People v. Green, Cr. 5387

• Decision Date: 30 July 1982
• Docket Number: Cr. 5387
• Citation: 134 Cal.App.3d 587,184 Cal.Rptr. 652
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Robert GREEN, Defendant and Appellant.

Page 652

184 Cal.Rptr. 652

134 Cal.App.3d 587

The PEOPLE, Plaintiff and Respondent, v. Robert GREEN, Defendant and Appellant.

Cr. 5387.

Court of Appeal, Fifth District, California.

July 30, 1982.

[134 Cal.App.3d 589]

Jin Ishikawa, Fresno, for defendant and appellant

George Deukmejian, Atty. Gen., Robert H. Philibosian, Chief Asst. Atty. Gen., Arnold O. Overoye, Asst. Atty. Gen., Susan R. Bunting, Robert G. Mendez and James T. McNally, Deputy Attys. Gen., Sacramento, for plaintiff and respondent.

GEO. A. BROWN, Presiding Justice.

Appellant was convicted after jury trial of burglary (Pen.Code, § 459). ¹ The jury found that he had served two prior prison terms (§ 667.5). He appeals from the judgment.

MIRANDA

Appellant contends that his statements made at the crime scene and at the police station were improperly admitted at trial because the prosecution failed to show the requisite warnings and waivers under Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Appellant's failure to object below on Miranda grounds precludes his present contentions. (People v. Bennett (1976) 60 Cal.App.3d 112, 116, 131 Cal.Rptr. 305.)

EFFECTIVENESS

Appellant charges that his trial counsel was ineffective for failing (1) to raise the above Miranda contentions by voir dire of the officer and objection and (2) to bring about appellant's admission, outside the jury's presence, of the alleged prior prison terms.

The governing rules appear in People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859.

With regard to the alleged admissions made at the scene, appellant has failed to identify the testimony of which he complains by citation to the record. Suffice it to state that the first statement occurred before appellant was arrested after the officer, in response to appellant's question, explained that he was a vehicle burglary suspect. His trial counsel may have reasoned that appellant was not in custody within the meaning of Miranda and that his statement was not a product of interrogation or its functional equivalent.

With regard to the other admissions made at the scene after appellant's arrest, the record suggests that these were the products of interrogation. It does not, however, indicate whether or not appellant had received Miranda warnings before being questioned. Further, appellant made the same statements later at the police station, after being advised per the standard department-issued card. For all the present record shows, no Miranda violation occurred at the scene. Or maybe counsel reasoned that he might as well let the statements in, since the later, station house statements were not excludable.

But, appellant argues, the officer failed to lay an adequate foundation for the admissibility of the station house statements because the record does not reveal the content of the card which was read. The officer neglected to bring the standard card to court, but counsel probably figured that objection would be a waste of time because the officer, if pressed, could probably get ahold of the card within a matter of minutes.

In sum, appellant has failed to establish ineffectiveness related to Miranda.

Despite the advice of counsel and repeated, clear warnings from the trial court as to the likely adverse consequences, appellant refused to admit the two prior prison terms which had been alleged for enhancement purposes. The prosecution thus introduced evidence of prior felony convictions for murder and burglary. Appellant complains that his counsel's failure to force him to admit them caused irreparable damage to the defense case.

Obviously, introduction of evidence as to the priors didn't help the defense as to the current burglary, but the record shows that trial counsel did urge appellant to admit them. The matter was discussed at length, in all its ramifications, with appellant at first unwilling, then willing, then finally unwilling to admit them. Appellant fails to show that anything else counsel might have done would have changed his client's mind. Since what happened was attributable to appellant's own intransigence in the face of sound advice, he stands in poor position to castigate counsel. Moreover, the prosecution case was otherwise overwhelming.

No ineffectiveness appears.

EVIDENTIARY SUFFICIENCY--PRIOR PRISON TERM

Finally, appellant contends that the record lacks substantial evidence to establish that he served the alleged prior prison term for burglary within the meaning of section 667.5. Subdivision (g) of that section provides:

"(g) A prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after escape from such incarceration."

The prosecution evidence consisted of (1) a certified copy of a Kern County Superior Court abstract of judgment showing that on June 28, 1978, in action No. 19418, appellant was sentenced to three years in state prison for burglary; (2) a Kern County jail release slip showing appellant's release on July 3, 1978, to a transportation officer en route to Chino Men's Prison; (3) a receipt for records in action No. 19418 and an envelope in which the receipt was mailed.

The receipt is addressed to:

"Bobby Joe Green

% Calif. Institution for Men

P. O. Box 441

Chino, CA 91710"

It is executed by a deputy county clerk and reflects the transmission of "Your copy one Volume Clerk's Transcript on Appeal." The document purports to reflect the receipt of said records on September 30, 1978, by Bobby Green. The accompanying envelope is addressed to the county clerk and bears the sender's name and return address:

"Bobby Green # B-94805

P. O. Box W

California State Prison: Folsom

Represso, Calif. 95671"

Appellant does not specifically attack the admissibility of any of this evidence but argues that it fails to show that he served a "continuous completed period of prison incarceration." Respondent counters that the evidence suffices to show that appellant suffered a prior felony conviction and was sentenced to prison.

The evidence does establish that appellant was convicted, sentenced to prison, and in fact imprisoned in action No. 19418. What it does not show is that, when he committed the instant offense, this period of prison incarceration was completed.

In People v. Espinoza (1979) 99 Cal.App.3d 59, 159 Cal.Rptr. 894, the court held that a defendant recommitted to prison for an additional term upon revocation of parole nevertheless had completed service of his prior prison sentence and thus was subject to a section 667.5 enhancement. The court stated, in pertinent part:

"The truth is that section 667.5 does not define 'a continuous completed period of prison incarceration.' The best indication of what the Legislature meant by that expression is found, we believe, in section 3000 in which the Legislature speaks of the 'expiration of a term of imprisonment' in contradistinction to release on parole and 'completion of parole, or ... the end of the maximum statutory period of parole.' The language of section 3000 makes plain the legislative assumption that a term of imprisonment expires prior to release on parole. A term of imprisonment which has expired, has been 'completed.' We conclude, therefore, that a term of imprisonment is 'completed' at the expiration of the stated term notwithstanding the undoubted legal truism that additional imprisonment on revocation of parole is referable to and in legal theory a part of an original term and notwithstanding that for purposes of determining how many prior separate prison terms a convicted felon has suffered, reimprisonment upon revocation of parole not accompanied by a new commitment is 'included' in the prior prison term. Here, of course, defendant's reimprisonment upon revocation of parole would be accompanied by a new commitment is not included in the prior prison term. Of course, such reimprisonment accompanied by a new commitment cannot itself serve as a separate prior prison term in the event of yet another felony conviction at a future time, because for these purposes it will be a sentence 'in combination with ... sentences for other crimes.' " (Id., at pp. 72-73, 159 Cal.Rptr. 894.)

The court added:

"One of the primary purposes for the enactment of the determinate sentencing law and the entire legislative purpose in providing for enhanced sentences on account of prior convictions was to increase the penalties incurred by repeat offenders and thus, hopefully, deter recidivism. It is inconceivable that the Legislature intended to provide harsher treatment for a felon who has faithfully and successfully served his or her parole than for a felon who has committed yet another felony while on parole." (Id., at p. 74, 159 Cal.Rptr. 894.)

In People v. Ruiz (1982) 130 Cal.App.3d 758, 181 Cal.Rptr. 875, this court relied on Espinoza 's definition of "completed" and upheld an enhancement even though defendant's imprisonment was not interrupted by release on parole:

"There appears to be nothing in the statute or in logic that requires a period of imprisonment to be interrupted before separate enhancements may be imposed for terms that are completed while in prison. Thus, in the case at bench the five-year 1959 term for the possession of brass knuckles was served separately and completed in 1964 before the 1965 conviction for voluntary manslaughter for which he was sentenced to a term of six months to ten years. His term for the manslaughter conviction had been served when he was released on parole in 1975.

"Existing authority is not dispositive of the issue. However, in People v. Espinoza (1979) 99 Cal.App.3d 59 ..., the court stated '[a] term of imprisonment which has expired,...