People v. Blackburn

• Decision Date: 23 June 1999
• Docket Number: E022053,Nos. E021188,s. E021188
• Citation: 72 Cal.App.4th 1520,86 Cal.Rptr.2d 134
• Court: California Court of Appeals Court of Appeals
• Parties: , 73 Cal.App.4th 984A, 99 Cal. Daily Op. Serv. 5036, 1999 Daily Journal D.A.R. 6445 The PEOPLE, Plaintiff and Respondent, v. Rodrick Jermaine BLACKBURN, Defendant and Appellant.

Page 134

86 Cal.Rptr.2d 134

72 Cal.App.4th 1520, 73 Cal.App.4th 984A,

99 Cal. Daily Op. Serv. 5036,

1999 Daily Journal D.A.R. 6445

The PEOPLE, Plaintiff and Respondent, v. Rodrick Jermaine BLACKBURN, Defendant and Appellant.

Nos. E021188, E022053.

Court of Appeal, Fourth District, Division 2, California.

June 23, 1999.

As Modified July 22, 1999.

Certified for Partial Publication. ^*

Roberta K. Thyfault, under appointment by the Court of Appeal, for Defendant and Appellant Rodrick J. Blackburn.

Mark L. Christiansen, under appointment by the Court of Appeal, Granite Bay, for Defendant and Appellant Derwin Jules Jackson.

Daniel E. Lungren and Bill Lockyer, Attorneys General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Robert M. Foster, Supervising Deputy Attorney General, and Lora Fox Martin, Deputy Attorney General, for Plaintiff and Respondent.

OPINION

RICHLI, J.

Defendant Rodrick Jermaine Blackburn shot and killed two teenage boys, for no apparent reason other than that he "hate[d] Mexicans." There was testimony that defendant Derwin Jules Jackson encouraged Blackburn to shoot the teenagers. When the shooting was over, Jackson drove Blackburn away.

Defendants contend:

1. The testimony that Jackson encouraged Blackburn was too conclusory and uncertain to support the verdict finding Jackson guilty of aiding and abetting the murders.

2. The trial court erred by admitting evidence regarding a pair of gloves.

3. The trial court erroneously denied a Wheeler motion (People v. Wheeler (1978) 22 Cal.3d 258, 148 Cal.Rptr. 890, 583 P.2d 748).

4. The trial court erroneously failed to instruct that a person who does nothing but facilitate the perpetrator's escape is not an aider and abettor.

5. Jackson's trial counsel rendered constitutionally ineffective assistance in investigating and preparing for trial and in closing argument.

6. There was insufficient evidence that Jackson's prior conviction was a serious felony for purposes of the three strikes law.

7. The trial court imposed excessive restitution fines.

The $20,000 restitution fine imposed on Blackburn was in excess of the statutory maximum. We will modify the judgment by reducing the fine to $10,000. Otherwise, we find no prejudicial error. Accordingly, we will affirm the judgment as modified.

I-VII ^**

VIII

EVIDENCE THAT JACKSON'S PRIOR WAS A "STRIKE"

Jackson contends there was insufficient evidence that his prior conviction for shooting at an occupied motor vehicle (Pen.Code, § 246) qualified as a "strike."

A prior is a "strike" if it is either a "violent felony" under Penal Code section 667.5 or a "serious felony" under Penal Code section 1192.7. (Pen.Code, §§ 667, subd. (d)(1), 1170.12, subd. (d)(1).) The only definition of a serious or violent felony potentially applicable here is "[a]ny felony in which the defendant personally inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant personally uses a firearm." (Pen.Code, § 1192.7, subd. (c)(8), italics added.) ⁹

In the prior proceeding, Jackson was charged with one count of brandishing a firearm in the presence of an occupant of a motor vehicle (Pen.Code, § 417.3) and one count of discharging a firearm at an occupied motor vehicle (Pen.Code, § 246). In connection with the latter count, it was alleged that he personally used a firearm (Pen.Code, § 12022.5, subd. (a)). Jackson pleaded guilty to discharging a firearm at an occupied motor vehicle. The trial court dismissed the brandishing charge, and it ordered the personal firearm use allegation "[s]tricken."

Preliminarily, Jackson argues the prior cannot qualify as a "strike" because the information here did not allege that, in the commission of the prior, he personally used a firearm. The three strikes law requires that a triggering prior felony conviction be pleaded and proved. (Pen.Code, §§ 667, subds. (c), (e)(1), (e)(2)(A), (f)(1), 1170.12, subds. (a), (c)(1), (c)(2)(A), (d)(1).) This means pleaded and proved in the current proceeding; the fact that the prior was a serious or violent felony need not have been pleaded or proved in the prior proceeding. (See People v. Rodriguez (1998) 17 Cal.4th 253, 261-262, 70 Cal.Rptr.2d 334, 949 P.2d 31.)

Here, the information alleged "pursuant to Penal Code sections 1170.12(a) through (d) [and] 667(b) through (i) ... [t]hat the defendant, DERWIN JULES JACKSON, has suffered the following prior conviction of a serious or violent felony ...: The crime of SHOOTING AT A[ ] MOTOR VEHICLE in violation of section 246 of the PENAL Code on and about the 8TH day of SEPTEMBER, 1992 in the SUPERIOR Court of the state of CALIFORNIA, for the county of RIVERSIDE, Case Number CR44158." Assuming, without deciding, this gave insufficient notice of the factual basis of the alleged "strike," Jackson waived the defect by failing to demur. (See People v. Equarte (1986) 42 Cal.3d 456, 466-467, 229 Cal.Rptr. 116, 722 P.2d 890.)

Jackson also argues that, by entering into a plea bargain in the prior proceeding, the prosecution implicitly conceded there was insufficient evidence of personal firearm use. We know of no authority for the proposition that such a concession would be binding in a subsequent prosecution. In any event, we discern no such concession. When a defendant is charged with a serious felony, including a felony in which it is alleged the defendant personally used a firearm, plea bargaining is prohibited "unless there is insufficient evidence to prove the people's case, or testimony of a material witness cannot be obtained, or a reduction or dismissal would not result in a substantial change in sentence." (Pen.Code, § 1192.7, subd. (a).) If the trial court approves a plea bargain in a serious felony case, it is supposed to indicate on the record which of these exceptions applies. (People v. Tung (1994) 30 Cal.App.4th 1607, 1611, 36 Cal.Rptr.2d 727; People v. Cardoza (1984) 161 Cal.App.3d 40, 46, fn. 6, 207 Cal.Rptr. 388.)

Our record does not reflect any such finding by the trial court in the prior proceeding. We cannot tell whether the plea bargain was approved based on insufficient evidence, a missing witness, or an insubstantial change in sentence. ¹⁰ Certainly the trial court could have found an insubstantial change in sentence; even if Jackson had admitted the personal firearm use allegation, the trial court could not have imposed the enhancement, because firearm use is a necessary element of the offense of discharging a firearm at an occupied motor vehicle. (Pen.Code, § 12022.5, subd. (a); see People v. Hansen (1994) 9 Cal.4th 300, 316-317, 36 Cal.Rptr.2d 609, 885 P.2d 1022.) Thus, we cannot say the prosecution conceded there was insufficient evidence of personal firearm use.

Jackson also briefly suggests it was part of the plea bargain that the conviction did not involve the personal use of a firearm; hence, the finding that the prior is a "strike" based on personal firearm use violates the plea bargain. Generally, however, when a plea bargain calls for striking an enhancement, that merely means the enhancement cannot be used to enhance the current conviction. The plea bargain does not bar the use of the facts underlying the stricken enhancement in sentencing on a subsequent conviction. (People v. Visciotti (1992) 2 Cal.4th 1, 68, fn. 36, 5 Cal.Rptr.2d 495, 825 P.2d 388, cert. den. 506 U.S. 893 [113 S.Ct. 267, 121 L.Ed.2d 196]; People v. Alvarez (1982) 127 Cal.App.3d 629, 634, 198 Cal.Rptr. 167.)

Jackson's main contention is that the prior cannot qualify as a "strike" because, in the prior proceeding, a personal firearm use enhancement was alleged but stricken, and never either found true or admitted. Jackson can cite no case so holding, nor does he convince us there is any reason why this should be the rule.

Certainly double jeopardy principles do not apply. It has long been the law that " ... the constitutional guarantee against double jeopardy 'is inapplicable where evidence of prior criminal activity is introduced in a subsequent trial as an aggravating factor for consideration by a penalty phase jury. [Citations.]' [Citations.]" (People v. Medina, supra, 11 Cal.4th at p. 765, 47 Cal.Rptr.2d 165, 906 P.2d 2, quoting People v. Garceau, supra, 6 Cal.4th at pp. 199-200, 24 Cal.Rptr.2d 664, 862 P.2d 664.) " 'The presentation of evidence of past criminal conduct at a sentencing hearing does not place the defendant in jeopardy with respect to the past offenses. He is not on trial for the past offense, is not subject to conviction or punishment for the past offense, and may not claim ... double jeopardy protection against introduction of such evidence.' [Citations.]" (People v. Davis (1995) 10 Cal.4th 463, 533, 41 Cal.Rptr.2d 826, 896 P.2d 119, cert. den. (1996) 516 U.S. 1121, 116 S.Ct. 932, 133 L.Ed.2d 859, quoting People v. Visciotti, supra, 2 Cal.4th at p. 71, 5 Cal.Rptr.2d 495, 825 P.2d 388.) Similarly, " ... one is not placed 'twice in jeopardy for the same offense' when the details of misconduct which has already resulted in ... dismissal pursuant to a plea bargain ... are presented in a later proceeding on the separate issue of the appropriate penalty for a subsequent offense. [Citation.]" (People v. Melton (1988) 44 Cal.3d 713, 756, fn. 17, 244 Cal.Rptr. 867, 750 P.2d 741, first italics added, cert. den. 488 U.S. 934, 109 S.Ct. 329, 102 L.Ed.2d 346.)

More recently, it has been broadly held that double jeopardy principles do not apply to the retrial of a sentencing allegation, even in the same prosecution. (Monge v. California (1998) 524 U.S. 721, ---------, 118 S.Ct. 2246, 2250-2253, 141 L.Ed.2d 615; People v. Hernandez (1998) 19 Cal.4th 835, 838-843, 80 Cal.Rptr.2d 754, 968 P.2d 465, cert. den. (1999) ---U.S. ----, 119 S.Ct. 1814, --- L.Ed.2d ----; People v. Monge (1997) 16 Cal.4th 826, 831-845, 66 Cal.Rptr.2d 853, 941 P.2d 1121.) Thus, here, even if there had been a finding in...