PEOPLE v. RINGELBERG (1990)

Todd Michael Ringelberg appeals from judgment of the superior court granting him probation for three years after a jury convicted him of assault with a deadly weapon and found that he had personally used a deadly and dangerous weapon.   He contends that the court erred and that remand is necessary because the court failed to make factual findings justifying the imposition of the upper or lower term of imprisonment if probation is later revoked (Cal.Rules of Court, rule 433(b)).¹

He also claims that the court should not have allowed the jury to determine whether the enhancement allegations of personal use within the meaning of Penal Code sections 667 and 1192.7 were true, and requests that the jury's finding be stricken.²  We affirm, but remand for further proceedings as hereinafter set forth.

FACTS

On December 27, 1987, Joseph Sandoval and friends attended an open party with approximately 200 paying guests at which beer flowed, and hard liquor and marijuana was passed around.   The party eventually became rowdy, and after being punched to the floor by someone he did not see, Sandoval was pulled from the house by his friends.   They left, but returned shortly thereafter to retrieve a forgotten purse.   While waiting for the owner of the purse, another fight erupted, and Sandoval was severely injured.

He was unable to identify his attackers, but prosecution witnesses identified appellant as one of the persons who hit him with a stick.

Defense witnesses and appellant testified that appellant had actually tried to rescue Sandoval, and that he was seen holding the stick after he had taken it away from the attacker.

Appellant was charged with assault with a deadly weapon and by means of force likely to produce great bodily injury (§ 245, subd. (a)(1)).   The district attorney further alleged that he personally used a deadly and dangerous weapon (§§ 667, 1192.7), and that he intentionally inflicted great bodily injury on Sandoval (§ 12022.7).   The jury convicted him of assault and found the personal use allegation true, but found not true that he had intentionally inflicted great bodily injury.   This appeal ensued.

DISCUSSION

Personal Use

Appellant contends that the court erred in allowing the jury to determine the truth of the allegation that he personally used a deadly or dangerous weapon pursuant to the habitual offender provisions of sections 667 and 1192.7.³  He claims that since there was no allegation that he had suffered a prior serious felony conviction, the jury's finding of fact from which the court drew the conclusion of law that this offense was a “serious felony” operates solely on a prospective basis, and violates this court's holding in People v. Ybarra (1988) 206 Cal.App.3d 546, 253 Cal.Rptr. 644.

Respondent agrees that Ybarra applies in the instant case, and that “[a] decision as to whether or not the present offense qualified as a serious felony would at most constitute an advisory opinion relating to the hypothetical use of the current felony conviction to enhance punishment for a future offense.   Such a ruling would violate the well-settled rule that courts should ‘avoid advisory opinions on abstract propositions of law.  [Citations.]’  [Citation.]”  (People v. Ybarra, supra, 206 Cal.App.3d at p. 549, 253 Cal.Rptr. 644.)  “[D]etermination of whether the underlying offense and the defendant's conduct qualify as a serious felony within the meaning of [Penal Code section 1192.7,] subdivision (c)(8) is a matter which should be left to a future case in which the issue is fully justiciable.”  (Id. at p. 550, 253 Cal.Rptr. 644.)

However, although amenable to this court's striking the legal conclusion, respondent wants the jury's factual finding, that appellant personally used a dangerous or deadly weapon, to remain in the record.   Respondent cites People v. Brown (1981) 119 Cal.App.3d 116, 131, 173 Cal.Rptr. 877, for the proposition that it is proper to include on the judgment enhancements for which sentence cannot be imposed to preserve the record and inform the community release board.   In Brown, the jury found that a codefendant, McGinnis, was armed with and personally used a firearm.  (§§ 12022, subd. (a), 12022.5.)   Since an additional term could not be imposed in addition to his life sentence, McGinnis moved to strike the findings.   The trial court refused, and the appellate court affirmed without comment.

Respondent also relies on People v. Hill (1967) 67 Cal.2d 105, 121–122, 60 Cal.Rptr. 234, 429 P.2d 586, for the proposition that it is not improper for a factual allegation to be determined for the purpose of preserving the record, even if the legal finding would be premature.

In Hill, the court, in ruling on a challenge to the sufficiency of the evidence of defendant's prior convictions, stated:  “Defendant cannot presently be prejudiced by that portion of the judgment stating he served prison terms for each of the priors.   The finding of prior convictions will affect his parole status and minimum sentence whether or not he served time in prison for them.  (Pen.Code, § 3024, subd. (c)[, repealed by Stats.1976, c. 1139, p. 5151, § 279, operative July 1, 1977].)⁴ Whether a defendant has served time in prison for his prior convictions is relevant only in adjudging him an habitual criminal.  (Pen.Code, § 644 [now § 667.5].)  Defendant was not adjudged an habitual criminal in the instant case and could not have been, since the burglary committed by him was found to be burglary in the second degree, which is not one of the crimes enumerated in section 644 of the Penal Code.   Nevertheless, since it is possible that the judgment here might at some future date be used against defendant in an habitual criminality proceeding to prove that he served time in prison for a prior conviction, the claim of insufficiency of evidence to support the finding that he served time in prison can be raised on this appeal.”  (People v. Hill, supra, 67 Cal.2d at pp. 121–122, 60 Cal.Rptr. 234, 429 P.2d 586, fn. omitted.)

In a footnote, the court added:  “Since the judgment does not state that the prison terms for the two felony convictions were separately served, and because it appears the two convictions were obtained at a single trial, the judgment here could be used in the future, if at all, only to prove one prior conviction for which a prison term was served.  [Citation.]”  (People v. Hill, supra, 67 Cal.2d at pp. 121–122, fn. 10, 60 Cal.Rptr. 234, 429 P.2d 586, emphasis added.)

In both cases on which respondent relies, it appears the defendants were properly charged with the enhancements.   Even in Hill, although the defendant was convicted of second degree burglary, it appears that the degree of the crime was originally in issue.   If the jury had found that Hill was guilty of first degree burglary, the finding that he had served one prior prison term would have had legal effect.

Moreover, although respondent relies on it as such, the Supreme Court did not make an unequivocal statement that the judgment could be used to prove the prior conviction in the future.   Only the issue of the sufficiency of the evidence of the prior conviction presented at Hill's trial was before the court.

In the instant case, as in Ybarra, supra, 206 Cal.App.3d at page 549, 253 Cal.Rptr. 644, “[t]he complaint before the court did not allege defendant had suffered a prior serious felony conviction.”   Nor had the prosecution sought an additional penalty under section 12022, subdivision (b), for example.   Had it done so, the jury would properly have been asked to determine whether appellant had personally used a dangerous or deadly weapon.

The jury was instructed:  “If you find such defendant guilty of the crime thus charged, ․ you must determine whether or not such defendant personally used a deadly or dangerous weapon in the attempted commission of such crime.  [¶] [ ]  You will include a special finding on that question in your verdict․”

Our Supreme Court has held that juries in criminal cases may not be presented with special interrogatories absent authorization by statute.  People v. Perry (1972) 7 Cal.3d 756, 783–784, 103 Cal.Rptr. 161, 499 P.2d 129, states:  “In contrast to the rules governing civil actions [Code of Civil Procedure section 625 provides that a trial court may request the jury to render special findings of fact], there is no statute which authorizes the judge to submit special interrogatories to the jury in a criminal case.”  (Fn. omitted.)

The recent case of People v. Farmer (1989) 47 Cal.3d 888, 254 Cal.Rptr. 508, 765 P.2d 940 involved a capital murder case.   The jury was asked to make two special findings if it found defendant guilty:  (1) that defendant personally killed the victim, and (2) that he did so with premeditation and deliberation.   The People submitted these proposed findings with the expressed goal of protecting the verdict on review.

 The court stated:  “A jury in a criminal trial must, except in enumerated circumstances, deliver a general verdict.  (Pen.Code, § 1150.)   But in a true special verdict the jury finds only the facts, leaving judgment to the court.  (Id., § 1152.)”  (People v. Farmer, supra, 47 Cal.3d at p. 920, 254 Cal.Rptr. 508, 765 P.2d 940.)   Here, the jury returned a general verdict of guilt and, on the assumption it followed instructions, decided the two specific questions afterwards.   The findings were thus not a special verdict.  (Ibid.)

The court stated:  “although the questions here are not specifically authorized by statute, Penal Code section 190.4 does mandate that the trier of fact make special findings on the truth of alleged special circumstances.   We held in People v. Burgener [ (1986) 41 Cal.3d 505] at pages 537 to 538 [224 Cal.Rptr. 112, 714 P.2d 1251], that a special finding on whether the crime was committed with express malice aforethought as well as with deliberation and premeditation was a finding authorized by section 190.4.   The special findings here were such.”  (People v. Farmer, supra, 47 Cal.3d at p. 920, 254 Cal.Rptr. 508, 765 P.2d 940.)

 As we have seen, the special finding in the instant case was not in response to an allegation properly charged, was not authorized by statute, and was in response to an issue prematurely raised.   Consequently, both question and answer are not authorized by law.   The unauthorized jury finding may not become the basis for a legal conclusion.   Provisions providing for increased penalties when a defendant is armed with a deadly weapon in the commission of an offense are highly penal in their nature, and should therefore receive a strict construction.  (People v. Lesterjette (1940) 40 Cal.App.2d 327, 330–331, 104 P.2d 844.)   The factual finding must be stricken.  (Id. at p. 331, 104 P.2d 844.)

Failure to Make Factual Findings Regarding Sentence

 Appellant contends, and respondent concedes, that the trial court violated rule 433(b) ⁵ in suspending imposition of sentence and granting probation without making findings as to the circumstances justifying the upper or lower term based upon the trial evidence.   Appellant requests remand.

“ ‘The purpose of rule 433(b) is to assist a later court, upon revocation of probation, to determine what mitigating or aggravating circumstances existed at the time probation was originally granted.   This is because rule 435(b)(1) provides that in imposing judgment after revocation of probation the court must “consider[ ] any findings previously made” and determine the sentence based on circumstances existing at the time probation was granted and not upon subsequent events.’  [Citation.]”  (People v. Gunn (1983) 143 Cal.App.3d 887, 889, 192 Cal.Rptr. 218.)

 Respondent urges us to follow People v. McKinzie (1982) 134 Cal.App.3d 1016, 184 Cal.Rptr. 884, where the trial court granted McKinzie probation without making rule 433(b) findings after convicting him on the preliminary hearing transcript.   The appellate court stated that in the interest of judicial economy it would not remand the matter, since if probation was later revoked the revoking court could just as efficiently make the findings by reading the 28–page preliminary hearing transcript and the original probation reports.  (Id. at p. 1020, 184 Cal.Rptr. 884.)

In contrast, the Gunn court found remand to be necessary because the defendant was convicted after a 10–day jury trial, during which nine witnesses were called and four exhibits were received in evidence.  (People v. Gunn, supra, 143 Cal.App.3d at p. 889, 192 Cal.Rptr. 218.)

That reasoning applies here.   Appellant was convicted after a seven-day trial, during which nine witnesses and appellant testified, and nineteen exhibits were received in evidence.  “Where trial is conducted, the trial court is obligated to make findings under rule 433(b) if imposition of sentence is suspended during a period of probation.”  (People v. Gunn, supra, 143 Cal.App.3d at p. 889, 192 Cal.Rptr. 218, fn. omitted.)

Rule 433(c) requires the court to:  “(1) Hear evidence in aggravation and mitigation, and determine, pursuant to section 1170(b), whether to impose the upper, middle or lower term;  and set forth on the record the facts and reasons for imposing the upper or lower term․”   However, “[a] term of imprisonment shall not be specified if imposition of sentence is suspended.”  (§ 1170, subd. (b).)

DISPOSITION

The matter is remanded to the trial court with directions to strike the findings that appellant personally used a dangerous weapon and that the offense is a serious felony;  to correct the abstract of judgment;  and to make findings under California Rules of Court, rule 433(b).   In all other respects, the judgment is affirmed.

FOOTNOTES

1.   Further “rule” references are to the California Rules of Court.

2.   Further statutory references are to the Penal Code unless otherwise stated.

3.   Section 667 provides a five-year sentence enhancement for a defendant who, having previously been convicted of a serious felony, suffers another such conviction.   It defines “serious felony” with reference to section 1192.7, subdivision (c).   Subdivision (c)(23) of that section lists as a serious felony “any felony in which the defendant personally used a dangerous or deadly weapon.”

4.   Section 3024, entitled “Minimum Term in Certain Cases,” provided for increased sentences for recidivists and for persons who were armed with a deadly weapon at the time of the commission of the offense or at the arrest.

5.   Rule 433(b) provides:  “If the imposition of sentence is to be suspending during a period of probation after a conviction by trial, the trial judge shall make factual findings as to circumstances which would justify imposition of the upper or lower term if probation is later revoked, based upon evidence admitted at the trial.”

PREMO, Associate Justice.

CAPACCIOLI, Acting P.J., and Elia, J., concur.