People v. Price

• Decision Date: 25 March 1992
• Docket Number: No. D013262,D013262
• Citation: 4 Cal.App.4th 1272,6 Cal.Rptr.2d 263
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Michael Edward PRICE, Defendant and Appellant.

Page 263

6 Cal.Rptr.2d 263

4 Cal.App.4th 1272

The PEOPLE, Plaintiff and Respondent, v. Michael Edward PRICE, Defendant and Appellant.

No. D013262.

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

March 25, 1992.

Certified For Partial Publication. ¹

Rehearing Denied April 23, 1992.

Review Denied June 10, 1992.

[4 Cal.App.4th 1274] Dennis L. Cava, Beverly Hills, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., and Pat Zaharopoulos and Sara Gros-Cloren, Deputy Attys. Gen., for plaintiff and respondent.

WIENER, Acting Presiding Justice.

Defendant Michael Edward Price appeals from the judgment entered on the jury verdict convicting him of residential burglary (Pen.Code, §§ 459, 460) ², his guilty plea to petit theft with a prior (§§ 484, 666) and the court's determination he had previously been convicted of three serious felonies pursuant to section 667, subdivision (a). Price claims the court applied an incorrect standard in denying his motion for new trial and made sentencing errors. He therefore asks us to strike one five year enhancement and remand for resentencing. We reject these contentions and affirm the judgment.

I NEW TRIAL MOTION

Price's conviction of first degree burglary was based primarily on Edward Koperda's testimony. Koperda testified he recognized Price leaving the apartment of Collette Pack carrying "a ghetto blaster." The testimony of a single witness, here, Koperda's, is sufficient to support Price's burglary conviction. Nonetheless because of the alleged weakness in the prosecution's case, Price challenges the court's denial of his new trial motion directing us to the court's statement made at the time of its ruling:

"Okay. And, counsel, I did read and consider the points and authorities, and I didn't take it lightly, but I respectfully deny the request for a new trial. I think the evidence was sufficient, and I think that the jury--there was enough evidence there for the jury to do what the jury did ..." (Emphasis added.)

Based on the foregoing highlighted statements Price argues the record strongly suggests the court "did not give [him] a second decision on the weight of the evidence." He therefore claims he is entitled to a further hearing on his new trial motion.

Price correctly explains that in ruling on a motion for a new trial the trial court must independently weigh the evidence (People v. Serrato (1973) 9 Cal.3d 753, 761, 109 Cal.Rptr. 65, 512 P.2d 289; overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 189 Cal.Rptr. 855, 659 P.2d 1144.) An unsuccessful litigant is first entitled to a decision by the jury and then independently by the judge who must consider the sufficiency of the evidence, weigh the conflicts and inconsistencies and evaluate the credibility of witnesses. In making this determination the court must use its own judgment and cannot rely on the jury's conclusions. (People v. Navarro (1946) 74 Cal.App.2d 544, 554, 169 P.2d 265.)

Because of the trial court's unique position to perform these duties an appellate court will not set aside such rulings except where it clearly appears the trial court abused its broad discretion. (People v. Sarazzawski (1945) 27 Cal.2d 7, 16, 161 P.2d 934.) We conclude here the court applied the correct test.

The court first denied the request for new trial, and then said, "I think the evidence was sufficient." Only after making this statement did the court say "there is enough evidence there for the jury to do The principles underlying the granting or denying of a new trial motion are not arcane. Lawyers and judges are well aware there is no more awesome power than that of the trial court in determining whether to grant or deny a new trial motion. In a jury trial it is the only time the court must exercise independent judgment in weighing the evidence. Here the court's burden was unusually heavy since the theft of the ghetto blaster, not a particularly egregious crime in the abstract, necessarily triggered a substantial prison sentence in light of the three five year enhancements required by section 667 subdivision (a). Although it would have been preferable for the court to have been more specific, stating it was denying the motion based on its independent weighing of the evidence, its failure to do so and its use of less than artful language cannot be equated with having applied the wrong standard. We therefore reject Price's argument.

what the jury did ..." In other words the court's exercise of its independent judgment is reflected in its statement that the evidence was sufficient. The court's further comment there was substantial evidence to support the jury's determination is surplusage.

II SENTENCING ERRORS

THE COURT DID NOT ERR IN IMPOSING A FIVE YEAR ENHANCEMENT UNDER SECTION 667, SUBDIVISION (a) FOR THE PRIOR ROBBERY CONVICTION

On October 27, 1989, a security guard at a K-Mart store saw Price take $17 worth of cigarettes without paying for them. Price admitted the theft to the arresting officer. The information in this case charged Price with petit theft under section 484 and having been previously convicted of robbery and having served a term therefor in a penal institution within the meaning of section 666. ³ Price pled guilty to this charge and the court sentenced him to an eight month subordinate term for this offense. ⁴ The same robbery conviction also resulted in a five year enhancement under section 667, subdivision (a). Price contends that punishing him twice for the identical robbery conviction is unlawful and we should strike the enhancement based on the robbery.

Price rests his argument on two California Supreme Court decisions, People v. Edwards (1976) 18 Cal.3d 796, 135 Cal.Rptr. 411, 557 P.2d 995, and People v. Wilks (1978) 21 Cal.3d 460, 146 Cal.Rptr. 364, 578 P.2d 1369, each of which held a sentence is improper where it allows the same prior to be used both as an element of the substantive offense and to enhance punishment for that offense. (Edwards, 18 Cal.3d at p. 800, 135 Cal.Rptr. 411, 557 P.2d 995; Wilks 21 Cal.3d at p. 470, 146 Cal.Rptr. 364, 578 P.2d 1369.) More specifically Price directs us to the following statement in People v. Ancira (1985) 164 Cal.App.3d 378, 382, 210 Cal.Rptr. 527,

"Ancira correctly contends that the court improperly imposed a one-year enhancement under Penal Code section 667.5 for the prior burglary conviction that was the basis for the charge of violating Penal Code section 666. The clerk's transcript and the court's comments at the sentencing hearing demonstrate that an enhancement was imposed for the burglary underlying the section 666 violation. This was impermissible. [Citation.]"

Price asserts "the Supreme Court's decisions in Edwards and Wilks comport with the fundamental principle, that a defendant not be punished more than once for the same act, which is embodied in section 654 of the Penal Code."

Initially we reject Price's suggestion that section 654 applies to this case. Section 654 provides in part: "An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one...." This provision by its terms refers to an act or omission, here, the act of committing robbery. In this case Price's conduct in committing the earlier robbery is not in issue. Rather it is his status as having been convicted of that offense on an earlier occasion which triggers application of section 666 as it relates to the petit theft and section 667, subdivision (a) as it relates to his conviction of residential burglary, a serious felony. Section 654 is inapplicable.

In reaching this conclusion we wish to emphasize we do not accept the Attorney General's assertion that section 654 does not apply to enhancements. We have expressly held to the contrary stating "it is now well-accepted that section 654 applies to enhancements. [Citations.]" (People v. Dobson (1988) 205 Cal.App.3d 496, 501, 252 Cal.Rptr. 423, citing cases in accord and contra.)

On the merits of the argument Price concedes People v. Rodriguez (1988) 206 Cal.App.3d 517, 253 Cal.Rptr. 633; People v. Levell (1988) 201 Cal.App.3d 749, 753, 247 Cal.Rptr. 489; and People v. Bruno (1987) 191 Cal.App.3d 1102, 1107, 237 Cal.Rptr. 31, sharply disagree with People v. Ancira, supra, 164 Cal.App.3d 378, 210 Cal.Rptr. 527....