Opinion
H043933
06-06-2018
THE PEOPLE, Plaintiff and Respondent, v. CODY SAKOMAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Cruz County Super. Ct. No. F27718)
Cody Sakoman was convicted by a jury of driving a vehicle without permission, carjacking, and two counts of evading a peace officer. During deliberations the jurors requested that certain trial testimony be read back to them, but before the trial court responded to their request the jury returned guilty verdicts. Defendant argues the trial court erred by not sua sponte asking the jurors whether they still wanted the testimony read back to them before delivering their verdicts. Defendant also contends that the trial court erred by not awarding him presentence conduct credit. Though we find no error regarding the trial court's treatment of the jury's readback request, we will reverse the judgment and remand the matter for calculation of defendant's presentence conduct credit.
I. TRIAL COURT PROCEEDINGS
Defendant's criminal charges stemmed from his unauthorized use of two vehicles one afternoon in October 2014.
A. THE VOLVO CHASE
A California Highway Patrol sergeant testified that he was on patrol around noon in Santa Cruz when a Volvo SUV passed him matching the description of a vehicle reported stolen. The sergeant was part of the Santa Cruz Auto Theft Reduction and Enforcement task force. A man identified later as Timothy Staley was driving the Volvo. When the Volvo turned into a motel parking lot, the sergeant drove his unmarked patrol car past the lot, alerted other officers, and positioned his car so that he could watch the parking lot entrance.
An inspector for the Santa Cruz County District Attorney's Office testified that he drove through the motel parking lot in an unmarked car in response to the CHP sergeant's report and saw a person (identified at trial as defendant) get into the Volvo. Defendant drove the Volvo out of the parking lot. The inspector followed in his car, but lost contact after a few minutes when defendant ran a red light.
A Santa Cruz police officer testified that the Volvo next passed in front of his marked patrol car. The officer turned on his lights and siren and chased the Volvo a short distance before losing contact when the Volvo turned a corner. A second Santa Cruz police officer testified about picking up the chase in another marked patrol car. The officer observed the Volvo swerve into oncoming traffic, run a red light, and maintain speeds over 60 miles per hour in a 25-mile-per-hour zone. The officer chased the Volvo with his lights and siren on, but the Volvo never stopped. The officer ultimately stopped his chase in the interest of public safety.
The Volvo was later recovered and processed for fingerprints. An expert in latent fingerprint identification testified that several fingerprints in the Volvo matched defendant. A rifle was also discovered in the Volvo's back seat.
B. THE TOYOTA CARJACKING
The same afternoon as the Volvo chase, Oscar Ayala walked out to his Toyota truck that was parked at the mobile home park where he lived. (The mobile home park was about a half-mile from where the Volvo would later be discovered.) Ayala opened the driver's side door to look for some paperwork, heard what sounded like someone jumping over the exterior fence of the park, and saw a man approach him. The man told Ayala to give him the keys to the Toyota. The man seemed angry. When Ayala refused to comply, the man grabbed him very hard and hit him on his forearm, bicep, and elbow. Ayala continued to resist, and the man grabbed him by the back of the neck and also wrapped his arms around Ayala. Ayala eventually gave the man the keys, and the man drove off in the Toyota. Ayala yelled to his wife and daughter to call 911 after the man left, and police arrived about five minutes later. Ayala stated that his only injuries were "psychological," but also acknowledged sustaining bruises on his arm from the interaction.
Ayala's in-court identification of defendant as the man who took his truck was initially equivocal. He agreed that the man who took his Toyota was in court, but then answered "I don't see him" when the prosecutor asked Ayala to identify him. After a follow up question, Ayala said: "It's him?" Upon further questioning, Ayala ultimately indicated that defendant was the man who took his Toyota but that "he looks different." Ayala also acknowledged that a few days before the carjacking he had gone to the hospital complaining about memory issues, but that he had not experienced any memory problems since that hospital visit.
C. THE TOYOTA CHASE AND AYALA'S IN-FIELD IDENTIFICATION
A Santa Cruz police sergeant learned about the carjacking from a dispatcher and set up his marked patrol car at an intersection he thought defendant might use. The Toyota passed the intersection within 20 minutes after the sergeant heard the carjacking report, and the officer chased the truck with his lights and siren on. The Toyota exceeded the speed limit and did not stop at stop signs. The driver eventually got out of the truck and ran onto Seabright beach. The sergeant drove his patrol car onto the beach until it became stuck in the sand, and then followed the driver on foot while instructing other officers via radio to position themselves on top of the cliff where he thought the driver might run. The driver ran up the cliff, and by the time the sergeant got to the top other officers had detained the driver. Defendant was identified by one of the arresting officers at trial as the driver.
The Santa Cruz County sheriff's deputy who had initially responded to Ayala's residence learned from a dispatcher that a suspect was in custody. He drove Ayala and Ayala's daughter (who provided Spanish translation assistance for her father) to the area where defendant had been detained. With Ayala's daughter translating, the deputy provided what he described at trial as the "witness admonishment that we commonly give to folks." He admonished Ayala that the person he would see may or may not be associated with the crime, and that Ayala should not feel pressured to make a decision.
Ayala testified that the in-field identification took place about 30 minutes after the carjacking. He rode with a peace officer and was asked to look at a man. He positively identified defendant as the person who had taken his Toyota, based on recognizing defendant's facial features and also because Ayala believed defendant was wearing one of Ayala's jackets that he had left in the truck. When defendant was searched incident to arrest, officers found the key to the stolen Volvo in his pocket.
D. TRIAL AND SENTENCING
Defendant was charged with driving a vehicle without permission (Veh. Code, § 10851, subd. (a)); two counts of evading a peace officer with willful disregard for public safety (Veh. Code, § 2800.2, subd. (a)); carjacking (Pen. Code, § 215, subd. (a)); and possessing a firearm as a felon (Pen. Code, § 29800, subd. (a)(1)). The information alleged that defendant had a prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)); a prior strike conviction (Pen. Code, § 667, subds. (b)-(i)); and had served two prior prison terms (Pen. Code, § 667.5, subd. (b)).
The case proceeded to trial, with testimony consistent with the summary we have provided. In the afternoon on the second day of jury deliberations, the court was informed the jury had reached verdicts. When defendant and counsel returned to the courtroom, the court made the following record outside the presence of the jury: "In the late morning, we got sent out the following on the record -- [¶] [']Can we get a copy of the court reporter's -- I'm assuming they meant testimony -- of Officer Kiar, Officer [sic] Ayala, Salome Ayala.['] [¶] And I hadn't had conditions to respond to it until a little before the lunch hour. Before I could respond to that, the bailiff informed me they had reached a verdict. [¶] I never brought them in to see how much they wanted. [¶] At this point, they have a verdict. [¶] I'll still address the question here. I assume they didn't want additional readback at some point. It's their prerogative to request testimony readback or say they don't want it anymore, apparently that's what happened. [¶] The morning calendar was very busy and I wasn't able to clear the box in time to address the jury and have [counsel] come in and address them." (No written request by the jury to have testimony read back is in the record on appeal.) The trial court then brought the jury into the courtroom to read the verdicts. The jury found defendant guilty of driving a vehicle without permission (Veh. Code, § 10851, subd. (a)); carjacking (Pen. Code, § 215, subd. (a)); and two counts of evading a peace officer with willful disregard for public safety (Veh. Code, § 2800.2, subd. (a)). Defendant was found not guilty of possessing a firearm as a felon (Pen. Code, § 29800). Defense counsel did not request that the court ask whether the jury still wanted testimony read back, nor did counsel object to the trial court proceeding without doing so. The parties waived jury on the special allegations, which the trial court found true after a court trial.
The trial court sentenced defendant to 15 years in prison, consisting of 10 years for carjacking (middle term, doubled because of the prior strike conviction (Pen. Code, §§ 215, subd. (b), 667, subd. (e)(1))), and five years for the prior serious felony conviction (Pen. Code, § 667, subd. (a)(1)). The court denied defendant's motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, imposed concurrent middle terms for the other counts, and stayed sentence for the prior prison term enhancement.
In response to a question from the courtroom clerk regarding the sentence for the two prior prison term enhancements alleged, the parties stipulated there had been only one prior prison commitment because the two prison priors were "the same term." A notation on the abstract of judgment suggests the single prior prison term enhancement imposed was to run concurrently, but the trial court stated at sentencing that it would "stay the sentence on the prior prison term."
Defendant received 694 actual days of presentence custody credit. When the court asked if defendant's "good-time/work-time credits" had been calculated, defense counsel responded that "CDC is no longer wanting them," and that they "just want actual credits." Apparently relying on defense counsel's representation, the trial court did not calculate or award any presentence conduct credit.
II. DISCUSSION
A. JURY'S READBACK REQUEST
Defendant argues the trial court violated Penal Code section 1138 by not responding to the jury's request to have testimony read back before the court accepted the verdicts. Penal Code section 1138 provides: "After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called."
1. Defendant Forfeited the Issue by Not Objecting
Defense counsel said nothing when notified by the trial court about the jury's request to have testimony read back followed by the jury's announcement that it had reached verdicts. Defendant argues on appeal that his trial counsel did not forfeit the argument, citing People v. Butler (1975) 47 Cal.App.3d 273 (Butler). (See Butler, at p. 283-284 [finding Penal Code section 1138 argument was not forfeited because the "relative inaction of defense counsel ... cannot attenuate the jurors' fundamental right to be apprised of the evidence upon which they are sworn conscientiously to act."].) But the Supreme Court has expressed "doubts that ... [the Butler court] correctly allowed a defendant to assert a violation of the jury's right to readback of testimony" after trial counsel failed to object. (People v. Hillhouse (2002) 27 Cal.4th 469, 505.) And the Supreme Court found in a later opinion that a defendant's trial counsel's failure to object to a trial court's decision not to respond to a juror's note forfeited the issue on appeal. (People v. Boyette (2002) 29 Cal.4th 381, 430.) Defendant's failure to object here forfeited the Penal Code section 1138 issue.
Defendant does not argue on appeal that his trial counsel provided ineffective assistance by not objecting based on Penal Code section 1138. But in the interest of judicial economy we will nonetheless treat defendant's argument as complaining of ineffective assistance. To establish ineffectiveness of trial counsel in violation of a defendant's right to counsel under the Sixth Amendment to the United States Constitution, defendant must show both that counsel's performance was deficient and that he was prejudiced by the deficiency. (People v. Ledesma (1987) 43 Cal.3d 171, 216-217 (Ledesma).) Deficient performance is rarely shown if there was a tactical reason for trial counsel's conduct, and counsel has no duty to make a meritless objection. (See People v. Cruz (1980) 26 Cal.3d 233, 255-256 ["except in rare cases, an appellate court should not attempt to second-guess trial counsel as to tactics"]; People v. Ochoa (1998) 19 Cal.4th 353, 463 (Ochoa) ["Representation does not become deficient for failing to make meritless objections."].) To prove prejudice defendant must affirmatively show a reasonable probability that, but for his trial counsel's errors, the result would have been different. (Ledesma, at pp. 217-218.)
2. Trial Counsel Did Not Provide Ineffective Assistance
Defendant argues that the trial court's failure to respond to the jury's request "coerced the jury into reaching a verdict and therefore prejudicially affected the outcome of this case." But defendant's argument is based almost exclusively on the concurring and dissenting opinion of a single justice from the Supreme Court's decision in People v. Gonzales (1968) 68 Cal.2d 467 (Gonzales).
In Gonzales, the jury requested readback of certain testimony one afternoon and the court informed it that the court reporter would not be able to provide the information until the next morning. (Gonzales, supra, 68 Cal.2d at p. 472.) The trial court instructed the jurors to continue deliberating, "but that, if it was impossible to do so until the testimony was available, they could stop deliberating until the next morning." (Ibid.) The jury chose to continue deliberating, and returned a verdict shortly thereafter. The Supreme Court found the trial court "did not err in receiving the verdict without reading the testimony to the jury" because it "appears that before the court was able to fulfill the request the jury manifestly decided that the reading of the testimony was unnecessary." (Id. at pp. 472-473.) One justice dissented, reasoning that the trial court coerced the jury into reaching a verdict because "it would require unusual stamina on the part of one or more dissenting jurors to stand on their rights to review the evidence against the remaining jurors who would, of course, be more than somewhat rebellious at the thought of being locked up for the night at 3:30 in the afternoon." (Id. at p. 474, dis. opn. of Peters, J.) No other justice joined the dissent.
Defendant argues Gonzales is factually distinguishable because here "there was no indication to the jury from the court that it had received the jury request and intended to comply with it." Though we acknowledge that factual distinction, we do not find it legally significant. As the majority opinion in Gonzales explained, it is reasonable to infer that in returning verdicts the jury unanimously concluded that review of the previously requested testimony was no longer necessary. (Gonzalez, supra, 68 Cal.2d at pp. 472-473.)
Butler, supra, 47 Cal.App.3d 273, provides an example of the sort of error that Penal Code section 1138 is meant to prevent. In that case, the jury requested readback of the testimony of several trial witnesses and the trial court denied the request. (Butler, at p. 277.) The trial court told the jury: to have a court reporter "reread what you have asked to be reread would perhaps take a full day. And you I trust will go back into the jury room and do your very best to arrive at a verdict based on the information that you have. Thank you for making the request, but it has to be denied. Go back and give it a good try." (Id. at p. 279.) In reversing, the Butler court reasoned that refusing to have testimony read back to the jury amounted to "jury coercion as opposed to a helpful attempt to accede to the jury's request in a manner reasonable under the exigencies of the situation." (Id. at p. 283.)
Unlike in Butler, the trial court here did not deny the jury's request to have testimony read back, but had simply not yet responded to the jury. The request arrived in the "late morning," and the trial court was apparently planning to address the issue promptly that afternoon until it learned that the jury had reached verdicts. Though it may have been advisable for the trial court to confirm the request was moot before the verdicts were read in order to resolve any doubt about the jury's deliberations, the trial court's decision not to do so did not violate Penal Code section 1138. And as there was no Penal Code section 1138 violation, we see no deficiency in trial counsel's performance. (See Ochoa, supra, 19 Cal.4th at p. 463.)
B. PRESENTENCE CONDUCT CREDIT
Defendant argues the trial court erred by not awarding defendant any presentence conduct credit, and alternatively contends his trial counsel provided ineffective assistance by inviting the trial court not to calculate those credits. The People contend that defendant forfeited the issue and further contend, based on defense counsel telling the trial court the Department of Corrections and Rehabilitation "just want[s] actual credits," that defendant should be estopped from seeking presentence conduct credit on appeal. Regardless of any error invited by defense counsel, the trial court had a duty to calculate defendant's presentence conduct credit.
Penal Code section 1237.1 provides: "No appeal shall be taken by the defendant from a judgment of conviction on the ground of an error in the calculation of presentence custody credits, unless the defendant first presents the claim in the trial court at the time of sentencing, or if the error is not discovered until after sentencing, the defendant first makes a motion for correction of the record in the trial court." Though judicial economy would have been better served had defendant here first moved to correct the credit issue in the trial court before raising it on appeal, "[w]e reach the issue of presentence custody credit ... because it is not the only issue on appeal." (People v. Jacobs (2013) 220 Cal.App.4th 67, 71, fn. 2.)
"Everyone sentenced to prison for criminal conduct is entitled to credit against his term for all actual days of confinement solely attributable to the same conduct." (People v. Buckhalter (2001) 26 Cal.4th 20, 30 (Buckhalter).) It is the duty of the "court imposing the sentence" to determine not only a defendant's actual days of presentence confinement but also any applicable conduct credit. (Pen. Code, § 2900.5, subd. (d); accord Buckhalter, at p. 30.) The sentencing court must ensure that a defendant's total presentence custody credit is accurately reflected on the abstract of judgment. (Buckhalter, at p. 30.) Penal Code section 4019 provides the general formula for calculating presentence conduct credit (i.e., two days' conduct credit for each two days of actual custody). (Pen. Code, § 4019, subd. (f).) But presentence conduct credit for individuals who are convicted of a violent felony listed in Penal Code section 667.5, subdivision (c)—like defendant's carjacking conviction here (Pen. Code, § 667.5, subd. (c)(17)—"shall not exceed 15 percent of the actual period of confinement." (Pen. Code, § 2933.1, subd. (c).)
We acknowledge that defendant's trial counsel incorrectly advised the trial court that it did not need to calculate defendant's conduct credit. But the trial court had an independent statutory duty to calculate those credits and include them in the abstract of judgment. Because the trial court failed to calculate those credits and defendant's appellate briefing does not include a calculation of what he believes his credits should be, we will remand the matter for the limited purpose of allowing the trial court to calculate defendant's presentence conduct credit.
III. DISPOSITION
The judgment is reversed and the matter is remanded to the trial court for the limited purpose of recalculating defendant's presentence custody credit, which shall include conduct credit under Penal Code section 2933.1, subdivision (c). The new abstract of judgment shall also reflect the trial court's decision to stay sentence on the prior prison term enhancement (Pen. Code, § 667.5, subd. (b)). The trial court is directed to prepare an amended abstract of judgment reflecting those modifications and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
/s/_________
Grover, J.
WE CONCUR:
/s/_________ Greenwood, P. J. /s/_________ Premo, J.