People v. Cline

• Decision Date: 08 January 1998
• Docket Number: No. E019186,E019186
• Citation: 71 Cal.Rptr.2d 41,60 Cal.App.4th 1327
• Court: California Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 590, 98 Daily Journal D.A.R. 736 The PEOPLE, Plaintiff and Respondent, v. Mark Anthony CLINE, Defendant and Appellant.

Page 41

71 Cal.Rptr.2d 41

60 Cal.App.4th 1327, 98 Cal. Daily Op. Serv. 590,

98 Daily Journal D.A.R. 736

The PEOPLE, Plaintiff and Respondent, v.Mark Anthony CLINE, Defendant and Appellant.

No. E019186.

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

Jan. 8, 1998.

Review Denied April 15, 1998. ^*

[60 Cal.App.4th 1331] Patricia A. Scott and Cindi B. Mishkin, under appointments by the Court of Appeal, San Diego, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Laura Whitcomb Halgren and Sabrina Y. Lane, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

WARD, Associate Justice.

A jury found defendantMark Anthony Cline guilty of grand theft (Pen.Code, § 487, subd. (a))¹ and commercial burglary (§ 459).In a bifurcated proceeding, the jury also found true the allegations of 12 prior strike felony convictions (§ 667, subds. (b)-(i)) and 2 prior prison term convictions (§ 667.5, subd. (b)).The court sentenced him to 25 years to life for the grand theft conviction and to a consecutive 1-year enhancement for each of the prior prison term convictions.In addition, the trial court imposed a concurrent sentence of 25 years to life for the burglary conviction.

On appeal, defendant contends the trial court erred in denying his request for a unitary trial on the current offenses and strike allegations;section 654 requires that the prison term for one count be stayed; the trial court abused its discretion by refusing to strike one or more of the prior conviction allegations; the sentence imposed constitutes cruel and unusual punishment; and defendant's twelve prior strikes were not brought and tried separately and therefore do not count as individual strike priors.The People concede that section 654 requires the sentence for one count to be stayed.We find no other error.

FACTS

In December 1995, a loss prevention agent at the Harris Department Store in San Bernardino saw defendant enter the store, approach two clothing racks, and remove price tickets from several items.Defendant discarded the price tickets, pulled a bag with the logo of another store out of his pocket, and placed the items into the bag.Defendant then left the store without paying for the items.

The loss prevention agent and a mall security attendant approached defendant and asked about the merchandise.Defendant said he had paid for the items, and he resisted efforts to handcuff him.He did not have any money or credit cards with him.The value of the items defendant had removed from the store was about $648.

DISCUSSION

I.Defendant Had No Right to a Unitary Trial

A.The Prosecution's Motion for a Bifurcated Trial

Before trial, defendant informed the courthe wished to have the prosecution prove the truth of the prior conviction allegations as part of the prosecution's case-in-chief.When defendant's counsel informed the court that defendant would not testify at trial, the prosecution moved to bifurcate the proceedings.The prosecutor explained, "What [the defense] basically asking for is jury nullification.It's within the Court's jurisdiction regardless of who is asking for it to bifurcate those issues.[p] I don't want to confuse the jury or to cause some conflict between the jurors' ultimate decision and the court instructions.[p] So I'd ask to bifurcate the priors."

Defense counsel responded, "I believe again, it's my understanding that it's the responsibility of the district attorney to prove both their case-in-chief as well as the special allegations.I don't believe that we're asking for a jury nullification."

The court granted the motion to bifurcate, citing People v. Calderon(1994)9 Cal.4th 69, 79, 36 Cal.Rptr.2d 333, 885 P.2d 83.The court explained, "The only two considerations for this Court to consider are the Calderone [sic ] case with the question of prejudice in this particular case and the statements from [the prosecutor] that the prejudice may or would be to the People which is the prospect of jury nullification.[p] The jury nullification is not codified in anyway in California.In fact, the jury is directed to follow the law.And in doing so, would not be allowed to consider jury nullification.But this Court has had the experience of effective jury nullification in cases that I've tried.Where a matter was brought before the jury, and the jury reached a verdict not guilty [sic ].[p] And on inquiry afterwards, the jury indicated that they in effect, even though not instructed on jury nullification, were nullifying the law because of the allegations of the priors being read.[p]They in fact determined that it was in fact a strike case, and they were not going to follow the law."The court concluded, "Balancing the prejudicial effect that would be based upon the Court's personal experience [of apparent jury nullification in other cases], ... the Court would grant the People's request to bifurcate the issues of the crimes of the priors."

Defendant contends the trial court abused its discretion in granting the People's request for a bifurcated trial.

B.A Trial Court Has the Discretion Under Section 1044 to Bifurcate the Trial

In People v. Calderon, supra, 9 Cal.4th at p. 72, 36 Cal.Rptr.2d 333, 885 P.2d 83, the California Supreme Court held that "a trial court has the discretion, in a jury trial, to bifurcate the determination of the truth of an alleged prior conviction from the determination of the defendant's guilt of the charged offense, but is not required to do so if the defendant will not be unduly prejudiced by having the truth of the alleged prior conviction determined in a unitary trial."

Under section 1025, when a defendant pleads not guilty and denies the truth of a prior conviction allegation, "the question whether or not he has suffered such previous conviction must be tried by the jury which tries the issue upon the plea of not guilty...."The court in People v. Calderon, supra, 9 Cal.4th 69, 36 Cal.Rptr.2d 333, 885 P.2d 83, explained that section 1025 neither expressly authorizes nor prohibits bifurcation of trial of the prior conviction allegations.(Id. at p. 74, 36 Cal.Rptr.2d 333, 885 P.2d 83.)However, "[g]eneral authority to bifurcate trial issues may be found ... in section 1044, which vests the trial court with broad discretion to control the conduct of a criminal trial: 'It shall be the duty of the judge to control all proceedings during the trial ... with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.'[Citation.]'The object of a trial is to ascertain the facts and apply thereto the appropriate rules of law, in order that justice within the law shall be truly administered.It is not only the right but the duty of a trial judge to so supervise and regulate the course of a trial that the truth shall be revealed in so far as it may be, within the established rules of evidence.'[Citation.]"(Id. at pp. 74-75, 36 Cal.Rptr.2d 333, 885 P.2d 83.)

We conclude a trial court has discretion under section 1044 to grant a motion for bifurcation regardless of whether the motion was brought by the defendant or by the People.

C.Standard of Review

In exercising its discretion under section 1044, a trial court must be impartial and must assure that a defendant is afforded a fair trial.(People v. Blackburn(1982)139 Cal.App.3d 761, 764, 189 Cal.Rptr. 50.)When there is no patent abuse of discretion, a trial court's determinations under section 1044 must be upheld on appeal.(People v. Calderon, supra, 9 Cal.4th at p. 79, 36 Cal.Rptr.2d 333, 885 P.2d 83.)

D.The Trial Court Did Not Abuse Its Discretion in Granting the People's Motion for a Bifurcated Trial

Although no published case of which we are aware has discussed a motion for bifurcation brought by the People, many cases have discussed the factors that should guide a trial court's discretion when ruling on such a motion brought by the defendant.Courts have acknowledged the "serious danger"(see, e.g., People v. Thompson(1988)45 Cal.3d 86, 109, 246 Cal.Rptr. 245, 753 P.2d 37) or the "significant risk"(People v. Calderon, supra, 9 Cal.4th at p. 76, 36 Cal.Rptr.2d 333, 885 P.2d 83) to the defendant from having a jury determine the truth of a prior conviction allegation during the same proceeding in which it is charged with determining the defendant's guilt on a current charge.The Calderon court made clear the trial court's decision should be guided by the specific circumstances of the case before it.(Calderon, supra, at pp. 79-80, 36 Cal.Rptr.2d 333, 885 P.2d 83.)

Here, the court noted that it had presided over two trials in which the jury apparently had refused to follow the law and had found the defendants not guilty of offenses falling under the three strikes law.These circumstances are not specific to the current case, and we do not mean to suggest that a trial court can grant a prosecutor's motion for bifurcation merely on a generalized concern that a jury might exercise nullification.However, the court was also entitled to consider the prejudice to the defendant from having the jury learn of his 12 prior convictions in a unitary trial.There was no abuse of discretion.

E.A Defendant has no Constitutional Right to a Unitary Trial

Defendant contends the trial court violated his constitutional rights by bifurcating the trial.The United States Supreme Court has ruled that a unitary trial does not deny a criminal defendant due process of law, but further suggested that a bifurcated trial is often more fair.(People v. Calderon, supra, 9 Cal.4th at p. 75, 36 Cal.Rptr.2d 333, 885 P.2d 83, citingSpencer v. Texas(1967)385 U.S. 554, 567-569, 87 S.Ct. 648, 655-657, 17 L.Ed.2d 606, 616-617.)Certainly, therefore, a defendant has no constitutional right to a unitary trial.

Moreover, a defendant has no constitutional right to have the...