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The People v. Vincent Bracy

April 30, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
VINCENT BRACY, DEFENDANT AND APPELLANT.



(Super. Ct. Nos. 05-5454, 08-3660)

The opinion of the court was delivered by: Nicholson , Acting P. J.

P. v. Bracy CA3

NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Vincent Bracy appeals from his convictions of possession of a controlled substance (Health & Saf. Code, § 11350, subd. (a)) and failure to appear (Pen. Code, § 1320.5). He claims the trial court abused its discretion when it (1) failed to declare a mistrial upon the jury's announcing it was deadlocked; and (2) denied his motion to strike a prior serious felony conviction. Defendant also asserts (3) the court erred when it imposed penalty assessments and fees for which it had not orally pronounced the express statutory foundations. We affirm the judgment.

FACTS

A casino security officer using a security camera observed two people inside a car in the casino's parking garage. The officer watched as a male (defendant), who had been seated in the front passenger seat, exited the car and handed a female seated in the driver's seat "something white and in the form of a ball." The female put the item into a compartment in the back of the car. The officer contacted the sheriff's department.

Deputy sheriffs watched the security video and then contacted defendant and his female companion in the casino. Deputies searched the car and found a plastic bag behind a rear seat armrest. Inside the bag was another bag that contained a white substance, and 10 individually wrapped portions of the same substance. The white substance was later determined to be cocaine base. The cocaine weighed in total 8.6 grams. The cocaine in the larger bag weighed 4.05 grams, and the individually wrapped portions weighed, in grams, .37, .36, .27, .44, .45, .51, .34, .64, .60, and .57.

On the first day of trial, May 27, 2008, the district attorney filed an amended information (case No. 05-5454) charging defendant with one count of possession for sale of cocaine base. (Health & Saf. Code, § 11054, subd. (f)(1).) The information also alleged defendant had a 1984 prior "strike" conviction (Pen. Code, § 667, subds. (c), (e)(1)), and he had served two prior prison terms. (Pen. Code, § 667.5, subd. (b).) On the same day, counsel agreed to bifurcate the case, and defendant waived jury trial on the priors.

On the following day, May 28, defendant failed to appear at trial. Trial proceeded, and the case was submitted to the jury that afternoon.

On May 29, the jury, after having been instructed to continue deliberating despite being deadlocked, acquitted defendant of possession for sale, but it convicted him of the lesser-included offense of possession of a controlled substance. At a later hearing, the court found the prior conviction and prison term allegations to be true.

After trial in case No. 05-5454, the district attorney filed a separate information (case No. 08-3660) charging defendant with failing to appear at trial in case No. 05-5454, a violation of Penal Code section 1320.5. This information also alleged defendant had a 1984 prior "strike" conviction (Pen. Code, § 667, subds. (c), (e)(1)), and he had served two prior prison terms. (Pen. Code, § 667.5, subd. (b).) It further alleged as a separate enhancement that at the time of the failure to appear, defendant was released from custody on bail or on his own recognizance within the meaning of Penal Code section 12022.1, subdivision (b).

Defendant pleaded no contest to the charge in case No. 08-3660 and admitted the 1984 prior strike conviction. The parties stipulated to a prison sentence of 16 months consecutive to the sentence on case No. 05-5454.

On April 8, 2010, both cases came on for sentencing. Defendant made a Romero*fn1 motion to dismiss his prior strike conviction. The court denied the motion. The court sentenced defendant to a total prison term of seven years four months. This term consisted of six years on the possession count in case No. 05-5454 (the middle term of two years, doubled for the prior strike, plus two years for the prior prison term enhancements), and sixteen months as agreed upon by the parties on the failure to appear count in case No. 08-3660. The court also imposed various penalty assessments, fees, and fines.

Defendant timely appealed, claiming the court erred by (1) not declaring a mistrial when the jury in case No. 05-5454 informed the court is was deadlocked, (2) denying his Romero motion, and (3) imposing various assessments, fees and fines it had not imposed orally at sentencing.

DISCUSSION

I Decision Not to Declare a Mistrial

Defendant contends the trial court abused its discretion and violated his right to due process when it instructed the jury to continue deliberating instead of declaring a mistrial after the jury informed the court it was deadlocked. We disagree. The court acted within its discretion when it directed the jury to continue deliberating. In addition, defendant forfeited his claim of constitutional error by not objecting on that basis at trial. (People v. Saunders (1993) 5 Cal.4th 580, 589-590.)

A. Additional background information

Trial in case No. 05-5454 lasted approximately three days. It began on May 27, 2008. On May 28, 2008, at approximately 2:43 p.m., the jury began its deliberations. At about 4:00 p.m. that day, the jury stopped deliberations.

On May 29, 2008, the jury resumed deliberations at 9:00 a.m. About 35 minutes later, the jury sent a note informing the court it could not reach agreement. The court held a hearing with the jurors and both counsel. The jury foreperson informed the court it had taken four votes on the possession for sale count. Those votes, without indicating guilt or acquittal, were four to eight, three to nine, two to ten, and two to ten.

The court instructed the jury to continue deliberating. It did so for two reasons. First, the jury had not been deliberating long, perhaps a total of only "a couple of hours." Second, the vote numbers were changing, "so obviously people are changing opinions, and obviously the discussion has moved people one way or the other."

The court repeatedly asked the jurors if there was anything it could do to assist the jury in reaching a verdict. The record does not indicate any verbal ...


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