People v. Byrd

• Decision Date: 20 June 2001
• Docket Number: No. C036033.,C036033.
• Citation: 89 Cal.App.4th 1373,108 Cal.Rptr.2d 243
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Steve BYRD, Defendant and Appellant.

108 Cal.Rptr.2d 243

89 Cal.App.4th 1373

The PEOPLE, Plaintiff and Respondent, v. Steve BYRD, Defendant and Appellant.

No. C036033.

Court of Appeal, Third District.

June 20, 2001.

Certified for Partial Publication.^*

Review Denied Sept. 19, 2001.

John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, David P. Druliner, Chief Assistant Attorney General, Robert R. Anderson, Senior Assistant Attorney General, John G. McLean, Supervising Deputy Attorney General, Mary Jo Graves, Deputy Attorney General, for Plaintiff and Respondent.

SIMS, Acting P.J.

In this case arising under the Three Strikes Law, defendant Steve Byrd appeals from a judgment following his conviction for 12 counts of robbery (Pen.Code, § 211¹), one count of mayhem (§ 203), one count of attempted premeditated murder (§§ 664/187, subd. (a)), and one count of possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)), with enhancements for personal use of a firearm (§ 12022.53, subd. (b)), personal discharge of a firearm causing great bodily injury (§ 12022.53, subd. (d)), and three serious felony prior convictions (§ 667, subds. (a)-(i)).

Defendant was sentenced to state prison for a determinate term of 115 years, plus an indeterminate term of 444 years to life.

On appeal, defendant raises claims of evidentiary and sentencing error, and prosecutorial misconduct in closing argument. In the published portion of the opinion, we reject defendant's contentions that the trial court erred in calculating his sentence and that his sentence constitutes cruel and/or unusual punishment. In the unpublished portion of the opinion, we reject defendant's other contentions of prejudicial error. We shall therefore affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Defendant was charged as follows:

Counts 1 through 12—robbery (§ 211) of various fast-food restaurants between February 17, 1998, and March 2, 1998;

Count 13—mayhem (§ 203) on March 2, 1998, by depriving Antonio G. of a member of his body, to wit, kidney, liver, pancreas and gallbladder, and scarring his torso, thereby disabling, disfiguring and rendering the above parts of the body useless;

Count 14—attempted murder (§§ 664/187) of Antonio G. on March 2, 1998;

Count 15—possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)), based on a 1984 robbery conviction.

The information also alleged defendant personally used a firearm in the commission of counts 1 through 14 (§ 12022.53, subd. (b)); personally discharged a firearm causing great bodily injury to Antonio G. in counts 11 through 14 (§ 12022.53, subd. (d)); and had three serious felony prior convictions (§ 667, subds. (a)-(i)) for robberies in Los Angeles in 1980, 1984, and 1990.

The evidence adduced at trial showed that between February 17 and March 2, 1998, numerous armed robberies were committed at fast-food restaurants in Sacramento. The suspect in each crime was an African-American man, armed with a revolver. In the last robbery, a Spanishspeaking employee was shot in the abdomen when he did not respond to the assailant's demand for money. The victim underwent emergency surgery for the gunshot wound, which injured his liver, stomach, pancreas and intestines. A kidney, which was irreparably damaged by the gunshot, was removed during surgery.

Defendant was arrested on March 11, 1998. He had in his possession a newspaper article about the robberies. His palm print was found on the counter of one of the fast-food restaurants. He was positively identified by witnesses in each of the crimes.

Defendant testified at trial, against the advice of his trial attorney.² He denied committing any of the offenses which are the subject of this prosecution. He admitted that, at the time of his arrest, he was in possession of a newspaper article about the crimes, which he said was given to him by a friend. He admitted he had prior theft-related convictions in 1980, 1984, and 1990 (admitted at trial for the limited purpose of impeachment). He admitted he wrote, in a letter from jail to a friend, "God, I wish I would have never come out here. Yes, I was on the news and in the newspaper. That's why I'm going to get my case out of Sacramento." During cross-examination, defendant replied "I guess" or "If you say so" to most of the prosecutor's questions, and said to the prosecutor, "Why don't you just go ahead and give me the 400 years you want to give me." When defendant repeated the comment, the trial court interjected: "The jury will ignore any statements made about the sentencing issues.... I do not want the jury to speculate about any sentencing. If, and there's a big if, you find the defendant guilty, ignore any statements made about sentencing. That's for the Judge, not for the jury, not for [defendant] that's for me. Disregard any statements about sentencing."

The jury found defendant guilty on all counts and found true all enhancement allegations under section 12022.53.

Defendant waived jury trial on the prior conviction allegations, and the trial court found them to be true.

The trial court denied defendant's motion for a new trial and motion to strike the prior convictions.

The trial court sentenced defendant to state prison for a determinate term of 115 years, plus an indeterminate term of 444 years to life, as follows:

Determinate Sentence:

—Ten consecutive terms of 10 years for the firearm use enhancements (§ 12022.53, subd. (b)) in counts 1 through 10 (robberies);³

—Five-year terms for each of the three serious felony prior convictions (§ 667, subd. (a)).

Indeterminate Sentence:

—Fully consecutive terms of 30 years to life for the robberies in counts 1 through 10 (§ 667, subd. (e)(2)(A)(iii));⁴

—A consecutive term of 70 years to life for the robbery in count 11 (§ 667, subd. (e)(2)(A)(iii));⁵

—A consecutive term of 74 years to life for attempted murder in count 14 (§ 667, subd. (e)(2)(A)(iii)).⁶

Pursuant to section 654, the trial court stayed terms of 70 years to life for count 12 (robbery), 73 years to life for count 13 (mayhem), and 25 years to life for count 15 (felon in possession of firearm).

DISCUSSION

I.-III.^**

IV. The Trial Court Correctly Computed Defendant's Sentence on Counts 2 Through 10

Defendant contends the trial court erroneously computed his sentence on counts 2 through 10. We shall ultimately reject this contention. However, we shall first explain what the trial court did.

The trial court sentenced on counts 2 through 10 by applying section 667, subdivision (e)(2)(A)(iii), which provides as follows:⁸ "(e) For purposes of subdivisions (b) to (i) inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: ... [¶] (2)(A) If a defendant has two or more prior felony convictions as defined in subdivision (d) that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greater of: ... [¶] (iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046."

For each count, the trial court calculated a minimum term of an indeterminate sentence, pursuant to section 1170, as follows: The aggravated term of five years for robbery (§ 213, subd. (a)(2)), plus 10 years for personal use of a firearm under section 12022.53, subdivision (b), plus five years each (total of 15 years) for defendant's three prior serious felony convictions under section 667, subdivision (a). The minimum term of the indeterminate sentence on each count was therefore 30 years.

The trial court then ran each of these terms fully consecutive pursuant to section 667, subdivision (e)(2)(B), which provides in relevant part:⁹ "The indeterminate term described in subparagraph (A) shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law." This language requires that full-term consecutive sentences be imposed. (People v. Ayon (1996) 46 Cal.App.4th 385, 394, 53 Cal.Rptr.2d 853, disapproved on another point in People v. Deloza (1998) 18 Cal.4th 585, 600, fn. 10, 76 Cal.Rptr.2d 255, 957 P.2d 945.)

Defendant contends the sentence imposed on counts 2 through 10 is erroneous in two respects.

First, he argues that the trial court incorrectly computed the minimum term of the indeterminate term for each count. He notes that, for each count in counts 2 through 10, the trial court added a total of 15 years for his three prior-serious-felony-conviction enhancements. (§ 667, subd. (a).) Citing People v. Tassell (1984) 36 Cal.3d 77, at page 90, 201 Cal.Rptr. 567, 679 P.2d 1, defendant argues that his prior serious felony convictions are status enhancements that may be used only once where consecutive sentences are imposed. Defendant says that since the serious felony enhancements were used to compute his sentence on count 1, they may not be used again in counts 2 through 10.

We do not agree with this argument. People v. Tassell, supra, reached its conclusion by relying on section 1170.1, subdivision (a), concerning consecutive sentencing. Thus, Tassell said, "[s]ection 1170.1, subdivision (a) starts out by stating the basic rule that when a person is convicted of two or more felonies, the total sentence consists of (1) the principal term, (2) the subordinate term, and (3) any enhancements for prior convictions. In so doing, it makes it very clear that enhancements for prior convictions do not attach to particular counts but instead are added just once as the final step in computing the total sentence." (People v. Tassell, supra, 36 Cal.3d at p. 90, 201 Cal.Rptr. 567, 679 P.2d 1, fn. omitted.)

Tass...