P. v. Hall CA2/1 ( 2013 )

Filed 7/12/13 P. v. Hall CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B237656
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA381111)
v.
JIBRIL KHALID HALL et al.,
Defendants and Appellants.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Ronald S. Coen, Judge. Affirmed.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and
Appellant Jibril Khalid Hall.
Randall Connor, under appointment by the Court of Appeal, for Defendant and
Appellant Melvin Henry, Jr.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Yun K. Lee and Tasha G.
Timbadia, Deputy Attorneys General, for Plaintiff and Respondent.
——————————
Appellant Jibril Khalid Hall was convicted of four counts of robbery, with a true
finding that he personally used a firearm on count 1. (Pen. Code, §§ 211, 12022.53, subd.
(b), 12022, subd. (a)(1).)1 Appellant Melvin Henry, Jr., was convicted of one count of
robbery (§ 211), with a true finding that a principal was armed with a firearm (§ 12022,
subd. (a)(1)). Appellants Hall and Henry contend the trial court penalized them for
exercising their right to a jury trial by improperly imposing the upper term for their
burglary convictions, and Hall contends the trial court improperly relied on an inaccurate
probation report in imposing the upper term. We affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
On October 17, 2011, Hall and Henry were charged in an amended information as
follows: count 1, second degree robbery against Hall and Henry (§ 211); count 2, second
degree robbery against Hall (§ 211); count 3, second degree robbery against Hall (§ 211);
count 4, attempted second degree robbery against Hall (§§ 664, 211); and count 5, second
degree robbery against Hall (§ 211). The information alleged as to counts 1 and 5 that
Hall personally used a handgun (§ 12022.53, subd. (b)) and as to counts 1, 2, 3, and 5 that
a principal was armed during the commission of the offense (§ 12022, subd. (a)(1)).
Count 1
On January 28, 2011, at about 6:30 p.m., Hector Casillas took his children to
McDonald‘s at Western and Century. The area was not well lit and there were not many
people around. His two daughters and son, ages 13, seven and five, respectively, were
with him. When they came out of the restaurant, he saw three African-American men at a
bus stop. They surrounded them, but then left. Casillas and his family continued down
the street, and when he turned around, he saw the three African Americans following him.
One of the men approached him with a gun and put it in Casillas‘s chest. Casillas did not
understand what the man said because Casillas did not speak English, but he gave the
man with the gun his wallet. The man took the money out of the wallet, threw it on the
1 All statutory references are to the Penal Code unless otherwise indicated.
2
ground, and ran off. One of the remaining men picked up the wallet and gave it to
Casillas.
The man with the gun was wearing a black sweatshirt with a cap and black jeans.
At trial, Casillas identified Hall as the man with the gun, and Henry as the man who
picked up his wallet and gave it back to him. Although the area was not well lit, Casillas
got a good look at the men‘s faces. He described them as three male African Americans,
two of whom were wearing black pants, black hoodies and white shoes; the other man
was wearing blue jeans and white shoes.
Casillas‘s minor daughter V.C. testified that when they left the McDonald‘s,
Casillas told her to hurry up. Three men came up to them and pointed the gun at Casillas
and asked for money. Casillas opened his wallet and gave it to the man with the gun.
V.C. was very scared. V.C. could not identify the man with the gun in court, but
identified Henry in court. She had seen Henry in the court hallway before testifying and
recognized him. V.C. wears glasses and cannot see at a distance well.
Counts 2 and 3
On February 5, 2011, at about 11:00 a.m., Asod Andrus was at 106th Street and
Western Avenue with his girlfriend Brittany Reado waiting for the bus. Two black men
walked up and said, ―‗Don‘t do anything stupid.‘‖ One man took Reado‘s purse, and the
other man took Andrus‘s cell phone, and his jewelry, but did not take Andrus‘s wallet.
Andrus identified Hall from a photo array as the person who had taken his property.
Reado told police that one of the men was wearing a black shirt with a green plant on it,
and the other was wearing a red jacket. The man with the jacket, who was the one who
took Reado‘s purse, appeared to be carrying a gun underneath his jacket.
Count 4
On February 10, 2011 at 4:20 p.m., Jessilyn McCrury was riding the 757 bus and
was sitting near the middle of the bus. A man from the back of the bus pulled on her
clothes and tried to pull a chain off her neck. The man was unsuccessful because the
chain was too small and McCrury was yelling. She was unable to identify defendant for
3
police. On February 10, 2011 at about 4:20 p.m., Yaritza Benigno was riding the 757 bus
and witnessed the incident. She described the attacker as African American, wearing a
baseball cap and a gray sweatshirt. He had run off after the attack. Benigno identified
Hall at a field showup.
On February 10, 2011, police were conducting surveillance near the intersection of
Western and Century. Three police cars were monitoring fixed posts. Police were
focusing on buses because a lot of robberies had occurred in the area at bus stops or as
passengers got off the bus. Police observed a male African American get off the 757 bus
and run westbound on Century. The man looked over his shoulder to see if anyone was
following him. Police detained the man, and Hall was identified in court as the man who
ran off the bus. Jessilyn McCrury also identified Hall at a field show up.
Count 5
Pablo Aragon, a day laborer, was dropped off at a Home Depot on Century
Boulevard and Crenshaw on November 28, 2010 about 4:00 p.m. Aragon had just
finished working for the day, and was waiting for a bus with his friend Antonio. After the
bus did not come, they began walking home. They passed an apartment building at Van
Ness. Three black men asked them for a dollar. Antonio said no, and they kept walking.
As they approached Western, a woman grabbed Antonio and a man came up to Aragon
and pointed a revolver at Aragon. The man and woman pushed Aragon and Antonio
towards an alley. Aragon gave the man $40, but the man reached into Aragon‘s pocket
and took out $200 and Aragon‘s cell phone. The man was wearing a grey hooded
sweatshirt and gray pants.
Police showed Aragon a six-pack photo array. When he first testified at trial, he
was not sure if the man he identified in the photo array was the one with the gun who
took his money. Later, he was recalled to the witness stand and testified that Hall was the
person who took his money and cell phone.
4
Defense
Police prepared four photo arrays containing six photographs each. Two of the
arrays did not contain Hall or Henry; of the remaining two, one contained Hall and the
other contained Henry. Police officer Miguel Gutierrez showed Casillas photo arrays on
February 10, 2011. He believed he may have shown him all four photo arrays.
The jury convicted Hall on counts 1, 2, 3 and 4, but found the firearm allegation
true only for count 1. The jury acquitted Hall on count 5. The jury convicted Henry on
count 1, and found the firearm allegations true.
The trial court sentenced Hall to an aggregate term of 17 years, eight months,
consisting of the high term of five years, plus 10 years for the personal firearm use
allegation, plus two additional one-year consecutive terms on counts 2 and 3, plus an
additional eight months on count 4. The trial court sentenced Henry to an aggregate term
of six years, consisting of the high term of five years on count 1, plus one year for the
firearm allegation.
DISCUSSION
I. The Trial Court Did Not Punish Henry with a Higher Sentence for Exercising
His Right to a Jury Trial
Henry argues the trial court penalized him for exercising his right to a jury trial by
imposing the upper term. He points to the fact that the trial court had his probation report
before it when it offered probation, but after trial, relied on those matters in Henry‘s
probation report—prior convictions and his recent completion of probation—rather than
evidence adduced at trial or posttrial in sentencing Henry to the upper term. Respondent
contends Henry forfeited the argument by failing to raise it in the trial court; further, there
was no evidence the trial court punished him for going to trial, and court‘s selection of the
upper term was supported by Henry‘s prior convictions.
A. Factual Background
The probation officer‘s report disclosed that Henry had three juvenile petitions
sustained (knife on school grounds, transportation and sale of marijuana, and forgery) for
5
which he received probation. Henry also had one adult misdemeanor conviction for
carrying a loaded firearm and concealed firearm in 2007 for which he was given 36
months probation and 90 days in jail.2 Henry was a member of the Hard Time Hustlers
gang. In the present case, the probation report noted that the victim was not injured and
Henry did not have a firearm in his possession, otherwise a more punitive sentence would
have been recommended. The probation officer recommended that the court impose but
suspend execution of a prison sentence, with Henry placed on probation on condition that
he serve 180 days in county jail if he failed to perform 180 hours of community service
through the probation department‘s probation adult alternative work service (PAAWS)
program. The report found no factors in mitigation, but noted that Henry‘s prior
convictions were numerous or of increasing seriousness.
On October 19, 2011, the day before jury selection, the trial court read the
probation report. At his sentencing hearing on November 29, 2011, Henry pointed out to
the court that the court had previously offered probation after the testimony of the first
witness, but Henry had turned down the offer. Henry requested the court to stay his
conviction and place him on probation, noting that he was the lookout and gave the victim
his wallet back, asserting that his involvement was minimal. The prosecution requested
the high term based upon Henry‘s convictions for carrying a concealed weapon and a
loaded firearm. The court stated that it did not find Henry suitable for probation based on
his prior adult and juvenile convictions. The court noted that Henry‘s probation had
ended just five and a half months before the charged crime, and observed that ―[w]ith the
extensive record that [Henry] has, the high term is warranted.‖ Henry requested a
reconsideration of his sentence based on his minimal participation in the crime. The court
denied the request, stating, ―I listened to the entire record [of trial], not just the conduct.‖
2Henry‘s probation would have ended in July 2010, about six months before the
January 2011 robbery of Casillas and his family.
6
B. Discussion
A defendant may not be penalized for exercising his or her jury trial right, which is
a violation of Fourteenth Amendment due process rights. (In re Lewallen (1979) 23
Cal. 3d 274, 278; People v. Collins (2001) 26 Cal. 4th 297, 306–307.) ―[O]nly the most
compelling reasons can justify any interference, however slight, with an accused‘s
prerogative to personally decide whether to stand trial or to waive his rights by pleading
guilty.‖ (People v. Hill (1974) 12 Cal. 3d 731, 768.) ―‗[A] court may not offer any
inducement in return for a plea of guilty or nolo contendere. It may not treat a defendant
more leniently because he foregoes his right to trial or more harshly because he exercises
that right.‘‖ (People v. Clancey (2013) 56 Cal. 4th 562, 575, quoting People v. Superior
Court (Felmann) (1976) 59 Cal. App. 3d 270, 276.) Henry‘s failure to raise the issue in
the trial court does not result in a forfeiture. (People v. French (2008) 43 Cal. 4th 36, 46–
47.)
Although a court may not impose a harsher sentence on a defendant as punishment
for exercising his or her jury trial right, ―[t]here must be some showing, properly before
the appellate court, that the higher sentence was imposed as punishment for exercise of
the right.‖ (People v. Angus (1980) 114 Cal. App. 3d 973, 989–990.) In In re Lewallen,
supra, 23 Cal.3d at page 274, the defendant refused to accept a negotiated sentence.
Following a jury trial, at sentencing, the defense attorney requested informal rather than
formal probation. (Id. at p. 276.) The trial court responded: ―‗I think I want to
emphasize there‘s no reason in having the District Attorney attempt to negotiate matters if
after the defendant refuses a negotiation he gets the same sentence as if he had accepted
the negotiation. It is just a waste of everybody‘s time, and what‘s he got to lose. And as
far as I‘m concerned, if a defendant wants a jury trial and he‘s convicted, he‘s not going
to be penalized with that, but on the other hand he‘s not going to have the consideration
he would have had if there was a plea.‘‖ (Id. at p. 277.) The court remanded the matter
for resentencing, finding that the defendant had shown ―that the trial court‘s exercise of
7
its sentencing function was improperly influenced by his refusal of the proffered plea
bargain and insistence on his right to trial.‖ (Ibid.)
Lewallen emphasized ―that a trial court‘s discretion in imposing sentence is in no
way limited by the terms of any negotiated pleas or sentences offered the defendant by the
prosecution. The imposition of sentence within the legislatively prescribed limits is
exclusively a judicial function.‖ (In re Lewallen, supra, 23 Cal.3d at p. 281.)
―Legitimate facts may come to the court‘s attention either through the personal
observations of the judge during trial [citation], or through the presentence report by the
probation department, to induce the court to impose a sentence in excess of any
recommended by the prosecution.‖ (Ibid., fn. omitted.) ―The mere fact . . . that following
trial defendant received a more severe sentence than he was offered during plea
negotiations 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.)
Here, Henry asserts that we must infer the trial court penalized him for asserting
his jury trial right because the court read the probation report before trial, and offered
probation; after trial, probation was no longer on the table because the trial court had
listened to witnesses. However, Henry must present some evidence that the ―higher
sentence was imposed as punishment for [his assertion] of [his jury trial] right.‖ (People
v. Angus (1980) 114 Cal. App. 3d 973, 989–990.) We find Henry has failed to establish
that the trial court‘s reading of the probation report improperly influenced his sentence.
On the contrary, the trial court‘s decision to impose a harsher sentence was the result of
its observations of the testimony of the victims, particularly the child victim who was
extremely frightened by the assault with a gun. The court so indicated the basis for its
sentence at trial: ―I listened to the entire record [of trial], not just the conduct.‖ Thus, the
trial court properly exercised its sentencing discretion based upon its personal
observations during trial and the presentence probation report that permit the trial court to
impose a higher sentence than was offered during pretrial. (In re Lewallen, supra, 23
Cal.3d at p. 281, fn. omitted.)
8
II. Hall’s Sentence
Hall argues the trial court abused its discretion in imposing the upper term on
count 1 because the trial court relied on his extensive juvenile history as set forth in his
probation report, but the probation report is ―extremely unclear‖ and does not support the
finding of an extensive juvenile history. Further, Hall joins in Henry‘s argument that he
was penalized for asserting his right to a jury trial. Respondent asserts that Hall forfeited
the issue by failing to request clarification of his juvenile history in the trial court; but in
any event, the trial court did not abuse its discretion because several factors support
imposition of the upper term, and it is not reasonably probable the trial court would have
chosen a lower term if it had more information about Hall‘s juvenile history.
A. Factual Background
Hall‘s probation report states that he, born in 1992, suffered four sustained
juvenile petitions, but the report discloses two petitions, each of which has two counts:
(1) the first petition, filed June 29, 2009, consisting of one count of minor in possession
of a firearm with a prior (disposition date Apr. 12, 2002),3 and one count of possession of
live ammunition with a prior (disposition date Aug. 9, 2007), Case No. 629; and (2) the
second petition, filed July 21, 2009, consisting of one count of burglary (disposition date
of September 29, 2009, with camp community placement of eight years), Case No. 721.
The record also discloses a third petition, Case No. 810, consisting of one count of
burglary, a disposition date of April 12, 2010, with suitable placement. While on
probation for his juvenile offenses, Hall received several referrals to drug treatment
programs, but failed to provide his probation officer with any verification of enrollment.
While on probation, Hall tested positive for marijuana and cocaine, and was supervised as
a juvenile at the Firestone Office Intensive Gang Unit. Hall‘s adult history consisted of
the current case.
3This date appears to be a typographical error as the petition as a whole was filed
June 27, 2007, and count 2 was disposed of on August 9, 2007.
9
The probation report noted that Hall ―has suffered four prior juvenile sustained
petitions of the following nature: burglary, possession of a firearm with prior, possession
of live ammunition, and burglary,‖ and commented that his ―crimes have escalated and
resulted in the filing . . . of an adult matter.‖ The report noted that the crimes involved
violence used to obtain property of others, Hall used a firearm, and his
―behavior . . . suggest[s] that he has violent tendencies and predatory habits.‖ Although
Hall had received community based intervention, it had not deterred his criminal
behavior. ―Due to the gun allegation, the violence utilized against the victims, there is a
need for [Hall]‘s removal from the community and confine[ment] at the state level at this
time.‖ The probation department recommended the trial court deny probation, and due to
the aggravating factors imposition of the high term was warranted.
During the sentencing hearing, Hall‘s counsel requested that the court impose the
low term on count 1. The prosecution asked for imposition of the midterm. The court
found that with the exception of counts 2 and 3, all of the crimes occurred at different
times with different victims, and for that reason the court would impose consecutive
sentences. The court told both defense and the prosecution that while it gave ―great
weight‖ to their recommendations, it disagreed with their assessment of appropriate
punishment. The court noted that, Hall ―has an extensive juvenile history, including [the]
most recent of which is in December of 2009, [when he] was given [an] eight year camp
community placement,‖ and based upon the [Hall]‘s record the high term was warranted.
Hall did not object.
B. Discussion
Hall argues that while the probation report states he suffered four juvenile
―sustained petitions,‖ he in fact suffered only two (Nos. 629 and 721), and the disposition
date of April 2002 ―casts that entry in a suspect light.‖ He contends we cannot rely on
inaccurate information and the trial court‘s reliance thereon constituted an abuse of
discretion because the trial court did not exercise informed discretion.
10
First, Hall forfeited the issue at trial by failing to raise it. (People v. Scott (1994) 9
Cal. 4th 331, 353, fn. 15.) Scott held that lack of a timely and meaningful objection to a
sentencing decision may forfeit a party‘s claim of error on appeal. This forfeiture rule
extends all the way to ―claims involving the trial court‘s failure to properly make or
articulate its discretionary sentencing choices. Included in this category are cases in
which the stated reasons allegedly do not apply to the particular case, and cases in which
the court purportedly erred because it double-counted a particular sentencing factor,
misweighed the various factors, or failed to state any reasons or give a sufficient number
of valid reasons.‖ (Ibid.)
Second, the inaccuracies in the probation report do not rise to the level of a denial
of due process. ―Although not all the procedural safeguards required at trial also apply in
a sentencing or probation hearing, such a hearing violates due process if it is
fundamentally unfair.‖ (People v. Eckley (2004) 123 Cal. App. 4th 1072, 1080.)
―Reliability of the information considered by the court is the key issue in determining
fundamental fairness‖ in this context. (People v. Arbuckle (1978) 22 Cal. 3d 749, 754–
755.) ―A court‘s reliance, in its sentencing and probation decisions, on factually
erroneous sentencing reports or other incorrect or unreliable information can constitute a
denial of due process.‖ (Eckley, at p. 1080.) In Eckley, the defendant was charged with
child abuse based upon her misguided treatment of her children for food poisoning. The
evidence at trial established that the children, who were taken to the emergency room,
experienced seizures and low-blood sodium, but recovered the next day. (Id. at pp. 1074–
1077.) The probation report stated that the children were in ―critical condition‖ and the
daughter‘s condition was ―‗life threatening‘‖ and contained other statements not
supported by the evidence at trial. (Id. at pp. 1078–1080.) Eckley held reliance on the
probation report was improper because it contained inaccurate information on which the
trial court relied in sentencing, and remanded for sentencing. (Id. at pp. 1080–1081.)
Here, in contrast, Hall complains that the probation report contained a date that
would have made him nine years old at the time of the offense; outlines in detail only
11
three petitions, while it asserts there were four; and failed to specify the nature and degree
of the offenses. Our review of the probation report indicates these errors are less
momentous than Hall asserts. First, the mistaken date is patently a typographical error
given its context: the petition date is June 29, 2007 and the disposition date of the second
count is August 9, 2007. Second, the report refers to three petitions and Hall did not
dispute at trial the content or accuracy of the charges in those petitions. As a result, the
probation report supports the court‘s factual findings at sentencing that were ostensibly
based upon the report. (People v. Gragg (1989) 216 Cal. App. 3d 32, 46.)
Further, even without considering the probation report, other factors support the
trial court‘s sentence. Hall‘s conduct in engaging in repeated robberies indicated he was
a danger to society (Cal. Rules of Court, rule 4.421(b)(1)). As a single factor in
aggravation is sufficient to impose the upper term (People v. Black (2007) 41 Cal. 4th 799,
815), ―it is not reasonably probable the [trial] court would have [imposed] a lesser
sentence‖ absent the probation report. (People v. Price (1991) 1 Cal. 4th 324, 491–492.)
To the extent Hall joins in Henry‘s argument that he was punished for exercising
his right to a jury trial, we find no error. Hall‘s brief does not point to any facts
suggesting the trial court penalized him for going to trial, nor does he develop any cogent
argument or cite to any legal authority. Nonetheless, the record does not support any
finding that the trial court penalized Hall; rather, as discussed above, the record
demonstrates it relied on proper sentencing factors in imposing the upper term.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED.
JOHNSON, J.
We concur:
MALLANO, P. J. CHANEY, J.
12