Opinion
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County, No. MA038357, Lisa M. Chung, Judge.
Gene D. Vorobyov, under appointment by the Court of Appeal, for Defendant and Appellant Courtney Deonta Thurman.
Barbara A. Smith, under appointment by the Court of Appeal, for Defendant and Appellant Fernando Vernell Brooks.
Edmund G. Brown, Jr., Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Defendants Fernando Brooks and Courtney Thurman were tried together by two separate juries. The jury hearing Brooks’s case convicted him of attempted first degree robbery and conspiracy to commit first degree robbery. The trial court sentenced him to state prison and imposed various fees and penalties. Brooks appeals from the conviction and his sentence. He claims that a combination of instructional error, prosecutorial misconduct and discovery abuse culminated in an unfair trial, requiring reversal.
A separate jury convicted defendant Courtney Thurman of attempted first degree robbery and conspiracy to commit first degree robbery. The trial court also sentenced Thurman to state prison and imposed various fees and penalties. Thurman challenges his sentence. He claims the trial court failed to exercise its discretion with respect to probation because the court mistakenly believed Thurman was ineligible for probation.
Both Brooks and Thurman argue their abstracts of judgment must be amended to correct errors with respect to the sentences imposed.
We agree that the abstracts of judgment—as well as the judgments themselves—must be amended to correct various errors with respect to penalties and to reflect the proper midterm sentence on defendants’ convictions for attempted first degree robbery. We disagree, however, that the convictions or judgments should otherwise be reversed. Accordingly, we reverse with directions that the trial court correct the various errors discussed below, but in all other respects, we affirm.
Background
On April 21 and 22, 2007, Tershaunda Jasper and her boyfriend Jose Renteria were staying at a house on Schollview Avenue in Lake Los Angeles, which was owned by Jasper’s brother, Robert. Robert also owned a house on Catania Court in Palmdale, where Jasper and Renteria had also stayed. At trial, it was unclear how long Jasper and Renteria had been at the Schollview house or how long they planned to stay. It was undisputed, however, that they were staying there on April 21 and 22, 2007 because they wanted some privacy when other guests were visiting at the Catania house. It was also undisputed that Jasper’s brother used the Schollview house as a marijuana grow house.
Around 4:30 a.m. on April 21, 2007, Jasper called the police because she heard a loud noise and banging at the door of the Schollview house. She and Renteria went outside to investigate, but did not see anyone. The police arrived hours later.
Again, in the early morning hours of April 22, 2007, someone knocked on the front door of the Schollview house. Jasper and Renteria went to see who it was. A woman was at the door. She claimed she needed help with her car and asked Jasper and Renteria to come outside. Jasper and Renteria were suspicious for many reasons, including that it was in the middle of the night in a rural area, the woman was holding a cell phone that appeared to work, and just the night before they had heard banging on the door. When Renteria asked the woman why she did not use her phone to call for help, the woman started crying. Suddenly, a man came toward the house. He pointed a gun at Jasper and Renteria, who quickly closed the door. Jasper called 911.
Deputy Harbeson responded to the call and spoke with Jasper and Renteria at the Schollview house. As he and his partner searched for the suspects, they came across a parked Hummer near the house. Four people were inside the car—defendant Brooks, defendant Thurman, Erin Baxter and Troy Ellis. The deputies also found inside the car scissors, gloves, binoculars, travel bags with LAX tags containing plastic trash bags, and three loaded guns. Jasper and Renteria identified Baxter as the woman who had come to their door claiming car trouble and Brooks as the man who came toward them with a gun.
Baxter and Ellis were also charged in the information, but were tried separately from Brooks and Thurman.
1. Further evidence presented only to the Brooks jury.
Deputy Harbeson interviewed Brooks, who admitted he had participated in the attempted robbery. Brooks stated he and the three others planned to rob the house because it was a marijuana grow house and he had purchased marijuana there the week before from a man named Robert. They planned to steal marijuana. Brooks denied, however, that he was the person who approached the house with a gun. He also denied any knowledge of the guns found in the car.
Brooks called Deputy Sheriff Wagner to testify. Deputy Wagner had executed a search warrant at the Schollview house following the April 22 incident. He testified that, in his opinion, the Schollview house was a marijuana grow house. He testified that one of the indicators of this was a video camera found at the front door. Deputy Wagner also executed a search warrant at the Catania house, where he interviewed Jasper. Although he could not remember her exact words, his notes indicated that Jasper told him she had been renting the Schollview house from her brother for a month. Before trial, Jasper stated to a district attorney investigator that, after the attempted robbery, “[Robert] came to take me away because, you know, I am not even supposed to be there.”
2. Further evidence presented only to the Thurman jury.
Thurman told Deputy Harbeson that Thurman was Brooks’s cousin and Ellis was Brooks’s friend. Thurman told Deputy Harbeson that he was visiting from Chicago. Thurman repeatedly denied knowledge of both the attempted robbery and the guns and bags found in the car. Finally, however, Thurman admitted that the group had planned to commit a robbery at the Schollview house because someone there had “ripped off” Ellis during a marijuana purchase.
3. Verdicts
The Brooks jury found Brooks guilty on count 1 of attempted first degree robbery in violation of sections 664 and 211 and on count 11 of conspiracy to commit first degree robbery in violation of section 182, subdivision (a)(1). The jury also found true the allegations that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1), the dwelling was inhabited, and that Brooks acted in concert. However, the jury found not true the special allegation that Brooks had personally used a firearm within the meaning of section 12022.53, subdivision (b).
Unless otherwise noted, all section references are to the Penal Code. In addition to the conspiracy to commit first degree robbery and attempted first degree robbery charges, the information also charged Brooks with possession of a firearm by a felon in violation of section 12021, subdivision (a)(1) [count 2] and possession of ammunition in violation of section 12316, subdivision (b)(1) [count 3]. Brooks pled nolo contendere to those charges.
The Thurman jury similarly found Thurman guilty on count 1 of attempted first degree robbery in violation of sections 664 and 211 and on count 11 of conspiracy to commit first degree robbery in violation of section 182, subdivision (a)(1). The jury also found true the allegations that a principal was armed with a firearm within the meaning of section 12022, subdivision (a)(1), the dwelling was inhabited, and that Thurman acted in concert. There was no allegation against Thurman that he had personally used a firearm.
4. Sentencing
Prior to sentencing, Brooks and Thurman each filed a sentencing memorandum with the court, attaching multiple letters in support of the defendants. At the sentencing hearing, the trial court permitted both Thurman and his mother to make statements. In addition, Thurman’s counsel argued mitigating factors for her client and the prosecutor noted that Thurman had no criminal history. Thurman’s counsel asked the court to impose the low-term sentence of three years and to stay the one-year enhancement. At sentencing, the trial court also had before it a pre-plea probation report for Thurman, which did not include any personal history or personal statement and incorrectly stated that the information alleged Thurman had personally used a firearm within the meaning of section 12022.53, subdivision (b). As a result of the mistaken special allegation against Thurman, the probation report incorrectly stated Thurman was ineligible for probation. Neither the trial court nor counsel requested an updated probation report or otherwise commented on the initial report.
The trial court sentenced Brooks to a total of ten years in state prison, consisting of the upper term of nine years, on count 11 (conspiracy to commit first degree robbery) and one year for the section 12022, subdivision (a)(1) enhancement. On count one (attempted first degree robbery), the trial court imposed a sentence of four years, plus one year for the section 12022, subdivision (a)(1) enhancement, and stayed execution of that sentence pursuant to section 654. The trial court also imposed and stayed the sentences on the remaining counts against Brooks. The court imposed various fees and penalties.
The trial court sentenced Thurman to a total of four years in state prison, consisting of the low term of three years, on count 11 (conspiracy to commit first degree robbery) and one year for the section 12022, subdivision (a)(1) enhancement. On count one (attempted first degree robbery), the trial court imposed a sentence of four years, plus one year for the section 12022, subdivision (a)(1) enhancement, and stayed execution of that sentence pursuant to section 654. The court also imposed various fees and penalties. In sentencing Thurman, the trial court did not mention probation.
Discussion
1. Defendant Brooks
Brooks argues that a combination of factors—instructional error, prosecutorial misconduct and discovery abuse—misled the jury and prejudiced Brooks. In particular, Brooks argues the jury was unable to consider correctly the residential aspect of both the attempted first degree robbery charge and the conspiracy to commit first degree robbery charge. Brooks claims “the entire context of the case resulted in prejudice to Brooks as to the issue of ‘home invasion’ robbery.” We are not persuaded.
As an initial matter, Brooks claims that respondent improperly addressed each element of his argument separately. Although Brooks argues cumulative error, it is nonetheless proper to address each alleged error separately to discern whether any errors were made. If no individual errors were made, Brooks’s argument fails. Thus, we first address each element in turn. We then determine whether as a whole they prejudiced Brooks.
a. Instructional error
Brooks argues the trial court did not adequately instruct the jury on what constitutes a dwelling for purposes of a home invasion robbery. The trial court instructed the jury that a “dwelling is inhabited if someone lives there and either is present or has left but intends to return.” Brooks asserts a further clarifying instruction was necessary in light of evidence that the house in question was used to conduct a business, namely growing marijuana. He does not claim, however, that the instructions given were incorrect as a matter of law. “A party may not argue on appeal that an instruction correct in law was too general or incomplete, and thus needed clarification, without first requesting such clarification at trial.” (People v. Hillhouse (2002) 27 Cal.4th 469, 503. See also People v. Hardy (1992) 2 Cal.4th 86, 153.) Thus, because Brooks failed to raise this objection below, he has waived it on appeal.
b. Prosecutorial misconduct
As part of his cumulative error argument, Brooks also asserts the prosecutor made inaccurate, misleading and prejudicial comments during argument. He claims he did not object to each and every one of the alleged acts of misconduct because it would have been futile to do so.
“When the issue ‘focuses on comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.’ [Citations.] A prosecutor is given wide latitude during closing argument. The argument may be vigorous as long as it is a fair comment on the evidence, which can include reasonable inferences or deductions to be drawn therefrom.... ‘A defendant’s conviction will not be reversed for prosecutorial misconduct... unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct.’ [Citation.]” (People v. Harrison (2005) 35 Cal.4th 208, 244.) Under the federal standard, a conviction will be reversed if prosecutorial misconduct infected the trial with such unfairness that the resulting conviction was a denial of the defendant’s due process. (People v. Crabtree (2009) 169 Cal.App.4th 1293, 1316.)
Although Brooks did not object at trial to all of the statements he now claims were improper, we have considered his objections on appeal and conclude they are without merit. His objections fall within one of two categories. First, Brooks claims the prosecutor misstated the law. Brooks points to, for example, the prosecutor’s argument to the jury that “because it’s a residential robbery, you just have to find that it was at a house, and that’s about it.” Second, Brooks claims the prosecutor misstated the evidence. For example, Brooks asserts that, in closing, the prosecutor incorrectly and improperly stated Detective Harbeson believed Brooks was guilty of residential robbery.
Brooks also claims the prosecutor incorrectly argued to the jury that the reasonable doubt standard is not a hard standard to meet. In making this argument, however, Brooks omits the entirety of the prosecutor’s statements with respect to that standard. The prosecutor accurately stated that “reasonable doubt is proof that leaves you with an abiding conviction that the charge is true.” The trial court instructed the jury on the standard as well.
Despite these allegedly improper statements, however, the trial court correctly instructed the jury on the law, including the elements of a home invasion robbery. The trial court also instructed the jury that argument by counsel is not evidence and, if counsel’s statements conflict with the instructions given, the instructions govern. Thus, we conclude that any improper statements by the prosecutor did not infect the trial such that Brooks was denied his right to due process. (See People v. Crabtree, supra, 169 Cal.App.4th at p. 1316.) Similarly, we conclude it is not reasonably probable that Brooks would have received a more favorable result absent the alleged misconduct. (See People v. Harrison, supra, 35 Cal.4th at p. 244.)
c. Discovery
Also as part of his cumulative error argument, Brooks summarily asserts the prosecution failed to provide timely discovery that the house at issue had a surveillance camera. Brooks claims the trial court erred in not instructing the jury as to the parties’ duties with respect to discovery and informing the jury of the untimely disclosure of evidence. Brooks cites no authority for this argument. Indeed, he explains this is not “a separate substantive argument at all.” It is unclear to us, however, how we are to assess the alleged error if it is not explained or supported by authority. “We need not consider such a perfunctory assertion unaccompanied by supporting argument.” (People v. Smith (2003) 30 Cal.4th 581, 616, fn. 8.) In any event, as respondent points out, Brooks examined Deputy Wagner at trial as to the surveillance camera and the trial court had reason to refuse an instruction on this point.
d. No cumulative error or prejudice
Having considered the various elements of Brooks’s cumulative error argument, we now consider whether there was in fact cumulative error such that Brooks was denied a fair trial. We conclude there was not. Whether considered independently or together, any errors or assumed errors were not prejudicial and did not undermine defendant's conviction. (People v. Watson (2008) 43 Cal.4th 652, 704.)
2. Defendant Thurman
a. Probation
Thurman claims the trial court operated under the mistaken belief that Thurman was ineligible for probation. Thus, Thurman argues the trial court did not consider probation and erred in not exercising its discretion at all in that regard. We disagree.
The trial court has broad discretion in determining whether to grant or deny probation. (People v. Carbajal (1995) 10 Cal.4th 1114, 1120.) Thus, generally we will not disturb the trial court’s denial of probation unless it is shown that the court exercised its discretion in an arbitrary or capricious manner or exceeded the bounds of reason given all the facts and circumstances of the case. (People v. Weaver (2007) 149 Cal App.4th 1301, 1311.) However, if it appears the trial court denied probation on an erroneous impression of the defendant’s legal status (e.g., that the defendant was legally ineligible for probation), we will remand for resentencing so that the trial court may exercise its discretion in the first instance. (See People v. Ruiz (1975) 14 Cal.3d 163, 168.)
As an initial matter, we address respondent’s waiver argument. Respondent claims that, because Thurman did not object below to the trial court’s failure to discuss probation or its failure to state reasons for denying probation, Thurman has waived that argument on appeal. In support of its position, respondent cites cases holding that, when a defendant fails to object to the trial court’s discretionary sentencing choices, the defendant waives that objection. (E.g., People v. Scott (1994) 9 Cal.4th 331, 356 [“we hold that complaints about the manner in which the trial court exercises its sentencing discretion and articulates its supporting reasons cannot be raised for the first time on appeal”].) “Defects in sentences should be brought to the trial judge's attention in time to correct them, not remedied during a lengthy appellate process.” (People v. Planavsky (1995) 40 Cal.App.4th 1300, 1302.) We conclude, however, that these cases do not apply here. Thurman’s argument is not that the trial court abused its discretion in denying probation. Rather, Thurman argues the trial court failed to exercise its discretion at all. Thus, we conclude the argument is not waived.
We are not persuaded, however, that the trial court believed Thurman was ineligible for probation. Thurman bases his argument on the fact that the probation report prepared before trial stated Thurman was ineligible for probation and on the fact that neither the trial court nor counsel mentioned probation as an option at the sentencing hearing. This is insufficient, however, to demonstrate that the trial court failed to exercise its discretion with respect to probation.
An affirmative showing is required. (People v. Weaver, supra, 149 Cal.App.4th at p. 1318 [“unless the record affirmatively shows otherwise, a trial court is deemed to have considered all relevant criteria in deciding whether to grant or deny probation or in making any other discretionary sentencing choice”]; People v. Myers (1999) 69 Cal.App.4th 305, 310 [“The court is presumed to have considered all of the relevant factors in the absence of an affirmative record to the contrary.”]; Cal. Rules of Court, rule 4.409.) Here, the record does not affirmatively show that the trial court failed to consider all relevant factors in determining whether to grant or deny probation. Thus, although the pre-plea probation report incorrectly stated Thurman was ineligible for probation, we presume the trial judge—who presided over both the trial and sentencing—was aware that Thurman was not charged with a section 12022.53, subdivision (b) special allegation and, therefore, that Thurman was eligible for probation.
To the extent Thurman argues the trial court should have articulated its reasons for denying probation, which then would have demonstrated the court’s exercise of discretion, Thurman did not raise this argument below. Accordingly, Thurman has waived that issue on appeal. (People v. Scott, supra, 9 Cal.4th at p. 353.)
People v. Manriquez (1991) 235 Cal.App.3d 1614 does not help Thurman. In Manriquez, the defendant pled guilty and it was clear “the trial court relied exclusively on [the probation] report,” which incorrectly stated the defendant was ineligible for probation. (Id. at p. 1620. See also People v. Alvarez (2002) 95 Cal.App.4th 403.) The same cannot be said here, where Thurman did not plead guilty, but went to trial. In addition to the probation report (which admittedly included incorrect sentencing information) and the information filed against Thurman (which accurately reflected the charges and allegations against him), the trial court had before it the evidence presented at trial, the jury’s verdict, Thurman’s sentencing memorandum, which included multiple letters supporting Thurman, and statements made at the sentencing hearing.
Accordingly, in the absence of an affirmative record to the contrary, we conclude the trial court considered probation and exercised its discretion in denying probation. Because Thurman does not argue it was an abuse of discretion to deny probation, we do not reach that issue.
b. Consideration of probation report
Thurman correctly notes that the trial court erred in not stating on the record that it had considered the probation report. Section 1203, subdivision (b)(3) requires the trial court to make such a statement.
Despite this error, however, we conclude remand is not necessary because the record otherwise indicates the trial court read or considered the information provided in the report. (People v. Gorley (1988) 203 Cal.App.3d 498, 506.) “Although the court’s power concerning probation is strictly statutory [citation], and the statutory directive is mandatory, procedural error in passing upon probation does not deprive the court of jurisdiction.” (Id. at p. 505 [criticizing People v. Williams (1963) 223 Cal.App.2d 676, upon which Thurman relies].) Here, the minute order from the sentencing hearing states “The court has read and considered the probation report dated 5-24-07.” Thus, while the trial court did not orally state on the record that she had considered the probation report, we conclude that she did read and consider the report and the error was harmless. (People v. Gorley, supra, 203 Cal.App.3d at p. 506.)
Thurman urges us to resolve any conflict between the reporter’s transcript and the court’s minute order in favor of the reporter’s transcript. But there is no conflict because the reporter’s transcript is silent on the issue. (See People v. Smith (1983) 33 Cal.3d 596, 599 [conflicts in record should be harmonized when possible].)
c. Failure to request a new probation report
Thurman also argues we must remand for resentencing because the trial court did not request a supplemental probation report before sentencing. Respondent claims (i) Thurman waived this argument because he failed to raise it below, (ii) the trial court was not required to order an additional probation report, and (iii) any error was harmless. Assuming, without deciding, that Thurman has not waived this argument and that the trial court was required to request a supplemental report, we conclude any error in this regard was harmless.
Because failing to order a probation report implicates only California statutory law, review is governed by the Watson harmless error standard. (People v. Dobbins (2005) 127 Cal.App.4th 176, 182 (“Dobbins”); People v. Watson (1956) 46 Cal.2d 818.) Thus, we will not reverse unless it is reasonably probable that a result more favorable to Thurman would be reached if a supplemental probation report were ordered. (Dobbins, supra, 127 Cal.App.4th p. 182.)
Considering the facts of this case, we cannot say there is a reasonable probability that Thurman would receive a more favorable result if a supplemental probation report were ordered. First, the same trial judge presided over the trial and the sentencing hearing. She was intimately familiar with the facts of the case, including mitigating facts (such as Thurman’s limited involvement, minor criminal history, family support and father’s tragic death) and aggravating facts (such as the number of guns and other items found in the car and the great potential for violence). Second, the trial court considered mitigating factors that Thurman presented on his behalf. For example, Thurman filed a sentencing memorandum, which included supporting letters from his family. At the sentencing hearing, the trial court also heard statements from Thurman and his mother, as well as defense counsel’s argument setting forth mitigating circumstances. Counsel’s failure to present further mitigating facts or information is a good indication that no further mitigating facts existed. Third, Thurman was in custody during trial and pending sentencing.
This case is different from cases where courts have reversed a defendant’s sentence and remanded for preparation of an updated probation report and resentencing. Such cases involve, for example, probation reports over a year old (e.g., People v. Mercant (1989) 216 Cal.App.3d 1192, 1194 [most recent probation report was three years old]; People v. Mariano (1983) 144 Cal.App.3d 814, 821 [most recent report was over two years old]; People v. Rojas (1962) 57 Cal.2d 676, 682 [most recent probation report was 15 months old]), or a defendant who was not incarcerated pending sentencing (e.g., People v. Conners (2008) 168 Cal.App.4th 443, 456, fn. 5 (“Conners”); People v. Mercant, supra, 216 Cal.App.3d at p. 1195; People v. Rojas, supra, 57 Cal.2d at p. 683).
Division Eight’s Conners decision is further distinguishable. There, for example, the trial court requested a supplemental probation report, but one was never prepared. (Conners, supra, 168 Cal.App.4th at p. 451.) Also, although the defendant had represented himself at trial, he requested counsel for sentencing. (Ibid.) The trial court appointed defense counsel at the sentencing hearing. Defense counsel then requested a continuance of sentencing so that he could prepare motions and a sentencing memorandum. (Id. at pp. 451-452.) The trial court denied the request and sentenced defendant to prison. In contrast, here, Thurman was represented by counsel throughout trial and sentencing, no one requested a supplemental probation report, and Thurman’s attorney submitted a sentencing memorandum on his behalf.
3. Court construction penalty and court security fee
Brooks and Thurman argue the trial court improperly ordered them to pay court construction penalties. Respondent agrees these penalties were unauthorized and should be stricken. We too agree and hold the court construction penalties imposed against both Brooks and Thurman must be stricken. (Govt. Code, § 70372, subd. (a)(3).)
The trial court also imposed a $20 court security fee on both Brooks and Thurman. (§ 1465.8, subd. (a)(1).) Respondent argues the trial court should have imposed a $20 court security fee against each defendant for every crime for which they were convicted. The court security fee is mandatory and, therefore, respondent can raise the issue for the first time on appeal. (People v. Talibdeen (2002) 27 Cal.4th 1151, 1157.) Subdivision (a)(1) of section 1465.8 mandates the $20 court security fee for “every conviction for a criminal offense.” Despite Brooks’s argument to the contrary, the fee applies to stayed convictions. (People v. Crittle (2007) 154 Cal.App.4th 368, 370-371.) Accordingly, the trial court should have imposed a $20 court security fee for each of defendants’ convictions, whether or not stayed. (People v. Crabtree, supra, 169 Cal.App.4th at pp. 1327-1328.)
4. Sentences on count one
Brooks notes the trial court sentenced him to the mid-term sentence for his conviction on count one for attempted first degree robbery. The mid-term sentence on that count is three years. (§§ 213 and 664.) Although recognizing that the mid-term for attempted first degree robbery is three years, the trial court mistakenly sentenced Brooks to four years on count one. Respondent agrees the mid-term on count one is three years, not four years. We again agree and direct the trial court to amend the judgment and abstract of judgment as to Brooks so that they reflect the proper three-year mid-term sentence for his conviction on count one.
The trial court made the same mistake as to Thurman’s sentence on count one for attempted first degree robbery. Thurman notes he asked the trial court to correct the error and the court clerk indicated the court would correct the error. However, the record before us does not indicate that the trial court has corrected the error. Accordingly, unless it has already been done, we also direct the trial court to amend the judgment and abstract of judgment as to Thurman to reflect the proper three-year mid-term sentence for his conviction on count one.
Disposition
As to defendant Brooks, we direct the trial court to modify the judgment and abstract of judgment (a) to strike the court construction penalties, (b) to impose a $20 court security fee for each of his convictions (for a total of $80), and (c) to reflect the proper mid-term sentence of three years for his conviction on count one.
As to defendant Thurman, we direct the trial court to modify the judgment and abstract of judgment (a) to strike the court construction penalties, (b) to impose a $20 court security fee for each of his convictions (for a total of $40), and (c) to reflect the proper mid-term sentence of three years for his conviction on count one.
In all other respects, the judgments are affirmed.
We concur: MALLANO, P. J., ROTHSCHILD, J.