IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO
December 1, 2010
THE PEOPLE, PLAINTIFF AND RESPONDENT,
SALVADOR ISLAS, JR., DEFENDANT AND APPELLANT.
APPEAL from the Superior Court of Riverside County. Robert W. Armstrong, Judge. (Retired judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed.
The opinion of the court was delivered by: Miller J.
P. v. Islas CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
A jury found defendant Salvador Islas, Jr., guilty of first degree burglary. (Pen. Code, § 459.)*fn1 The trial court sentenced defendant to state prison for a term of four years. Defendant raises two contentions on appeal. First, defendant asserts that he was punished for exercising his federal constitutional right to a jury trial. (U.S. Const., Amend. VI.) Second, defendant contends that the prosecutor committed Griffin*fn2 error by commenting that defendant failed to put forth evidence in his defense. We affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
In February 2009, the victim, his wife, and two children, bought a house in Perris (the house). On February 6 and 7, 2009, the victim's wife cleaned the house. On February 8, 2009, the victim moved some of his belongings into the house. At approximately 6:00 p.m. on February 8, the victim locked the doors and windows of the house and left. On February 9, 2009, the victim returned to the house.
When the victim opened the door of the house, he saw that items had been thrown around the living room, the back door was broken, and the garage door was broken. The victim noticed that clothes were thrown around and boxes were turned upside down. The victim also discovered that some of his tools were missing, and a plasma television, which the victim had placed in a closet, was missing. Additionally, lamps had been thrown against a wall, causing holes. The victim called the police.
Riverside County Sheriff's Deputy Dinh responded to the victim's call. When Deputy Dinh arrived at the house, he noticed that the back door was broken. Deputy Dinh asked the victim to look around the house, in order to see if the intruder left any items behind. The victim pointed to a bottle in the living room/kitchen area. Deputy Dinh dusted the bottle for fingerprints. A fingerprint database listed defendant as the top match for the fingerprints. James Edmonston, a fingerprint examiner, examined the fingerprints, and found that the prints from the bottle matched defendant's fingerprints. A second fingerprint examiner also concluded that the prints from the bottle matched defendant's fingerprints.
1. PROCEDURAL HISTORY
Prior to trial, the trial court addressed defendant. The trial court said the following, "'The prosecution wants prison in this case, but I do not think this case warrants a prison sentence. If you plead guilty to the Court today, the Court will sentence you to [three] years formal probation and a suspended prison sentence. However, if you go to trial and the jury finds you guilty, you will almost certainly be sentenced to prison. This is a very good offer. Therefore you should discuss this offer with your counsel and consider it seriously.'"*fn3 Defendant declined the offer, and proceeded with the jury trial.
On October 6, 2009, the second day of trial, defendant's trial counsel informed the court that defendant wanted to enter a plea. The trial court denied the motion.*fn4
After the jury trial, on November, 13, 2009, the trial court conducted defendant's sentencing hearing. The probation report recommended that defendant be granted three years of formal probation, with the condition that he serve 365 days in local custody. Defendant's trial counsel requested that the court grant defendant probation. Defendant's trial counsel noted that defendant was 19 years old, and a first time offender, and that the probation officer's report recommended probation. The trial court remarked that the probation officer's report failed to mention the vandalism that defendant committed inside the house.
The trial court stated that, in order for a defendant who is convicted of a serious felony to be exempt from a prison sentence, the court must find that unusual circumstances exist. The court concluded that all the circumstances of the case weighed against defendant receiving probation. For example, defendant stole the possessions of "relatively poor people," and when defendant could not find more items of value, he proceeded to "trash" the house. After considering the circumstances, the trial court concluded that it would not consider probation.
The prosecutor recommended that defendant receive the midterm sentence of four years. The trial court explained that it "was wavering between [the] high term and midterm." The court stated that the high term would be justified due to the vandalism that defendant committed in the victim's house. However, the trial court said, "as an act of clemency to the defendant, I will refrain from imposing the high-base term, which I feel is fully justified, and impose the mid-base term of four years."
Defendant contends that the trial court penalized him for exercising his right to a jury trial (U.S. Const., Amend. VI), by imposing a more severe sentence than had been proffered prior to trial. We disagree.*fn5
Since defendant's contention implicates his constitutional rights, we will independently review the record. (People v. Cromer (2001) 24 Cal.4th 889, 894.)
A trial court violates a defendant's due process rights when it imposes a harsher sentence based upon the defendant's election to exercise his or her constitutional right to a jury trial. (In re Lewallen (1979) 23 Cal.3d 274, 278; see also People v. Collins (2001) 26 Cal.4th 297, 306.) To demonstrate that such a due process violation has occurred, there must be a showing that the higher sentence was imposed as punishment for defendant exercising his right to a jury trial. (People v. Angus (1980) 114 Cal.App.3d 973, 989-990.) The fact that, after trial, a defendant received a more severe sentence than he was offered prior to trial does not in itself support the inference that he was penalized for exercising his constitutional rights. (People v. Szeto (1981) 29 Cal.3d 20, 35.)
The trial court explained that it denied defendant probation due to the facts that defendant (1) stole from people who were "relatively poor"; (2) took the few valuable possessions that the victims owned; and (3) proceeded to vandalize the house after being unable to find more items of value. Nothing in the trial court's statement indicates that it sentenced defendant to prison as punishment for defendant electing a jury trial; rather, the trial court based its sentencing decision on evidence that was elicited during the trial. Consequently, we conclude that the trial court did not sentence defendant to prison as a punishment for defendant choosing a jury trial.
Defendant asserts that the trial court's pretrial statement--that defendant "will almost certainly be sentenced to prison" if he proceeded to trial--conveyed that defendant would be punished if he opted to proceed with a jury and lost at trial. We agree that the trial court's remark might be problematic if defendant had waived his right to a jury trial in response to the trial court's statement, because it could be argued that defendant's waiver was not voluntary. (People v. Collins, supra, 26 Cal.4th at pp. 309-312 [trial court's offer to reward a defendant for waiving a constitutional right can violate a defendant's right to due process].) However, defendant did not waive his right to a jury trial, and we are only concerned with whether the trial court punished defendant for exercising his right to a jury trial. At the sentencing hearing, the trial court gave a variety of reasons for denying probation. None of the reasons stated by the trial court were related to defendant's election to proceed by way of a jury trial; rather, the reasons were related to the evidence. In other words, it does not appear that the trial court's sentencing decision was based upon defendant's exercise of his Sixth Amendment right. Consequently, we do not find defendant's argument persuasive.
Defendant contends that the sentence imposed upon him was unreasonable, which shows that the trial court was punishing defendant for exercising his constitutional right to a jury trial. In support of his argument, defendant relies on the probation officer's report, which recommended that defendant be granted three years of formal probation with the condition that he serve 365 days in local custody. Defendant argues that the midterm sentence was "well in excess of probation's recommendation."
A trial court is not obligated to follow the sentencing recommendation in a probation officer's report. (People v. Downey (2000) 82 Cal.App.4th 899, 910.) In the instant case, the trial court explained that the probation officer's report was deficient, in that it did not mention the vandalism defendant committed inside the victims' house. Given the trial court's explanation for disagreeing with the probation report's recommendation, we are not persuaded that the trial court's sentence was unreasonable.
Further, in relation to the "unreasonable sentence" assertion, when a trial court selects the upper, middle, or lower term of imprisonment, the court "may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision." (Cal. Rules of Court, rule 4.420(b); § 1170, subd. (b).) The trial court noted that defendant was young, which could be a factor in mitigation; however, defendant had a "steady record" of sustained petitions in juvenile court, and therefore defendant's age was not a factor in mitigation. The trial court concluded that the "factors in aggravation far exceed the factors in mitigation," but as an "act of clemency to the defendant," the trial court imposed the midterm, rather than the high term. Since the trial court essentially found no factors in mitigation, it was reasonable for the trial court to impose the midterm sentence. In sum, we find defendant's argument unpersuasive.
Defendant analogizes his case to the juvenile matter of In re Edy D. (2004) 120 Cal.App.4th 1199 (Edy D.). In Edy D., the juvenile court said "that if the minor inconvenienced witnesses by having them come to court for an adjudication hearing, the option of a disposition under Welfare and Institutions Code section 725, subdivision (a) would no longer be available to him." (Id. at p. 1202.) Welfare and Institutions Code section 725 permits the juvenile court, after trial, to place the minor on probation, without adjudging the minor a ward of the court. Ultimately, the petition against the minor was sustained. (Edy D., at p. 1201.) The probation officer recommended a disposition in accordance with Welfare and Institutions Code section 725, but the juvenile court declared minor a ward of the court and placed him on probation. (Edy D., at p. 1201.) The appellate court concluded that the trial court's comment about inconveniencing witnesses "indicate[d] the court [based] the minor's disposition at least in part on the fact that he declined the [Welfare and Institutions Code section 725] disposition [offer] prior to the adjudication." Consequently, the appellate court reversed the disposition. (Id. at p. 1202.)
We find the instant case distinguishable from Edy D., because, in the instant case, the trial court provided a variety of reasons for denying probation, none of which related to defendant's choice to proceed by way of jury trial. The Edy D. appellate decision is relatively brief, and it is unclear from the opinion if the juvenile court listed reasons for adjudging the minor a ward of court. (Edy D., supra, 120 Cal.App.4th at pp. 1201-1202.) Accordingly, we distinguish the two cases because in the instant case, the record reflects that the trial court based its sentencing decision on the evidence, while it does not appear that the same can be said about Edy D. In sum, we are not persuaded by defendant's argument.
B. GRIFFIN ERROR
In the rebuttal portion of the prosecutor's closing arguments, the prosecutor made the following two remarks. First, the prosecutor argued, "Your job is to determine whether or not what [the] defense says is reasonable. Now, mind you, there is no evidence that anyone else touched this bottle. That's all [defendant's trial attorney's] speculation. He stood up here and gave a lot of speculation. Oh it could have been a bartender at a bar, or it could have been a clerk at a store, or a waitress that brought the bottle, or another guy who took the bottle into the house.[*fn6 ] [¶] Yeah, it could have been. It could have been an alien that came down and landed in the house as well. That's all possibilities. You've heard zero evidence supporting any of that." (Italics added.) Defendant's trial counsel objected to the argument, on the basis that the prosecutor was shifting the burden of proof. The trial court overruled the objection.
Second, the prosecutor argued, "Was the burglary sophisticated? Did [someone] pick the lock meticulously and plant the bottle so somebody else would be tagged for it? Of course your heard no evidence of that, but that's what [defendant] wants you to believe." (Italics added.) Defendant's trial counsel did not object to this second statement.
Defendant contends that the prosecutor committed Griffin error by commenting on defendant's failure to testify.*fn7 We disagree.
We apply the independent standard of review. (People v. Clair (1992) 2 Cal.4th 629, 663.)
"'Griffin forbids either direct or indirect comment upon the failure of the defendant to take the witness stand. The rule, however, does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. [Citation.]' [Citation.]" (People v. Hovey (1988) 44 Cal.3d 543, 572.) Nevertheless, a prosecutor "may commit Griffin error if he or she argues to the jury that certain testimony or evidence is uncontradicted, if [the] contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand. [Citations.]" (People v. Bradford (1997) 15 Cal.4th 1229, 1339.)
In the first comment, the prosecutor pointed out that there was no evidence the bottle was left at the house by a bartender, waitress, store clerk, or alien. Defendant would have been the one person who could not testify about such matters, because the idea was that defendant was not at the house to witness the bottle being "planted." In other words, the prosecutor was discussing the defense's theory of the case, and therefore, defendant could not have logically testified that another person brought the bottle into the house, because that testimony would have defeated the argument that defendant was not in the house. Rather, the evidence to show that the bottle was "planted" would have likely come in the form of (1) a neighbor testifying that a different person was at the crime scene holding a bottle, or (2) a second person's fingerprints on the bottle. In sum, the prosecutor did not argue to the jury that certain testimony or evidence was uncontradicted, when the contradiction or denial could be provided only by defendant. Accordingly, the prosecutor's first comment does not qualify as Griffin error.
The prosecutor's second comment highlighted the fact that there was no evidence that the lock was meticulously picked or that the bottle was planted. Again, defendant was the one person who could not know if the bottle was planted or if the lock was meticulously picked, because the idea was that defendant was not present at the victims' house to witness such actions. The evidence that the lock was picked would likely have come in the form of (1) a lock expert, or (2) a fingerprint on the lock. Consequently, the prosecutor did not argue to the jury that certain testimony or evidence was uncontradicted, when the contradiction or denial could be provided only by defendant. Accordingly, we conclude that the prosecutor's second comment does not qualify as Griffin error.
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ RICHLI Acting P. J.
/s/ KING J.