew they were “hot” but did not know they had been recently stolen. When Olsen asked defendant if he had ever been to the Seal Rock Drive home, defendant said he had never been out to the beach or any houses on Seal Rock Drive. He admitted that the gray jacket found by police was his, but said he had given it to a homeless person. He denied that the gloves found inside the jacket were his and said he had lost his cell phone a while ago. He also denied knowledge of the guns taken in the burglary. When Olsen told defendant that witnesses had seen him, and his phone had been found inside the pocket of his jacket found near the burglary scene, defendant said, “I’m fucked,” and put his head down.
DISCUSSION
I. The Marsden Motion Was Properly Denied
Defendant contends the court erroneously denied his request for substitute counsel by failing to conduct an adequate inquiry. He argues the error is reversible per se.
On December 16, 2005, the day set for trial, defense counsel stated that defendant wanted to address the court regarding his Marsden motion, and the following colloquy occurred:
“THE COURT: And [defense counsel], you were here earlier. You said that [defendant] wished to say something. And earlier he did say he wanted a new attorney. [¶] So [defendant], let me ask you, number one, why — let me caution you on this. If you get a new attorney, obviously, you would have to waive time to have the trial set off a couple months or so, so a new attorney would get it. So I want you to be sure you are aware of all of this. [¶] So tell me what’s the situation here?
“[DEFENDANT]: It’s nothing personal against my attorney now. It’s like we have a hard understanding of what I want and what she wants. And it’s like — I mean I ain’t never did this before. I don’t really understand how I go about this Marsden hearing. I just feel like having somebody who is going to represent me right.
“THE COURT: Sure. It’s not an unusual feeling when people get in custody and the attorneys aren’t sitting there with them 24 hours a day. But that’s the facts of life here where a[n] attorney can only see you so often, or so many times, or do as much as they say. The question is, can she capably represent you. [¶] Well, let me hear from [defense counsel]. [¶] Have you investigated the case? Are you ready for trial? What is the situation?
“[DEFENSE COUNSEL]: We are ready for trial. [¶] The last discussion was with regard to whether or not we should waive time and put this out until January. And that was the discussion that he and I had yesterday. He indicated he doesn’t want to. [¶] . . . We’ve talked to every one of the witnesses in the case. My investigator has spoken with a couple of witnesses that we had on [defendant’s] behalf. We’ve taken photographs of the scene, we’ve gone out to the scene, taken photographs from the house itself of certain areas, and we’ve prepared the defense in the case. . . . [¶] I advised him, for strategic reasons, that I thought that a trial after the holidays, we may have a more accommodating jury panel, a happier jury panel. And that in a case like this where his exposure is so high it might well be advised to wait until after the holidays where people aren’t sitting there wondering whether they are going to get home each day and really listen to the facts of the case. [¶] . . . [¶]
“THE COURT: From what I am hearing of [defense counsel] — I’ve known her for some years now before the court. She is very capable and very, very dedicated. And it sounds like she has prepared the case. She has done everything [she] has to do; investigated, talked to witnesses. [¶] It’s not like she is ignoring the case. Some people come in and say, well, my attorney hasn’t done anything. Well, obviously she has. And I find that she is going to be able to give you proper representation as good as you will get from anybody else. You put a new attorney in here now, they have to start all over again. That would not be to your advantage. [¶] I am going to deny your motion. [¶] . . . I can tell you [defense counsel’s] approach is not a bad one. I wouldn’t want to try a case before New Year’s if I were a defendant. But that’s — the two of you have to work that out.
“[DEFENSE COUNSEL]: Okay.
“THE COURT: You want a jury that’s half way happy. And if they are giving up their holidays, they are not happy. [¶] At any rate, I’m going to calendar it for Monday. Motion will be denied. And hopefully, you will work something out by Monday. You have a very good attorney there, [defendant]. Trust me.”
“A defendant is entitled to have appointed counsel discharged upon a showing that counsel is not providing adequate representation or that counsel and defendant have become embroiled in such an irreconcilable conflict that ineffective representation is likely to result. [Citations.]” (People v. Jones (2003) 29 Cal.4th 1229, 1244-1245.) “ ‘ “ ‘When a defendant seeks to discharge appointed counsel and substitute another attorney, and asserts inadequate representation, the trial court must permit the defendant to explain the basis of his contention and to relate specific instances of the attorney’s inadequate performance.’ ” ’ [Citation.]” (People v. Welch (1999) 20 Cal.4th 701, 728.) A trial court’s refusal to relieve appointed counsel is reviewed under the deferential abuse of discretion standard. (Jones, at p. 1245.)
Defendant argues that the trial court’s “perfunctory inquiry” was insufficient because after he presented information that the attorney-client relationship was “compromised,” the court failed to investigate the nature of the breakdown. We disagree. After defense counsel apprised the court that defendant wanted to address the court about his Marsden motion, the court asked defendant, “what’s the situation here?” Defendant explained that he and defense counsel “want[ed]” different things, and defense counsel explained that their differences had to do with whether or not to waive time for trial. Although defendant did not make any further statements regarding his Marsden motion, he was not precluded from doing so. Counsel explained the nature of their disagreement and her degree of preparedness for trial.
We conclude the Marsden motion was properly denied. Defense counsel’s comments reveal that at the time of the motion she was extremely well prepared; all the witnesses had been talked to, photographs had been taken of the crime scene, and the defense had been prepared. In addition, the only identified disagreement between defendant and counsel was over whether defendant should waive time and continue trial until after the holidays. Time could not be waived unless defendant personally agreed, and ultimately he did so. The record before us does not suggest the court’s inquiry was insufficient, or counsel’s representation was inadequate, or any irreconcilable conflict existed between defendant and counsel.
II. Substantial Evidence Supports Defendant’s Burglary Conviction
Next, defendant contends that there was insufficient evidence to convict him of burglary. He argues that although he was arrested with property belonging to the Burnses, there is no evidence he entered or was inside the Burnses’ home or was one of the persons who stole the Burnses’ property. He asserts that at most he could be convicted of possessing stolen property. Similarly, he argues that although there was evidence he was near the scene after the burglary, there was no evidence he aided and abetted the burglars. Thus, he asserts at most he could be liable as an accessory.
Additionally, defendant argues that because there is no substantial evidence to support his burglary conviction, the prior serious felony finding (§ 667, subd. (a)) must be stricken.
“To determine whether there is substantial evidence to support a conviction we must view the record in a light most favorable to conviction, resolving all conflicts in the evidence and drawing all reasonable inferences in support of conviction. We may conclude that there is no substantial evidence in support of conviction only if it can be said that on the evidence presented no reasonable [factfinder] could find the defendant to be guilty on the theory presented. [Citation.]” (People v. Nguyen (1993) 21 Cal.App.4th 518, 528-529 .)
To sustain defendant’s conviction for burglary, the prosecution had to prove that defendant entered into a specified structure, i.e., the Burnses’ home, with the intent to commit theft or any felony. (People v. Tafoya (2007) 42 Cal.4th 147, 170-171.)
Here, the evidence established that more than one intruder was heard inside the Burnses’ home; and, at about the time of the burglary, a Black man and a White man were seen running across a neighbor’s yard wearing heavy jackets. While the police were searching for the burglars, Julie and Sommer saw defendant, a Black man, sparsely dressed, enter a Mazda and drive off. An hour after the burglary, items taken in the Burns burglary were found inside the Mazda and defendant’s fingerprints were found on one of the items. Outside the burglary scene in nearby bushes, police found two heavy jackets, one of which defendant later admitted was his. He also admitted that a cell phone found inside his jacket belonged to him. Viewing this evidence in the light most favorable to the judgment, the jury could reasonably conclude that defendant was one of the men who entered the Burnses’ home, removed items therefrom, and transported them away from the burglary scene in the Mazda.
Similarly, in People v. Ringo (2005) 134 Cal.App.4th 870, the court found the defendant’s conviction for first degree residential burglary was supported by substantial evidence although there was no direct evidence of the defendant’s entry into the burglarized home. The defendant’s boots were found in the victim’s yard, the defendant was arrested in the house next door to victim’s house, and victim identified a missing watch that had been in defendant’s possession. (Id., at pp. 880-881.)
III. The Court’s Upper Term Sentence Did Not Violate Cunningham
Defendant next contends the court’s imposition of the upper term based on factors recited by the court at the August 18, 2006 sentencing hearing violated Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham).
In imposing the upper term on the burglary charge the court stated: “I am . . . going to impose the aggravated [term] of six [years] for the following reason: The manner in which the crime was carried out indicates planning, sophistication and professionalism. [D]efendant working in concert with another suspect had apparently broken into a home and burglarized it. He was reportedly seen driving away from the scene in his car, conveniently parked near the scene, and . . . this was the home that was in the middle of the block. There seemed to be a planning to go for a direct target, and that was the guns that were owned by the victim. It appears to the court from the evidence that the people involved in the case knew the routine of the victims, and but for the victims happened to come home earlier that day so under [California Rules of Court, r]ule 4.421(a)(8). [¶] Also the court finds that the crime involved the attempted or actual taking or damage of great monetary value. I find that to be the case in view of the guns that were trying to be acquired by the participants, and that’s [rule] 4.421(a)(9). [¶] [D]efendant’s prior convictions as an adult and sustained convictions in juvenile delinquency proceedings are numerous and are of an increasing serious nature. To date . . . defendant has four sustained juvenile petitions and three adult convictions, one of which is a strike which was alleged, a robbery, and that’s [rule] 4.421(b)(2). [¶] [D]efendant has served two prior prison terms, and that would be [r]ule 4.421(b)(3). [¶] And . . . defendant’s prior performance on probation or parole was unsatisfactory. Subsequent arrests resulted in repeated probations and violations. I find that based upon the probation report. And that would be [r]ule 4.421(b)(5). [¶] And for those reasons I am imposing the aggravated [term].”
All further rule references are to the California Rules of Court.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the United States Supreme Court applied the Sixth Amendment and held that other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. In Cunningham, supra, the high court held that California’s determinate sentencing law violated a defendant’s federal right to trial because it assigned to the trial judge, not the jury, the authority to make factual findings that subject the defendant to the possibility of an upper term. (127 S.Ct. at page 871.)
“The United States Supreme Court has recognized two exceptions to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the [statutory] maximum authorized by the jury’s verdict. [Citation.] Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. [Citations.]” (People v. Sandoval (2007)41 Cal.4th 825, 836-837.) People v. Black (2007) 41 Cal.4th 799construed the Apprendi prior conviction exception broadly to include “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Black, at p. 819.) Moreover, “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to a jury trial.” (Black, at p. 812.)
Here, the court properly based its imposition of the upper term on defendant’s record of prior convictions, a factor that alone was sufficient to justify the upper term based on defendant’s recidivism.
IV. Sentencing on Defendant’s Prior Strike
The People contend the court erred in failing to double defendant’s burglary sentence pursuant to section 1170.12, subdivision (c)(1), which provides: “If a defendant has one prior felony conviction that has been pled and proved, the determinate term . . . shall be twice the term otherwise provided as punishment for the current felony conviction.”
At the sentencing hearing, defense counsel acknowledged that defendant had two prior strike convictions, but asked the court to suspend execution of sentence, and place defendant on probation in the Delancy Street program. The People argued that defendant should be sentenced to the maximum 18-year term.
After denying probation the court stated, “I can’t strike the [section 667, subdivision (a)], but I am going to stay the strike. But I am aggravating you. And I have the basis to do that. [¶] So what I am going to do in this case, I am not going to double it. And the People can take me up on this if they choose to. But I think that there are circumstances because the prior was a robbery, this is a first degree — although those are both considered serious felonies, they are not long after your previous incarcerations, but I am still going to exercise my discretion. I am still going to impose the aggravated [term] of six [years] . . . .” After stating it was imposing a five-year enhancement under section 667, subdivision (a), and a one-year enhancement under section 667.5, subdivision (b), the court stated, “I am exercising my discretion to strike the strike. So, therefore, total time in custody would be 12 years as opposed to the [district attorney’s] recommendation of . . . 18 years.” Thereafter, in imposing sentence the court stated, “I am going to exercise my discretion, and I am going to strike under People v. Williams [(1998) 17 Cal.4th 148] and People v. [Superior Court (Romero) (1996) 13 Cal.4th 497]the strike allegation over the People’s objection. . . . [¶] Therefore, . . . I am going to impose the aggravated six years for the burglary [count].” The court imposed the aggravated three year term on the receipt of stolen property count, which it stayed under section 654.
The People concede that at the sentencing hearing the court stated its intention to strike defendant’s prior strike conviction, but argue the court’s failure to state any reasons for doing so rendered any intended dismissal “ineffective” and “invalid.” The People argue that because the court neither sentenced defendant on the prior strike conviction nor validly dismissed it, defendant’s sentence is unauthorized and this court should order it modified to reflect a 12-year term for burglary.
Defendant responds that the court exercised its discretion and struck the prior strike conviction pursuant to section 1385. He asserts that his sentencing memorandum, the probation report and the sentencing report prepared by the Center on Juvenile and Criminal Justice provide substantial evidence for the court’s striking of the prior strike, and he urges us to remand the matter to the trial court for a clear statement of its reasons for striking the prior strike.
Section 1385 imposes a mandatory requirement that a court set forth in writing its reasons for dismissal of an action. (People v. Superior Court (Pipkin) (1997) 59 Cal.App.4th 1470, 1476.) Without a statement of reasons in the minutes, there is no effective order under section 1385. (Romero, supra, 13 Cal.4th at p. 524; People v. Orin (1975) 13 Cal.3d 937, 944.) “Section 1385 anticipates, and facilitates appellate review with the requirement that ‘[t]he reasons for the dismissal must be set forth in an order entered upon the minutes.’ ” (Romero, at p. 531, quoting § 1385, subd. (a).)
Consistent with the principles articulated in Romero, the cause must be remanded for the trial court to set forth in writing in the minutes its reasons, if any, for striking the prior strike. The written statement of reasons will be subject to appellate review. (Pipkin, supra, 59 Cal.App.4th at p. 1478.)
V. The One-Year Prior Prison Term Enhancement Should Have Been Stayed
In his supplemental appellate brief, defendant contends the trial court erred in imposing a five-year term for his prior conviction pursuant to section 667, subdivision (a), and a consecutive one-year term for the prior prison term pursuant to section 667.5, subdivision (b). In reliance on People v. Jones (1993) 5 Cal.4th 1142, 1147-1150, defendant asserts that the two enhancements cannot both be imposed because they are both based on the same robbery conviction. In Jones, the Supreme Court concluded, “[T]he most reasonable reading of subdivision (b) of section 667 is that when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply.” (Id. at p. 1150.) The Jones court remanded “with directions to strike the one-year enhancement . . . under subdivision (b) of section 667.5.” (Id. at p. 1153.)
The People correctly concede that the imposition of a legally unauthorized sentence may be challenged for the first time on appeal. (People v. Scott (1994) 9 Cal.4th 331, 354.)
Again in reliance on Jones, defendant argues that the proper remedy for the court’s sentencing error is to remand the matter with directions to strike the one-year section 667.5, subdivision (b) enhancement. (People v. Jones, supra, 5 Cal.4th at p. 1153.) The People rely on People v. Lopez (2004) 119 Cal.App.4th 355 and rule 4.447 in arguing that the proper remedy is to stay execution of the section 667.5, subdivision (b) enhancement.
People v. Lopez, supra, 119 Cal.App.4th at page 364 stated, “Jones,however, did not actually discuss whether striking the unused [section 667.5, subdivision (b)] enhancement finding was the appropriate remedy. . . . Moreover, it is not at all clear whether the court intended to strike the enhancement finding or the punishment for the enhancement. Since the trial court had sentenced the defendant to a separate and consecutive term for each enhancement, certainly the court had to do something to eliminate the excess punishment. Thus, Jones is not authority for the proposition that an unused enhancement finding must be stricken. [¶] The correct procedure would have been to impose a sentence on the barred enhancement, but then stay execution of that sentence,” pursuant to rule 4.447. As noted by Lopez, rule 4.447 is intended “to avoid violating a statutory prohibition or exceeding a statutory limitation, while preserving the possibility of imposition of the stayed portion should a reversal on appeal reduce the unstayed portion of the sentence. [Citation.]” (Lopez, at p. 364; Advisory Com. Com., 23 pt. 1B West’s Ann. Codes, Ct. Rules, supra, foll. rule 4.447, p. 325.)
Subsequent to the Lopez decision, rule 4.447 was amended effective January 1, 2007, with no substantive effect. (See Historical Notes, 23 pt. 1B West’s Ann. Codes, Ct. Rules (2006 ed.) foll. rule 4.447, p. 325.) Rule 4.447 provides, “No finding of an enhancement may be stricken or dismissed because imposition of the term either is prohibited by law or exceeds limitations on the imposition of multiple enhancements. The sentencing judge must impose sentence for the aggregate term of imprisonment computed without reference to those prohibitions and limitations, and must thereupon stay execution of so much of the term as is prohibited or exceeds the applicable limit. The stay will become permanent on the defendant’s service of the portion of the sentence not stayed.”
In People v. Walker (2006) 139 Cal.App.4th 782, 794, fn. 9, the trial court declined to impose both a section 667, subdivision (a) enhancement and a section 667.5, subdivision (b) enhancement, but neither struck nor imposed and stayed the unused 667.5, subdivision (b) enhancement. Walker agreed with Lopez that the trial court should have imposed the section 667.5, subdivision (b) enhancement, and then stayed it. (Walker, at p. 794, fn. 4.)
We agree with both Lopez and Walker that the proper remedy is to impose the section 667.5, subdivision (b) enhancement and then stay its execution, and direct the trial court to do so on remand. The stay shall become permanent upon defendant’s service of the unstayed portion of his sentence. (See People v. Walker, supra, 139 Cal.App.4th at p. 794, fn. 9.)
DISPOSITION
The matter is remanded with directions to the trial court to set forth in writing its reasons for striking the prior strike allegation in accordance with section 1385, and to impose and then stay execution of the section 667.5, subdivision (b) enhancement. We further direct the trial court to prepare an amended abstract of judgment and forward a certified copy of the amended abstract to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur. JONES, P.J., REARDON, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.