IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
March 16, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
MICHAEL ALLEN CADDICK, DEFENDANT AND APPELLANT.
(Super. Ct. No. CR102464)
The opinion of the court was delivered by: Raye , P. J.
P. v. Caddick
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Defendant Michael Allen Caddick stole $30.24 worth of Chinese food from a grocery store deli. A jury convicted him of conspiracy to commit burglary (Penal Code, § 182, subd. (a)(1)),*fn1 second degree burglary (§ 459), and petty theft with a prior conviction (§§ 484, subd. (a), 490.5, subd. (a), 666).*fn2 The court found true six allegations that defendant had served six prior prison terms for six separate felony convictions within the meaning of section 667.5, subdivision (b). Defendant was sentenced to a total prison term of seven years four months, comprised of 16 months for the burglary conviction and one year for each of the six enhancements.
On appeal, defendant contends the prosecutor committed prejudicial error when he improperly commented on defendant's failure to testify (Griffin v. California (1965) 380 U.S. 609 [14 L.Ed.2d 106] (Griffin)), there was insufficient evidence to support one of the six prior prison term enhancements (§ 667.5, subd. (b)), and the trial court misunderstood the scope of its discretion to strike some or all of the prior prison term enhancements (§ 1385). Defendant's challenge to the prior prison term enhancement has merit. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Because they are largely undisputed, we provide only a brief recitation of the facts underlying defendant's conviction.
On an early afternoon in late January 2010 defendant, an adult female, and two teenagers entered a Nugget Market grocery store and went directly to the deli area. Surveillance cameras captured footage of defendant and the female waiting to order. While defendant was in a nearby bathroom, the female received a total of three packages and placed them in the child seat of a shopping cart. Defendant later returned to the deli and the two walked toward the check stands.
Surveillance footage showed, and a loss prevention officer testified, that the couple never entered a check stand and never paid for the food. Rather, with the defendant standing "[r]ight next to her," the female pulled two white, plastic Nugget grocery bags from her purse and filled one with the Chinese food. Defendant grabbed the second bag.
After a while, the female is seen leaving the store with the bagged food in hand. The loss prevention officer who observed the entire scenario testified that defendant walked out behind the female without much delay, if any. Defendant was apprehended while trying to leave the premises. The female seen in the video was never located. A Nugget plastic bag was recovered from defendant's pocket. The value of the food taken was $30.24.
At the sentencing hearing, defendant sought a reduction of his felony convictions to misdemeanors (§ 17, subd. (b)) or, in the alternative, the striking of some or all of his prison priors (§ 1385). Both requests were denied. Defendant appealed.
At trial, the court found that the prosecutor improperly commented on defendant's failure to testify. The court immediately admonished the jury. Defendant contends the impact of the prosecutor's comments was impossible to cure because the prosecutor used defendant's silence to suggest that he was involved in an ongoing criminal conspiracy. Defendant also claims, for the first time on appeal, that the prosecutor committed prejudicial Griffin error when he referred to defense counsel's closing argument as "testimony."*fn3 Neither argument is persuasive.
Under the rule in Griffin, supra, 380 U.S. 609, the prosecution may not comment upon a defendant's failure to testify in his or her own behalf. (People v. Lewis (2001) 25 Cal.4th 610, 670 (Lewis).) Further, "'it is error for the prosecution to refer to the absence of evidence that only the defendant's testimony could provide.' [Citation.]" (People v. Harrison (2005) 35 Cal.4th 208, 257.) "The prosecutor is permitted, however, to comment on the state of the evidence, 'including the failure of the defense to introduce material evidence or to call witnesses.' [Citation.]" (Lewis, at p. 670.)
Reversal is required for Griffin error unless we can conclude it was harmless beyond a reasonable doubt. (People v. Hardy (1992) 2 Cal.4th 86, 154.) "[I]ndirect, brief and mild references to a defendant's failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error." (People v. Hovey (1988) 44 Cal.3d 543, 572.) Moreover, timely and thorough admonitions following such remarks are generally sufficient to remove any threat of prejudice. (E.g., People v. Carter (2005) 36 Cal.4th 1215, 1267; People v. Carr (2010) 190 Cal.App.4th 475, 484.)
During rebuttal argument, the prosecutor made the following statement: "[A]s much as [defense counsel] wants to make me the bad guy . . . or [the investigating officer] for not initiating a man hunt when he did at least five, six, seven things to try to locate this female, the defendant knew but is not testifying." Defense counsel immediately objected and the court gave the following curative admonition: "[A]s I instructed you, the defendant's constitutional right not to testify is something that cannot be taken into account at any point ever in a trial by anyone whether it's jurors in deliberation or an attorney in argument. [¶] It is to be completely ignored, disregarded, set aside. It is not evidence of guilt. It's not evidence of any sort. It cannot be used in any way. [¶] To do so would be a complete violation of the Fifth Amendment of the United States Constitution, which has been around a lot longer than I have, and so I tend to respect it. [¶] So disregard entirely the last comment from the District Attorney."
Defendant contends that, despite the court's admonishment, "certain bells are impossible to un-ring"; in this case, the prosecutor's statement suggested defendant was still conspiring with the female in the video and that such conspiracy "repair[ed] the key weakness in the prosecution's evidence." Not so. The prosecutor's remark was brief, mild, and did not invite the jury to draw an inference of guilt based on defendant's failure to testify. Further, the trial court's admonition effectively removed any potential for prejudice. "Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court's instructions." (People v. Sanchez (2001) 26 Cal.4th 834, 852.)
We also find no Griffin error in the prosecutor's reference to defense counsel's closing argument as testimony. Defendant claims that by referring to defense counsel's closing argument as testimony "the prosecutor suggested to the jury that the defense had not called to the stand the one person who could have provided testimonial support for [defendant's] argument." This is a strained interpretation of the prosecutor's argument.
During closing, defense counsel argued that the surveillance tape told the only complete story, a story subject to "so many interpretations," including "an alternative reasonable explanation that points to innocence." "The possibilities are infinite because you don't have direct evidence. All you have are these videos, and there are many, many, many reasonable interpretations of those facts that point to innocence."
In rebuttal, the prosecutor referred to defense counsel's argument as "testimony" on four occasions. The first time, he informed the jury that "what the attorneys say is not evidence" and that "the testimony you heard from [defense counsel] isn't really testimony. It's more of him trying to indicate a possibility." On each other occasion, the prosecutor argued that defense counsel's "testimony" was not "the only reasonable conclusion" and was "contrary to what the actual evidence was." The prosecutor argued "[p]ossibilities are infinite. [¶] But the only reasonable conclusion is the defendant knew what the purpose was on both dates, they effected that plan."
No Griffin error occurred here because the prosecutor neither directly nor indirectly commented on defendant's invocation of his constitutional right to remain silent.
Accordingly, we reject defendant's claims of prejudicial Griffin error.
Defendant contends the evidence to support the sixth prior prison term allegation, referred to as "Case Enhancement f," established neither a conviction for any particular felony offense nor a period of one or more years in prison. (§ 667.5, subd. (f).) We agree.
Section 667.5 mandates enhancement of prison terms for new offenses where the defendant has served a prior prison term. "[W]here the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony . . . ." (§ 667.5, subd. (b).) "A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law if the defendant served one year or more in prison for the offense in the other jurisdiction." (§ 667.5, subd. (f).)
The prosecution must prove each element of an alleged sentence enhancement beyond a reasonable doubt. (People v. Delgado (2008) 43 Cal.4th 1059, 1065 (Delgado).) "On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt." (Id. at p. 1067.) Further, we presume the existence of every fact the trier could reasonably deduce from the evidence in support of the judgment. (People v. Crittenden (1994) 9 Cal.4th 83, 139.)
Here, the information alleged that on February 23, 2005, defendant suffered a federal felony conviction and served a federal prison term for such conviction. At the bifurcated court trial the prosecution claimed that the particular felony was "felon in possession of firearm" and offered three documents as evidence of the foreign felony conviction and prison term: (1) a federal abstract of judgment titled "Judgment in a Criminal Case (For Revocation of Probation or Supervised Release)" for case No. 2:03-cr-00492-LKK; (2) a Federal Bureau of Investigation (FBI) fingerprint card with the notations "FELON IN POSS OF FIREARM" and "25 MOS"; and (3) a copy of defendant's chronological history/movement history (chronological history report) certified by the California Department of Corrections and Rehabilitation.
Defendant contends these records are insufficient to satisfy the prosecution's burden because they do not make clear what felony offense defendant was convicted of on February 23, 2005, whether that offense included all the elements of the particular felony as defined under California law, or whether defendant spent one year or more in federal prison for the felony offense. The Attorney General argues that under the applicable standard of review we should conclude the trial court was entitled to find that the only reasonable interpretation of the evidence established each element of the alleged prior. As we will discuss, defendant's contention has merit.
It is true that certified court documents from the record of the prior court proceeding and commitment to prison are often used to prove the elements of the prior prison term enhancement. (Delgado, supra, 43 Cal.4th at p. 1066.) But in this case, there is no document in the record evidencing a criminal proceeding wherein defendant was convicted in federal court for any particular felony on February 23, 2005. To be sure, the federal abstract of judgment indicates that in 2007 defendant admitted violating the "conditions of supervision heretofore ordered on February 23, 2005"; he also admitted guilt to a charge of felony auto theft. Consequently, the previously ordered probation or supervised release was terminated. Nearly a year later, on May 14, 2008, defendant was delivered to a federal correctional institution to serve a 21-month sentence for the admitted violations. In other words, there is evidence that a criminal proceeding was had wherein a federal court ordered conditions of supervision on February 23, 2005. However, the prosecution failed to provide evidence of what felony offense, if any, defendant was convicted of on that date.
Similarly, the FBI fingerprint card does not establish a felony conviction or a prison term of one year or more. The FBI fingerprint card indicates that defendant was arrested on March 30, 2005, more than a month after the alleged conviction date. Moreover, the notation "FELON IN POSS OF FIREARM" cannot establish a conviction because it explicitly states "CHARGE/CITATION," not conviction. Further, there is no indication that this document was prepared contemporaneously with the February 23, 2005, judgment. (See Delgado, supra, 43 Cal.4th at pp. 1070-1072 & fn. 6.) Finally, this document cannot establish a conviction on February 23, 2005, because that date is not listed anywhere on the document.
Even if, as the prosecution argues, the notations could be read to indicate a felony conviction on February 23, 2005, there is no evidence that the noted disposition of "25 MOS," or any portion thereof, was served in prison. "When a prior California prison term is charged as an enhancement, the duration of the term actually served is irrelevant. (Pen. Code, § 667.5, subd. (g).) [Fn. omitted.] Under subdivision (f) of section 667.5, however, a prior prison term from another jurisdiction qualifies as an enhancement only 'if the defendant served one year or more in prison for the offense in the other jurisdiction.'" (People v. Gamble (1996) 48 Cal.App.4th 576, 578.)
Finally, the chronological history report, which was offered to show "that the defendant was released from state custody and then was placed in federal custody where he served time for that offense," is of little help. Because there has been no showing that defendant was convicted of any felony on February 23, 2005, the report cannot establish service of a term for any such offense. What the report does indicate is that in 2007 defendant was wanted by the U.S. Marshals in case No. 2:03-cr-00492-LKK and that in 2008 he was discharged "to allow Federal authorities exclusive jurisdiction." While we can infer a term of imprisonment beginning May 14, 2008, this term is irrelevant to the alleged prior prison term.
In sum, viewing all of the evidence in the light most favorable to the trial court judgment, we conclude defendant was convicted of a federal felony, i.e., the admitted 2007 felony auto theft; he was sentenced by the federal court to a term of 21 months in federal prison; and he served a term of imprisonment for that felony because "[a]s a practical matter, a defendant properly sentenced and delivered to a prison would always complete a prison term unless something unusual occurs, e.g., the defendant escapes." (People v. Crockett (1990) 222 Cal.App.3d 258, 265.) Still, this is not the felony alleged in the information and referred to as "Case Enhancement f." By statute, the prosecution is required to plead and prove the validity of a prior conviction and prior prison term for purposes of sentence enhancement. (§§ 667.5, subds. (b), (f), 1170.1, subd. (e).) Necessarily, the conviction and prison term proved must be the conviction and term alleged.
The prosecution failed to meet its burden. We must therefore reverse the trial court's finding of true on "Case Enhancement f" and remand, at the prosecution's election, for retrial (People v. Monge (1997) 16 Cal.4th 826) or resentencing.
Defendant's final contention is that the trial court abused its discretion in refusing to strike some or all of defendant's prior prison term enhancements. (§ 1385.) Specifically, defendant argues the court's remarks at the sentencing hearing suggest it may have misunderstood the scope of its discretion; thus, remand is necessary. His contention lacks merit.
Once a prior prison term is found true within the meaning of section 667.5, subdivision (b), the trial court must impose the one-year enhancement unless the prior term is stricken. (People v. Langston (2004) 33 Cal.4th 1237, 1241.) The court may only strike a prior prison term enhancement "in furtherance of justice." (§ 1385, subd. (a); see also People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 518.) This exercise of judicial discretion is a departure from the sentencing norm; thus a trial court's refusal or failure to strike or dismiss under section 1385 is reviewed for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).)
The party attacking the sentence has the burden to clearly show that the sentencing decision was irrational or arbitrary. In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives. (Carmony, supra, 33 Cal.4th at pp. 376-377.) The trial court's decision will not be reversed "'"merely because reasonable people might disagree."'" (Id. at p. 377.) In fact, a trial court will only abuse its discretion in limited circumstances. "For example, an abuse of discretion occurs where the trial court was not 'aware of its discretion' to dismiss [citation] . . . ." (Id. at p. 378.) However, "[w]here the Legislature establishes a sentencing norm and requires the court explicitly to justify a departure therefrom, and the court sentences in conformity with the legislative standard, all that is required on the appellate record is a showing that the court was aware of its discretion to select an alternate disposition." (People v. Langevin (1984) 155 Cal.App.3d 520, 524.)
At trial, defense counsel moved to reduce defendant's offenses to misdemeanors. (§ 17, subd. (b).) Counsel also requested that the court strike some or all of defendant's prior prison term enhancements. (§ 1385.) Regarding the section 1385 request, the court stated: "For each of the enhancements, even though the defense has requested that there be a dismissal under [section] 1385, that does not appear to be warranted under the law. He has these prior prison terms. He knows that under the law he can be charged with them and sent back for a lengthier prison time and yet committed the criminal acts. . . . [¶] It is a legislative decision and a public policy decision that someone who keeps committing crimes and going to prison gets a longer prison term each time, irrespective of how serious the felony was that led to the most recent conviction. That's the way the law stands right now. The Court orders the sentence then of seven years, four months."
Extracting mere phrases from the court's explanation, defendant contends the trial court must have been unaware of its discretion under section 1385 because "the comparatively trivial nature of the current offense . . . would well have justified an exercise of discretion in this case . . . . This is a case, after all, in which [defendant's] theft of about $30 of food for himself and a companion resulted in a prison sentence of seven years and four months." While reasonable minds might disagree with the prison term imposed, defendant has not clearly shown that the sentencing decision was irrational or arbitrary.
There is no indication in the remarks quoted above that the court misunderstood the scope of its discretion. Defendant points to the phrase "that does not appear to be warranted under the law" as support for his argument. This remark does not indicate misunderstanding; rather, it appears the court considered but denied the request after considering defendant's current crimes, knowledge of the consequences of those crimes, and criminal history. Thus, the court determined there was no adequate reason to exercise its discretion, not that no discretion existed.
Further, defendant points to the phrases "[i]t is a legislative decision" and "[t]hat's the way the law stands right now" as additional support. We decline to construe the court's acknowledgment of the public policy supporting its decision as an indication that it was not aware the decision was within its discretion.
Further supporting our conclusion is the evidence in the record showing the trial court was aware of its discretion to select an alternate disposition. Following argument from all counsel, the court denied defendant's motions under section 17, subdivision (b) seeking to reduce the felonies to misdemeanors. The court denied the section 17 motion "based on [defendant's] extensive criminality." Moreover, the court declined to follow the probation report recommendation that defendant serve the upper term of three years for the second degree burglary conviction. Instead, the court sentenced defendant to the lower term of 16 months "because of the charging decision to bring the six enhancements . . . charged and found to be true." In short, the court considered all possible sentencing outcomes to achieve legitimate sentencing objectives. We conclude the court was aware of, and properly exercised, its discretion to select an alternate disposition.
The trial court's finding on the foreign felony conviction, Case Enhancement f, is reversed. The cause is remanded to the trial court for resentencing or, at the prosecutor's election, for retrial of Case Enhancement f. In all other respects, we affirm the judgment.
We concur: ROBIE , J. DUARTE , J.