People v. Rodriguez

• Decision Date: 23 February 1984
• Docket Number: Cr. 43639
• Citation: 152 Cal.App.3d 289,199 Cal.Rptr. 433
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Rudolf Rudy RODRIGUEZ, Defendant and Appellant.

Page 433

199 Cal.Rptr. 433

152 Cal.App.3d 289

The PEOPLE of the State of California, Plaintiff and Respondent, v. Rudolf Rudy RODRIGUEZ, Defendant and Appellant.

Cr. 43639.

Court of Appeal, Second District, Division 7, California.

Feb. 23, 1984.

[152 Cal.App.3d 291] Quin Denvir, State Public Defender, and Ernest Martinez, Deputy State Public Defender, for defendant and appellant.

John K. Van de Kamp, Atty. Gen., Norman H. Sokolow and Pamela M. Nelson, Deputy Attys. Gen., for plaintiff and respondent.

INTRODUCTION

JOHNSON, Associate Justice.

Appellant was convicted of child molestation. He was sentenced as a recidivist to eight years in prison with a ten-year enhancement.

Appellant claims error on the basis of the enhancement only. His appeal raises the following two issues: first, whether the trial court erred by allowing the prosecution to reopen its case at the sentencing hearing and submit additional proof of appellant's two prior convictions for sex offenses; and second, whether the trial court is precluded from imposing enhancements for both prior convictions on the ground that a specific finding was made only on one of them.

We hold in light of the significance of the new evidence the court did not abuse its discretion by reopening the case. We also hold that since the trial court, by clear implication, found both prior convictions were true, enhancements may be imposed for both of them.

I. FACTS AND PROCEEDINGS BELOW.

An amended information charged appellant with child molestation in violation of Penal Code section 288, subdivision (a) ¹ and with two prior convictions of child molestation, also in violation of section 288, subdivision (a). One of these alleged prior convictions occurred in 1952 and the other occurred in 1976. ² Appellant pleaded not guilty and denied the priors.

Since appellant challenges the judgment on the basis of the two priors rather than on the basis of his conviction for the substantive crime, we focus our discussion of the facts on the evidence introduced to prove the priors.

Three items of evidence were introduced at the court trial ³ to prove the 1952 conviction. First, the prosecution asked the court to take judicial notice of the California Supreme Court case of In re Rodriguez (1975) 14 Cal.3d 639, 122 Cal.Rptr. 552, 537 P.2d 384, in order to prove a Rudolf A. Rodriguez had served 22 years for a 1952 conviction of section 288. Second, the prosecutor introduced the preliminary hearing transcript as evidence of the 1952 conviction. That transcript included appellant's testimony in which he explained he served 20 years in prison for the 1952 conviction and boasted that he himself wrote the successful writ of habeas corpus arguing the sentence he received amounted to cruel and unusual punishment. Third, appellant's parole officer testified appellant's Department of Corrections' file included the 1952 conviction, among others, in a summary of all of appellant's prior convictions. The parties agree this file was not certified.

One item of evidence was introduced to prove the 1976 conviction. This evidence consisted of testimony by appellant's parole agent that appellant had been placed on parole for a 1976 conviction of child molestation in violation of section 288.

At the close of the trial, the court found appellant guilty as charged, but took the issue of the proof of the two priors under submission until the probation and sentencing hearing (hereinafter, "the sentencing hearing"). Accordingly, the judge continued the proceedings until that hearing and indicated he would decide the matter at that time.

At the sentencing hearing, over objection, the court allowed the prosecution to reopen its case. The court received into evidence certified documents from the Department of Corrections (hereinafter "the certified documents") which proved both priors.

At the conclusion of the hearing, the court made the following remarks with regard to probation and sentencing:

"This is a probation and sentencing hearing.

"Well, perhaps before I say that, I'll find the alleged prior to be true, conviction of 288 of the Penal Code. I'm not through reading it. 1976, I believe. Yes. That's the one where Judge Choate pronounced sentence....

"[C]ounty jail time is, of course, out of the question.

"When it comes to sex offenses committed against small girls, Mr. Rodriguez has become a legend. His career in that regard starts with a juvenile arrest and continues unabated. Mr. Rodriguez has never been out of state prison, as near as I can guess, for more than a few months at a time, and because of his present predilection, weakness for girls that are much too young, he's demonstrated over and over again that he's incorrigible and a danger. The county jail is not made for people who do things like that to little girls. It is, unfortunately, a disappointment.

"Mr. Rodriguez has to be kept away. How long it's going to take him to burn out, so to speak, is something that I can't say.

"Well, as far as sentence is concerned, probation is denied. Mr. Rodriguez is sentenced to state prison to the high term prescribed by law, which is eight years. The circumstances in aggravation are overwhelming and need not be listed in any detail. I incorporate everything in the probation report.

"This one prior in '76 that I found to be true leads to an enhancement of ten years, if I read that code section correctly. By virtue of the prior, he does another ten years. That's eighteen years....

"I could make it twenty-eight, but I'm just a little reluctant to do so. All right. Eighteen years."

Thus, as to the court's findings on the two priors, the court mentioned the 1976 conviction, but did not specifically mention the 1952 conviction. Instead, the court referred generally to appellant's lengthy record of sex offenses committed against young children. The court then sentenced appellant to state prison for the upper term of eight years for the instant child molestation conviction, with a ten-year enhancement for the 1976 prior.

The court executed a minute order and an abstract of judgment. The abstract of judgment reflects that the sentence enhancement was imposed based on two prior convictions, rather than one. Both documents reflect that the sentence enhancement was imposed under section 667.51, subdivision (c).

Appellant filed a timely notice of appeal.

Appellant urges two grounds for reversal of the sentence enhancement. First, appellant argues the trial court abused its discretion by allowing the prosecution to reopen its case at the sentencing hearing and introduce the certified documents to prove the priors. Second, appellant argues the trial court erred by imposing a ten-year enhancement since only one prior conviction was specifically found to be true.

II. IN LIGHT OF THE SIGNIFICANCE OF THE NEW EVIDENCE, THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY ALLOWING THE PROSECUTION TO REOPEN ITS CASE.

It is well settled that the trial court has broad discretion to order a case reopened and allow the introduction of additional evidence. (Pen.Code § 1094; People v. Newton (1970) 8 Cal.App.3d 359, 383, 87 Cal.Rptr. 394; People v. Frohner (1976) 65 Cal.App.3d 94, 110, 135 Cal.Rptr. 153.) No error results from granting a request to reopen in the absence of a showing of abuse. (People v. Benc (1900) 130 Cal. 159, 165, 62 P. 404.) Moreover, the appellate court decisions upholding an order allowing the prosecution to reopen its case are legion. (E.g., People v. Garvey (1979) 99 Cal.App.3d 320, 324, 160 Cal.Rptr. 73 [trial judge has discretion to reopen prosecution's case even after defense has rested]; see also Witkin, Crim.Proc., "Trial," § 434, pp. 435-436 and cases collected therein.)

"Factors to be considered in reviewing the exercise of [the trial court's] discretion include the stage the proceedings had reached when the motion was made, the diligence shown by the moving party in discovering the new evidence, the prospect that the jury would accord it undue emphasis, and the significance of the evidence." (People v. Newton, supra, 8 Cal.App.3d 359, 383, 87 Cal.Rptr. 394, citations omitted, emphasis added.)

In urging that admitting the certified documents was an abuse of discretion, appellant first argues the prosecution failed to diligently obtain those documents. According to appellant, the trial court abused its discretion by ordering the case reopened in the face of the prosecution's lack of diligence. Appellant also argues the sentencing hearing was such a late stage in the proceedings, it was an abuse to allow the case reopened at that time. We disagree with both of these contentions.

Presumably one of the reasons underlying the requirement of diligence is that a jury may accord undue weight to evidence which is admitted close to the time deliberations begin. Since the trial in the instant case was conducted by the court, however, it was unnecessary to consider that a jury might misuse the newly admitted evidence. And in any event, admitting the evidence at the late stage of the proceedings here does not necessarily constitute an abuse since even when a trial is conducted by a jury, the court has discretion to reopen after the jury begins deliberations. (People v. Newton, supra, 8 Cal.App.3d 359, 383, 87 Cal.Rptr. 394; People v. Frohner, supra, 65 Cal.App.3d 94, 110, 135 Cal.Rptr. 153.)

We recognize a sentencing hearing is the last stage in a criminal trial. We also recognize another reason for the requirement of diligence is that a defendant must be informed of the nature of the evidence against him so that he can properly defend the action. Here, however, the specific question of the proof of the priors had been an issue in the case since the information was filed. Moreover, none of the evidence introduced was disputed. Under these circumstances we do not believe that the new evidence, related entirely to the issue of the priors, caught appellant by surprise or imposed an...