THE PEOPLE v. JOHN CASTELLANOS (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

A jury found John Steven Castellanos guilty of petty theft with a prior.   On appeal, he argues that the court's failure to bifurcate his theft crime priors and to instruct the jury sua sponte not to consider those priors as evidence of his guilt prejudiced him.   We affirm the judgment.

BACKGROUND

On November 6, 2009, the district attorney filed an information that charged Castellanos with the commission of a petty theft (Pen.Code, § 666) ¹ on April 24, 2009;  that alleged a first degree burglary prior (§ 459) and two robbery priors (§ 211) as theft crime priors (§ 666), as strike priors (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)), and as prison term priors (§ 667.5, subd. (b));  and that alleged a grand theft prior (§ 666), a driving-or-taking-a-vehicle prior (Veh.Code, § 10851, subd. (a)), and a different first degree burglary prior (§ 459) as additional prison term priors (§ 667.5, subd. (b)).

On December 15, 2009, the first day of trial, the court granted Castellanos's Faretta ² motion to discharge the public defender's office as his counsel of record and to represent himself at trial.   Jury voir dire began.

On December 17, 2009, the second day of trial, the court granted his motion to bifurcate the trial of the prison term priors (§ 667.5, subd. (b)).  Jury voir dire ended and, after the jury was sworn, both parties presented evidence and rested.

On December 18, 2009, the third day of trial, a jury found Castellanos guilty of petty theft (§ 666) and found true the allegations of a first degree burglary prior (§ 459) and two robbery priors (§ 211) as theft crime priors (§ 666).   The court struck the prison term priors (§ 667.5, subd. (b)) in the interests of justice and, with his consent, reappointed the public defender's office to represent him at sentencing.

On December 29, 2009, Castellanos requested an exercise of discretion by the court to strike two of his three strike priors (§§ 211, 459, 667, subds.(b)-(i), 1170.12, subds. (a)-(d)) in the interest of justice (§ 1385).  (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.)   The court granted his request and imposed a four-year state prison sentence (double the two-year midterm).

DISCUSSION

Preliminarily, we summarize the record.   On the first day of trial, the court noted that the priors the information alleged as theft crime priors (§ 666) were identical to the priors the information alleged as strike priors (§§ 667, subds.(b)-(i), 1170.12, subds. (a)-(d)) and that the information alleged “three 667.5(b) priors.”   The court said, “Since Mr. Castellanos wants a jury trial on the (d) [strike] priors, and since they are also part of the basic charge in this case, in other words, they're what makes the petty theft into a felony, we will go ahead and we will try to those cases [sic ], try those charges along with the Information.”   The court promised “to voir dire the jury to make sure that they are not prejudiced against Mr. Castellanos because of the three strike allegation, and we'll also have to voir dire them on whether or not they can be fair, or in light of the fact this is a three strikes case, in general.”

In reply, Castellanos's trial attorney repeated “just for the record” his earlier request in chambers that the court “sanitize the prior felony convictions for purposes of the Information only.”   The court countered, “Well, we can't sanitize them when they're part of the basic charge in the case.”   His trial attorney replied, “Okay.” The court stated that “the jury has to be able to make a finding as to whether those convictions were sustained by the defendant.   That's part of the charge.”   Castellanos's trial attorney replied, “Right,” adding, “Also, request that we could probably stipulate just for the purpose of Information that he does have a prior conviction so the jury won't hear about that.”   The court stated, “They're going to hear about it anyway because it's the part of these wants [sic ] a jury trial on its (d) priors, so they're going to hear about it.”

After the granting of Castellanos's Faretta motion, voir dire began.   The court, reading the information to prospective jurors, noted that he was “charged with petty theft with a prior conviction of theft-related convictions [sic ]” of a violation of “Section 459, burglary in the first degree, of the California Penal Code, on or about the 8th of March, 1983,” and two violations of “Section 211 of the California Penal Code, on or about the 8th of March, 1983.”   The court added, “Judgments against the defendant pronounced and rendered, and the defendant has served time of incarceration therefore.”

The court continued the reading of the information to prospective jurors, noting the allegations that Castellanos had “suffered prior convictions pursuant to 667(d) of the Penal Code” “on or about the 8th of March, 1983,” each of which was a “serious felony,” one of which was a “burglary in the first degree, a violation of 459 of the Penal Code,” two of which were robberies “in violation of 211 of the Penal Code.” The court noted the allegation that “there are some additional prior convictions which we will get to if we -if the defendant is convicted, we will have a separate hearing on those.”

The court informed prospective jurors that Castellanos was “charged under the three strikes law” and asked, “Is there anyone on the panel at the present time who feels strongly about that law, one way or the other, such that they feel they could not be fair and impartial as a juror in such kind of a case?”   One prospective juror acknowledged his “reservations about the possible effect of such a conviction” but thought he could be “fair and impartial” in deciding “whether the evidence showed what he's charged with.”   Another prospective juror, asked if he “could be fair and impartial and sit as a juror” in a three strikes case, answered, “No,” and the court excused him.   Later, reiterating Castellanos's “charge under the three strikes law,” the court asked all prospective jurors together, “Do you have any feelings about that which would prevent you from being fair and impartial to both sides?”   The sole response was a single prospective juror's question about the jury's duty after a conviction, if any.  “You don't decide what happens;  I do,” the court replied, noting that in deciding whether he was guilty or not guilty the jury was “not to consider the penalty or punishment.”

On the second day of trial, the court put on the record, outside the presence of the jury, the prosecutor's observation that, in the court's words, Castellanos “wanted to admit the priors or something or other so that they would not be coming before the jury;  is that right?”   Castellanos replied that he did not understand the meaning of “admit the priors,” asked why “the parole department is going to come in here and tell the jury about a bunch of stuff about [his] past history,” and expressed his belief that “as long as [he didn't] get up on that stand” his past history was constitutionally irrelevant to “the petty theft [he was] fighting.”   The court responded:

“When you - you decided that you wanted to have a jury trial on your prior convictions, which is your right.   When you did that, then we had the three -the prior convictions, the strike convictions, that are the convictions that are alleged as the offenses that make your theft a petty theft.   So the jury is going to have to hear the fact that this was a three strikes case, at some point.   So that meant that I had to voir dire the jurors about whether or not they could be fair in a three strikes case.   And that meant that since that was the case, there is no point in not having a trial on the - not having them decide those prior convictions as part of the petty theft charge.

“So, the situation is that they have to hear that you have been convicted of these offenses in order for them to find you guilty of the offense that you're charged with.”

Castellanos asked, “But why is that?   Why do they need to hear about my past history?”   The court replied, “They don't know about your past history,” and elaborated, “That will happen later.   Those will be bifurcated.”   The court reiterated, “They are not going to hear about the prior, the (b) convictions.”   He asked, “So the parole department is not coming in until I go to the second one.”   The court responded, “Until if you are convicted.”   At the end of the dialogue, Castellanos said he was ready to proceed.

After the jury was sworn, given some general instructions, and excused for a brief recess, the court opened another dialogue with Castellanos.  “You're not allowed to get up and make statements about facts that the jurors don't know anything about,” the court informed him.  “Okay,” he replied, “But what gives [the prosecutor] the right?”   The court said, “He doesn't have that right.”

The dialogue quickly focused on his priors.   The court recalled that Castellanos “told the jurors something about the reason you're not testifying in this case is because of these priors convictions [sic ].”   The court suggested, “You might want to consider that.   I'm not trying to advise you as to what you should or should not do.   But since they already have knowledge of these priors convictions [sic ] -.” He replied, “Yeah, I might as well get up there.”   Agreeing, the court said, “You might as well get up there,” yet cautioned him, “But that's not a reason to decide to not to testify, okay.”   He concluded, “The reason why I was saying this is because if I do lose, on my appeal my constitutional rights have been violated by you letting the jury know that I have priors.”

The prosecutor's last witness was a crime scene technician, who compared the fingerprints in his booking packet and his prison packet, on the basis of which she opined both were from “the same person.”   The court admitted his booking packet and his prison packet into evidence.  (Peo. Exh. 9, 10;  § 969b.)

With commendable candor, the Attorney General acknowledges that the court “erred when it refused to bifurcate the prior convictions” and that the court “should have instructed the jury not to consider [the] theft-related prior convictions as tending to prove he was guilty of the petty theft.”   We concur.   The sole question still before us, then, is whether the errors were prejudicial.

Our determination of whether there was prejudice depends, of course, on an analysis of the evidence at trial.   The prosecution evidence was overwhelming.   A man saw a station wagon he had never seen before in the driveway he and his next-door neighbor share.   He saw Castellanos go from his neighbor's backyard to the station wagon and put bicycles, hand tools, rakes, shovels, and other property into the station wagon.   He recognized the bicycles as the ones he saw his neighbor's children ride, spoke with Castellanos to “find out what he was doing there,” and called both his neighbor and the sheriff's office.   Sheriff's deputies located the station wagon in the driveway of another house and noticed the similarity of the neighbor's description of the man who took the property to the man who came to the door.   The neighbor identified the bicycles and other property at the other house as his and his children's.   Some of the bicycles had his children's names on them.   Neither he nor his wife gave Castellanos or anyone else permission to take that property.

The defense evidence, on the other hand, was nil.   Castellanos called a single witness for the defense, a sheriff's deputy whom he asked three questions, one of which he withdrew, the other two of which drew rulings sustaining irrelevance objections by the prosecutor.   With commendable candor, his appellate attorney comments, “There was no significant defense evidence.”

With reference to bifurcation of the priors, a court “has the discretion, in a jury trial, to bifurcate the determination of the truth of an alleged prior conviction from the determination of the defendant's guilt of the charged offense, but is not required to do so if the defendant will not be unduly prejudiced by having the truth of the alleged prior conviction determined in a unitary trial.”  (People v. Calderon (1994) 9 Cal.4th 69, 72.)   The standard of review is abuse of discretion.  (Id. at p. 79.)   Our duty is to review the court's ruling for an abuse of discretion on the basis of the record both at the time of and after the court's ruling.  (People v. Burch (2007) 148 Cal.App.4th 862, 867, citing People v. Mendoza (2000) 24 Cal.4th 130, 162 (Mendoza );  People v. Price (1991) 1 Cal.4th 324, 388.)

With reference to instruction on the priors, a court has a duty to instruct the jury, even in the absence of a request, on the general principles of law that are closely and openly connected to the facts and that are necessary for the jury's understanding of the case.  (People v. Benavides (2005) 35 Cal.4th 69, 111.)   On appeal, the error is subject to independent review.   (People v. Posey (2004) 32 Cal.4th 193, 218.)   We may not reverse the judgment unless a verdict more favorable to the appellant was reasonably probable in the absence of the error.  (Mendoza, supra, 24 Cal.4th at p. 177, citing People v. Watson (1956) 46 Cal.2d 818, 836.)

By the governing standards of review, the record persuades us that neither of the court's errors was prejudicial.   In light of our holding, Castellanos's ancillary argument that his trial attorney rendered ineffective assistance of counsel by failing (before the court granted the Faretta motion, of course) to “properly to present or preserve the question of bifurcation” is meritless.  (See Strickland v. Washington (1984) 466 U.S. 668, 687-692;  People v. Ledesma (1987) 43 Cal.3d 171, 216-217.)

DISPOSITION

The judgment is affirmed.

FOOTNOTES

FN1. Later statutory references are to the Penal Code unless otherwise noted..  FN1. Later statutory references are to the Penal Code unless otherwise noted.

FN2. Faretta v. California (1975) 422 U.S. 806 (Faretta )..  FN2. Faretta v. California (1975) 422 U.S. 806 (Faretta ).