PEOPLE v. FASHINA

Reset A A Font size: Print

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

The PEOPLE, Plaintiff and Respondent, v. Tokunbo FASHINA, et al., Defendants and Appellants.

No. B099525.

Decided: October 06, 1997

David P. Lampkin, Los Angeles, under appointment by the Court of Appeal, for Defendant and Appellant, Tokunbo Fashina. Dennis L. Cava, Pasadena, under appointment by the Court of Appeal, for Defendant and Appellant, Fred A. Jackson, Jr. Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Carol Wendelin Pollack, Senior Assistant Attorney General, John R. Gorey, Supervising Deputy Attorney General, and Louis W. Karlin, Deputy Attorney General, for Plaintiff and Respondent.

A jury convicted appellants, Tokunbo Fashina and Fred A. Jackson, Jr., and codefendant Jamal Barnes,1 of five counts of robbery, one count of attempted robbery and one count of discharging a firearm from a vehicle.   The convictions arose out of a series of robberies and attempted robberies of victims in West Los Angeles, West Hollywood and Beverly Hills between 4:45 and 6:00 p.m. on Sunday, January 22, 1995.   The crime spree ended at 6:02 p.m. when police arrested appellants and found some of the victims' property in their car.

In this appeal appellant Fashina argues three of his robbery convictions must be reversed for insufficiency of the evidence.   He contends the evidence is legally inadequate to establish he was present during these particular robberies.

Appellant Jackson argues the two-year enhancement (Pen.Code, § 12022.1) 2 for having committed the current offenses while released on bail pending trial of an unrelated matter must be reversed because the trial court failed to specifically find he was on bail at the time he committed the present offenses.

We conclude substantial evidence supports each of Fashina's robbery convictions.   We further conclude the on bail enhancement imposed against Jackson need not be reversed in the unique circumstances of this case where the trial court made it clear admitting the on bail allegation was part of the plea agreement to the primary offense and where the trial court during sentencing expressly noted Jackson was on bail when he committed the current offenses.   Accordingly, we affirm.

FACTS AND PROCEEDINGS BELOW ***

DISCUSSION

I. SUBSTANTIAL EVIDENCE SUPPORTS FASHINA'S CONVICTIONS FOR THE ROBBERIES OF ROSENTHAL, DAVIS AND WEINMAN.***II. IN THE CIRCUMSTANCES OF THIS CASE THE ON BAIL ENHANCEMENT NEED NOT BE REVERSED FOR LACK OF AN EXPRESS FINDING OR ADMISSION OF THE TRUTH OF THE SPECIAL ALLEGATION.

“The purpose of section 12022.1 [the on bail enhancement] is to meet public concern over offenders who are arrested then allowed back on the street a short time later only to commit more crimes.  (See ABA Project on Standards for Criminal Justice, Pretrial Release (Tent. draft 1968) § 5.5, p. 69;  Barker v. Wingo (1972) 407 U.S. 514, 519 & fn. 8, 92 S.Ct. 2182, 2186 & fn. 8, 33 L.Ed.2d 101.) Section 12022.1 deters this conduct by enhancing the punishment of persons who commit new felonies while awaiting trial on an earlier felony.  (People v. Superior Court (Price) (1984) 150 Cal.App.3d 486, 489, 198 Cal.Rptr. 61.)”  (People v. Lewis (1986) 185 Cal.App.3d 923, 927, 230 Cal.Rptr. 115.)

 Appellant Jackson does not deny he was properly subject to the two-year on bail enhancement under section 12022.1.   Instead, he contends the two-year enhancement cannot stand because the trial court did not expressly find, nor did he expressly admit, he was released from custody while on bail in the primary offense when he committed the secondary offenses as alleged in the complaint.   We conclude the on bail enhancement need not be reversed due to the unique factual circumstances of this case.   First, it is clear the parties intended for Jackson to admit to the on bail allegation as part and parcel of the plea agreement.   Second, although the trial court did not make an express formal finding of Jackson's on bail status, the court nevertheless made numerous and repeated factual statements concerning the fact Jackson was on bail when he committed the secondary offenses which in this case amounted to a finding the on bail allegation was true.   Thus, under these combined circumstances we conclude the two-year enhancement for the on bail allegation need not be reversed for lack of an express, formal finding.

In November 1994, Jackson was arrested and charged with possession of cocaine in People v. Jackson (Super.Ct. Los Angeles County 1994, No. BA103930).  (Health & Saf.Code, § 11350, subd. (a).)  While released from custody Jackson was arrested on the present offenses.   The information in the present case alleged Jackson committed each of the offenses while released from custody on bail in connection with case number BA103930 within the meaning of section 12022.1-the on bail enhancement allegation.   Both matters were assigned to Judge Robert T. Altman for trial.

Prior to trial the trial court granted Jackson's request to bifurcate trial of the primary offense and on bail allegation to prevent the jury from learning of the earlier charge until or unless they returned guilty verdicts.

After the jury began deliberations the court reminded counsel the primary offense and the on bail allegation remained to be tried.   The court stated:  “One remaining issue has to do with Mr. Jackson[,] we bifurcated the on bail allegation as to Mr. Jackson.   In other words, Mr. Jackson we haven't told the jury that you were charged with another crime and that you were on bail when this crime was committed by you.   It doesn't matter if the jury finds you not guilty but if the jury finds you guilty of any of the crimes then this allegation adds an additional time to the charge against you.  [¶] I want you to discuss with your lawyer how you want to handle that․”

After discussing the matter with counsel, Jackson decided he would prefer a court trial on the on bail allegation.   After appropriate admonitions and waivers the parties agreed that in the event the jury returned guilty verdicts the trial court could try the primary offense and on bail allegation at the sentencing hearing.

At the probation and sentencing hearing the court opened the session by again reminding counsel that trial of the primary offense and the on bail allegation were both scheduled for this hearing.   At the beginning of the hearing the court proposed a plea bargain to resolve both matters.  “Mr. Jackson has a trailing case, a violation of section 11350 possession of cocaine that's BA103930.   That case involves a situation where two rocks of cocaine were discovered in a vehicle that the defendant was in.  [¶] Concerning that case it's also the subject of an on bail allegation in the offense for which he is now here.   If the defendant wants to enter a no contest plea to that charge, I would add two years for the on bail allegation.   I would impose probation and then terminate probation in the possession case․  [¶] Do you want to discuss that with him?”

Jackson discussed the proposed plea bargain with counsel and agreed to accept the court's proposal and agreed to plead no contest to the possession charge.

After appropriate admonitions Jackson waived each of his constitutional rights and pled no contest to the possession charge.   The prosecutor stipulated to the procedure.   As agreed, the court imposed and then immediately suspended probation in the possession case.

It is clear the trial court's proposal expressly considered Jackson's plea to the primary offense and admission of the on bail allegation in exchange for no time on the primary offense.   However, in taking Jackson's plea the court did not specifically ask Jackson to admit, nor did the court expressly find, that as a result of his plea to the possession charge the on bail allegations charged in the secondary case were true.

 Section 12022.1 specifies an enhancement allegation under this section must be “pleaded in the information or indictment which alleges the secondary offense and shall be proved as provided by law ․” 3 (§ 12022.1, subd. (c);  3 Witkin & Epstein, Cal.Criminal Law (2d ed. 1989) Punishment for Crime, § 1481, p. 1762.)   When the allegation is tried to a jury they are generally provided verdict forms for this purpose which usually include the specific language, “We the jury find” the charge/allegation _ “true or not true.”   Failure of the jury to make such a finding is considered a finding in favor of the defendant.  (See, e.g., People v. Najera (1972) 8 Cal.3d 504, 105 Cal.Rptr. 345, 503 P.2d 1353, disapproved on another ground in People v. Wiley (1995) 9 Cal.4th 580, 587-588, 38 Cal.Rptr.2d 347, 889 P.2d 541 [enhancement for personally using a firearm in the commission of a robbery was waived by failing to request the necessary jury instruction or submit the requisite verdict forms].)

 When, as in this case, trial is to a court, the court must also make findings on factual matters.   If the court does not orally pronounce its findings and judgment on special issues, its silence operates as a finding the special allegation is not true.   This is also true in those instances where the defendant has admitted the truth of the special allegation.  (In re Candelario (1970) 3 Cal.3d 702, 91 Cal.Rptr. 497, 477 P.2d 729 [court struck prior conviction allegation from judgment because trial court neglected to state on the record the defendant had admitted the prior conviction allegation;  court's silence operated as a finding the prior conviction was “not true”];  People v. Mesa (1975) 14 Cal.3d 466, 121 Cal.Rptr. 473, 535 P.2d 337 [same];  People v. Gutierrez (1993) 14 Cal.App.4th 1425, 1439-1440, 18 Cal.Rptr.2d 371 [fact court made no findings on the prior felony conviction allegations, and did not even mention them until after sentencing, operated as a finding of “not true”];  People v. Garcia (1970) 4 Cal.App.3d 904, 907, 84 Cal.Rptr. 624 [fact court made no finding as to the first prior charged, but found the second and third to be true, operated as a “not true” finding on the first allegation];  People v. Molina (1977) 74 Cal.App.3d 544, 550, 141 Cal.Rptr. 533 [appellate court struck prior felony conviction enhancement from judgment because, although the defendant admitted it prior to trial, court neglected to find the allegation true in its oral pronouncement of judgment].)

 The court as the trier of fact is allowed somewhat more leeway in its terminology than is a jury for findings on special issues.   A court's findings are legally adequate if they are in “substantially the same form as required for general verdicts.”   Section 1167 specifies “When a jury trial is waived, the judge or justice before whom the trial is had shall, at the conclusion thereof, announce his findings upon the issues of fact, which shall be in substantially the form prescribed for the general verdict of a jury and shall be entered upon the minutes.”  (Italics added;  see also, 6 Witkin & Epstein, Cal.Criminal Law (2d ed.   1989) Judgment and Attack in Trial Court, § 3054, p. 3779.)   Thus, findings by the court may be in the form of a statement, such as “I find the _” charge/allegation true or not true, or its substantial equivalent.  (6 Witkin & Epstein, Cal.Criminal Law (2d ed.   1989) Judgment and Attack in Trial Court, § 3029, pp. 3745-3746 [a general verdict is a finding for or against the defendant in general terms].)

As all parties recognize, the trial court did not use the language of a formal finding.   The court did not expressly state Jackson was released from custody on bail in the primary offense when he committed the secondary offenses and therefore the on bail allegations alleged in the information were true.   The trial court, nevertheless, made numerous factual statements stating Jackson was in fact on bail when he committed the secondary offenses which we conclude under the circumstances of this case operate as a finding the on bail allegations were true.

Before sentencing Jackson on the secondary offenses, the trial court reviewed on the record the mitigating and aggravating factors listed in the probation report.   In doing so the court stated:  “He was on bail.   That's not an appropriate factor in aggravation.   However, because the Court is going to add two years for the enhancement and duplication of a factor no consideration [sic] is a factor in aggravation [sic].”  (Italics added.)

Later in sentencing when imposing the two-year term for the on bail enhancement, the court again essentially made a finding the on bail allegations were true.   The court stated:  “On count-on the 12022.1 on bail allegation which applies to all of the offenses that would add a total of two years for a total term of 14 years.”  (Italics added.)

The court's statements taken together-“He was on bail”-and-“the 12022.1 on bail allegation which applies to all of the offenses”-are the substantial equivalents of a finding-“I find the on bail allegations true.”

These statements of the trial court and the fact of the plea agreement in this case distinguish the present case from our decision in People v. Gutierrez, supra, 14 Cal.App.4th 1425, 18 Cal.Rptr.2d 371.   In Gutierrez, there was not a single mention of the yet-untried prior felony conviction allegations until after the trial court had pronounced sentence and had advised the defendants of their appeal rights.   There was no attempt to prove the truth of the allegations and the trial court made no findings whether the allegations were true or not.   The trial court simply decided to resolve the problem by staying punishment on the enhancements.   We held the trial court's failure to make findings was the same as findings the allegations were “not true.”  (14 Cal.App.4th at p. 1440, 18 Cal.Rptr.2d 371.)

In this case we are able to affirm the court's imposition of the on bail enhancement only due to the unique combined circumstances of a plea agreement in which the parties contemplated Jackson would also admit the allegation, and due to the court's numerous and repeated statements acknowledging Jackson's on bail status.   We nevertheless emphasize that in other circumstances a trial court risks reversible error in the event it fails to articulate on the record an express, formal, and unambiguous finding whether special allegations are true or untrue.

DISPOSITION

The judgments of conviction are affirmed.

FOOTNOTES

1.   Barnes is not a party to this appeal.

2.   All further statutory references are to the Penal Code unless otherwise indicated.

FOOTNOTE.   See footnote *, ante.

3.   Section 12022.1 provides in pertinent part:“(b) Any person arrested for a secondary offense which was alleged to have been committed while that person was released from custody on a primary offense shall be subject to a penalty enhancement of an additional two years in state prison which shall be served consecutive to any other term imposed by the court.“(c) The enhancement allegation provided in subdivision (b) shall be pleaded in the information or indictment which alleges the secondary offense and shall be proved as provided by law.   The enhancement allegation may be pleaded in a complaint but need not be proved at the preliminary hearing for the secondary offense․”

JOHNSON, Associate Justice.

LILLIE, P.J., and WOODS, J., concur.