People v. Jackson

• Court: California Court of Appeals
• Writing for the Court: KING; LOW, P.J., and HANING
• Citation: People v. Jackson, 231 Cal.Rptr. 889, 187 Cal.App.3d 499 (Cal. App. 1986)
• Decision Date: 26 November 1986
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Bennie Lewis JACKSON, Defendant and Appellant. A026594.

Page 889

231 Cal.Rptr. 889

187 Cal.App.3d 499

The PEOPLE of the State of California, Plaintiff and Respondent, v. Bennie Lewis JACKSON, Defendant and Appellant.

A026594.

Court of Appeal, First District, Division 5, California.

Nov. 26, 1986.

Rehearing Denied Dec. 11, 1986.

John K. Van de Kamp, Atty. Gen., David D. Salmon, John W. Runde, Deputy Attys. Gen., San Francisco, for plaintiff and respondent.

Harry Gruber, Gruber & Dawson, San Jose, for defendant and appellant.

KING, Associate Justice.

In this multi-issue appeal we hold, among other things, that (1) trial counsel was incompetent in failing to move for exclusion of prior felony convictions for impeachment purposes, requiring a limited remand on the issue of prejudice from the incompetence; (2) counsel was arguably incompetent in failing to take steps to facilitate impeachment of a defense witness, but any error was harmless; and (3) the trial court failed to exercise its discretion to impose or strike two five-year enhancements for prior serious felony convictions.

Bennie Lewis Jackson appeals from a judgment of conviction for burglary and attempted robbery. We reverse and remand for further proceedings on the issue of attorney incompetence and for resentencing.

On the morning of August 5, 1983, a man burglarized a motel room where Robin and Carol Sherlock temporarily resided with their stepfather. Carol was in the room when the intruder entered. He displayed a kitchen knife and demanded money from her, and then attempted to tie her hands, placing the knife on a bed while he did so. At that point Robin entered the room. Carol grabbed the knife and screamed; Robin ran out of the room, also screaming. The intruder tried unsuccessfully to wrestle the knife from Carol. He then fled the room, ran outside to a parked car, and drove off.

Robin had sought help outside from Richard Cerecerez and another man. The intruder passed the three on his way to his car. At trial Robin and Cerecerez identified Jackson as the intruder.

As the perpetrator drove off, Cerecerez memorized the car's license plate number. The police subsequently determined that the car was registered to Jackson's wife. Shortly after noon the police arrested Jackson in front of his residence. Jackson told an officer that no one other than him had driven the car that morning. Later that afternoon the officer showed the perpetrator's knife to Doris Horad, who lived with Jackson and his wife; Horad said the knife was similar to one that belonged to Jackson's wife but was missing from the kitchen.

At the outset of trial Jackson admitted a prior prison term (Pen.Code, § 667.5, subd. (b)) and two sets of prior serious felony convictions (Pen.Code, § 667), one set consisting of four felonies and the other set consisting of 18 felonies. At trial Jackson presented an alibi defense. The jury convicted him of burglary (Pen.Code, § 459) and attempted robbery (Pen.Code, §§ 211, 664) with personal use of a knife (Pen.Code, § 12022, subd. (b).)

Jackson, who had been represented by retained counsel, subsequently retained a different attorney and moved for a new trial based on ineffective assistance of counsel. (People v. Fosselman (1983) 33 Cal.3d 572, 582-583, 189 Cal.Rptr. 855, 659 P.2d 1144.) After an evidentiary hearing at which Jackson's first attorney testified at length, the court denied the motion and imposed sentence. The court sentenced Jackson to 18 years' imprisonment, consisting of the upper term of six years for the burglary, a one-year enhancement for use of the knife in the burglary, another one-year enhancement for the prior prison term, and two five-year enhancements for the two sets of prior serious felony convictions (plus stayed terms for the attempted robbery with use of the knife).

I. INCOMPETENCE OF TRIAL COUNSEL

A. Failure to make suppression motion based on warrantless arrest.

In his new trial motion Jackson made five separate claims of incompetence of counsel (People v. Fosselman, supra, 33 Cal.3d 572, 189 Cal.Rptr. 855, 659 P.2d 1144; People v. Pope (1979) 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859), which he renews on appeal. The first is that counsel was incompetent in failing to move to suppress the post-arrest statements by Jackson and Doris Horad (Pen.Code, § 1538.5) based on the failure of the police to obtain a warrant for Jackson's arrest. Jackson relies on the rule set forth in People v. Ramey (1976) 16 Cal.3d 263, 276-277, 127 Cal.Rptr. 629, 545 P.2d 1333, that warrantless arrests within the home are per se unreasonable in the absence of exigent circumstances.

Jackson has not shown that "trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates." (People v. Pope, supra, 23 Cal.3d at p. 425, 152 Cal.Rptr. 732, 590 P.2d 859.) The police report indicated Jackson was arrested outside his home after being asked out by the police. Under such circumstances an arrest is lawful. (People v. Green (1983) 146 Cal.App.3d 369, 377, 194 Cal.Rptr. 128; People v. Tillery (1979) 99 Cal.App.3d 975, 979-980, 160 Cal.Rptr. 650.)

Jackson testified at the hearing on the new trial motion that he told trial counsel an officer had displayed a gun and told him to step out of the house. ¹ But because the court denied the motion, it must be presumed the court disbelieved Jackson's claim that he related these facts to counsel. Under the facts as impliedly determined by the court, there was no cause for competent counsel to make a suppression motion based on Ramey, because the police report indicated Jackson's arrest was lawful under existing authority.

Even if Jackson had related his claimed version of the arrest to counsel, it seems a competent attorney still might have seen no Ramey issue. Two Court of Appeal justices discerned no Ramey problem under even more compelling circumstances in People v. Trudell (1985) 173 Cal.App.3d 1221, 1228-1231, 219 Cal.Rptr. 679, in which an officer, accompanied by other officers with weapons drawn, used a loud speaker to order the defendant to leave his house and keep his hands in plain view. ²

B. Failure to move for exclusion of priors for impeachment purposes.

Jackson next asserts trial counsel was incompetent in failing to move for an order precluding the prosecutor from impeaching him with his prior felony convictions should he testify.

The trial occurred prior to People v. Castro (1985) 38 Cal.3d 301, 211 Cal.Rptr. 719, 696 P.2d 111, which held that under Proposition 8 a trial court retains discretion to preclude a prosecutor from impeaching witnesses with prior felony convictions involving moral turpitude. At the outset of trial the court informed counsel that Jackson's priors could not be brought to the jury's attention except to impeach Jackson should he testify. Because the judge did not state clearly on the record that he was permitting such impeachment in the exercise of his discretion, it must be presumed the judge erroneously believed he was compelled under Proposition 8 to permit impeachment. (People v. Collins (1986) 42 Cal.3d 378, 389, fn. 9, 228 Cal.Rptr. 899, 722 P.2d 173.) But because defense counsel never actually made a motion to preclude such impeachment, the presumed Castro error is not cognizable on appeal. (See id., at p. 389, 228 Cal.Rptr. 899, 722 P.2d 173.) Thus the impeachment issue arises within the context of attorney incompetence.

The threshhold question is whether counsel was incompetent in failing to make the motion. The answer must be yes. Given the strength of pre-Proposition 8 law favoring exclusion of priors for impeachment, and the extremely unsettled state of the law during the period between the passage of Proposition 8 and the decision in Castro, a reasonably competent attorney acting as a diligent advocate would have moved to preclude impeachment with the priors.

The Attorney General asserts the court settled the impeachment issue at the outset of trial and thus a formal motion would have been futile. Competent counsel, however, would have at least taken steps to preserve the point for appeal pending clarification of the law by the appellate courts. ³

The next question is whether counsel's incompetence in failing to make the motion resulted in prejudice to Jackson. (People v. Fosselman, supra, 33 Cal.3d at p. 584, 189 Cal.Rptr. 855, 659 P.2d 1144.) This issue cannot be determined on the present record. First, the record does not indicate whether the trial court would have exercised its discretion to preclude impeachment had the motion been made. Second, Jackson did not testify, so that it is impossible to speculate what his testimony would have been had there been a successful motion. ⁴ (The failure to testify did not preclude a claim of Castro error, because trial occurred before the decision in People v. Collins, supra, 42 Cal.3d at p. 388, 228 Cal.Rptr. 899, 722 P.2d 173, which only prospectively adopted the rule that denial of the motion is not reviewable if the defendant failed to testify.)

The appropriate approach is to remand the cause for the trial court to determine the issue of prejudice from counsel's incompetence, in a manner similar to the procedure prescribed in People v. Collins, supra, 42 Cal.3d at pages 393-395, 228 Cal.Rptr. 899, 722 P.2d 173, for pre-Collins error under Castro where the defendant did not testify. We reverse the judgment and remand the cause to allow the trial court to decide the issue of prejudice by first receiving an in camera offer of proof as to what Jackson's testimony would have been, and then determining (1) whether the court would have exercised its discretion to preclude impeachment in light of the offer of proof, and (2) if so, whether Jackson was prejudiced by the incompetence in light of the offer of proof. If the trial court finds either that it would have permitted impeachment or that it would have precluded impeachment but Jackson was not prejudiced, it should reinstate the...