People v. Carroll

• Decision Date: 11 July 1996
• Docket Number: No. D023882,D023882
• Citation: 47 Cal.App.4th 892,54 Cal.Rptr.2d 868
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 5435, 96 Daily Journal D.A.R. 8789 The PEOPLE, Plaintiff and Respondent, v. Abonilico Lamar CARROLL, Defendant and Appellant.

Page 868

54 Cal.Rptr.2d 868

47 Cal.App.4th 892, 96 Cal. Daily Op. Serv. 5435,

96 Daily Journal D.A.R. 8789

The PEOPLE, Plaintiff and Respondent, v. Abonilico Lamar CARROLL, Defendant and Appellant.

No. D023882.

Court of Appeal, Fourth District, Division 1, California.

July 11, 1996.

[47 Cal.App.4th 894] Christopher Blake, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Sara Gros-Cloren, Deputy Attorney General, for Plaintiff and Respondent.

HUFFMAN, Acting Presiding Justice.

After two jury trials, Abonilico Lamar Carroll was convicted of kidnapping in violation of PENAL CODE SECTION 207¹, disobeying a court order in violation of section 273.6 subdivision (a), resisting a police officer in violation of section 148, subdivision (a), and battery in violation of section 242. In the first trial the jury was unable to reach a verdict on the kidnapping offense. In the second trial Carroll was convicted of kidnapping.

After the verdict in the second trial Carroll waived jury trial on the alleged priors and admitted two prison priors within the meaning of section 667.5, subdivision (b), one serious felony prior conviction within the meaning of section 667, subdivision (a), and one serious/violent felony prior conviction within the meaning of section 667, subdivisions (b)-(i).

Carroll was sentenced to a determinate term of fifteen years, consisting of the middle term of five years for kidnapping, doubled pursuant to section 667, subdivision (e), and five years for the serious felony prior. The trial court struck the prison priors at the time of sentencing.

Carroll appeals, raising various challenges to the applicability of the three strikes law to his current offenses. Additionally, he contends the instruction given on the burden of proof was incorrect and that he was not properly advised of his trial rights before admitting the alleged priors.

I CALJIC No. 2.90

The trial court instructed the jury on the burden of proof, using the 1994 revision to CALJIC 2.90. ² Carroll contends the instruction After the opinion of the United States Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1, 114 S.Ct. 1239, 127 L.Ed.2d 583, our Supreme Court revisited the definition of reasonable doubt as then contained in CALJIC No. 2.90. People v. Freeman (1994) 8 Cal.4th 450, 34 Cal.Rptr.2d 558, 882 P.2d 249 suggested the instruction be modified by removing the references to moral evidence and moral certainty. The court said:

as it has been modified to remove references to "moral evidence" and "moral certainty," does not adequately define reasonable doubt. We disagree.

"Although modifying the standard instruction is perilous, and generally should not be done, today it might be more perilous for trial courts not to modify it in a narrow and specific manner in light of the [United States Supreme Court's] statement that the instruction's 'common meaning ... may continue to [change] to the point it' becomes unconstitutional. [Citation.] A slight modification in view of that decision might be deemed safe, indeed safer than not making it. The high court made clear that the terms 'moral evidence' and 'moral certainty' add nothing to the jury's understanding of reasonable doubt. It thus seems that trial courts might, in the future, safely delete the following phrases in the standard instruction: 'and depending on moral evidence,' and 'to a moral certainty.'

"Making these changes, and no others, would both avoid the perils that have caused appellate courts to caution trial courts against modifying the standard instruction, and satisfy the concerns the high court has expressed regarding that instruction. In light of Penal Code section 1096a, we cannot and do not require courts to change the standard language; rather, we note that it is permissible, and safer, to make the narrow changes suggested herein." (Id. at p. 504, 34 Cal.Rptr.2d 558, 882 P.2d 249, original italics.)

The CALJIC committee thereafter revised CALJIC No. 2.90 to incorporate the suggestions of the California Supreme Court. ³

We consider the opinion of the court in People v. Freeman, supra, 8 Cal.4th 450, 34 Cal.Rptr.2d 558, 882 P.2d 249 to be dispositive of this issue. The instruction comports with the Supreme Court's determination of what is the appropriate definition of reasonable doubt. It is for the Supreme Court to reconsider such definition if it chooses to do so. Our task is simple: we will apply the law as the Supreme Court has stated it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.)

II Admission of the Priors

Carroll contends his admission of the alleged prior convictions was not based on a properly informed waiver of his trial rights on those priors. The Attorney General correctly concedes the trial court erred in the summary manner in which the waiver and admissions were taken. The Attorney General argues, however, under the reasoning of People v. Howard (1992) 1 Cal.4th 1132, 1175, 5 Cal.Rptr.2d 268, 824 P.2d 1315, the error was harmless. The paucity of advice contained in this record compels a conclusion the harmless error doctrine cannot be applied in this case.

The original jury trial was bifurcated with the guilt phase to precede the determination of the truth of the priors. After the first jury deadlocked on the kidnapping charge, a mistrial was declared. The second jury trial was also bifurcated. No action was taken on the priors before the second jury.

At the time of sentencing, the following discussion took place between defense counsel and the trial court "[DEFENSE COUNSEL]: Nannette Monson on behalf of Mr. Carroll.

"... First of all, we had the priors to deal with. I have talked to Mr. Carroll about the prior convictions. He is going to admit that he does have the prior convictions for the [Penal Code section] 211 and the [Health and Safety Code section] 10851, which I believe are the only prior convictions.

"THE COURT: Sir, you want to waive your right to a trial to [sic ] those allegations and admit that those allegations are true?

"THE DEFENDANT: Yes."

Carroll was informed prior to the first jury trial of his right to a jury trial on the prior conviction allegations. At that time the court bifurcated the trial on the priors. The first trial, however, ended in a hung jury and a mistrial was declared. The issue of trial on the priors was not revisited until after the completion of the second trial. At that time the very cursory and erroneous questioning of the defendant occurred. The record does not reflect Carroll was ever advised fully or even in a summary fashion as to the nature of...