PEOPLE v. WYATT (1994)

Devon Wyatt (Wyatt) and Sheldon Rosell Daniels (Daniels) were convicted by a jury of kidnapping (Pen.Code, § 207, subd. (a)) and second degree robbery (Pen.Code, § 211).   With respect to each offense, the jury found as to Daniels a principal was armed with a firearm (Pen.Code, § 12022, subd. (a)(1)), and Wyatt used a firearm (Pen.Code, § 12022.5, subd. (a)).  Daniels was also convicted of evading an officer with wanton disregard for safety (Veh.Code, § 2800.2), and the jury found each of the defendants had served two prior prison terms (Pen.Code, § 667.5, subd. (b)).  The trial court imposed state prison terms of 14 years upon Wyatt, and 8 years and 8 months upon Daniels.

As to Wyatt, we determine his motion to suppress evidence was properly denied, evidence of an uncharged prior offense was properly admitted, and the trial court did not err in refusing him a continuance.   As to both Wyatt and Daniels, we determine the jury was properly instructed on reasonable doubt, and their sentences were properly enhanced pursuant to Penal Code section 667.5, subdivision (b).   Therefore, the judgments will be affirmed.

FACTUAL BACKGROUND

At close to midnight on December 26, 1991, Keith Jsames (Jsames) was shopping in the Jack Rabbit Liquor Store in Compton when he noticed Wyatt, who wore a long dark coat and had blue rollers in his hair, was watching him.

When Jsames left the store after completing his purchase, he was approached by Daniels, who asked him for a cigarette lighter.   Jsames refused, whereupon Daniels followed him to his 1979 Pontiac Trans Am and asked to use the car lighter.   As Jsames handed Daniels the lighter, Wyatt approached, pointed a gun at Jsames and demanded his money and car keys.   Daniels grabbed Jsames from behind and held him while his money and keys were taken from him.   Wyatt ordered Jsames into the passenger seat, and three or four other men climbed into the back seat of the car, which Daniels drove from the parking lot with Wyatt seated beside Jsames and pointing the gun at him.

Daniels stopped the car in an alley where Jsames was dragged from the vehicle, stripped of all of his clothing except his pants, beaten, kicked and stomped on by his abductors, while Wyatt and Daniels asked, “ ‘Where's the rest of it?   Where's the rest of it?’ ”

Jsames finally got up, pushed his way free, and ran five or six miles to his home where his girlfriend called the police, then handed the telephone to Jsames, who gave the police a description and the license plate number of the Trans Am.

At approximately 1:30 a.m., Compton Police Officer Anthony Christian heard a police radio report of the incident, saw the Trans Am parked in an alley, and hid nearby.   About 20 minutes later he saw the car leave.

Officer Cipriano Nainggolan, who was in a marked police unit, also heard the report of the robbery and kidnapping, including the description and license number of the stolen car.   After Officer Christian reported that the Trans Am was leaving his location, Officer Nainggolan spotted the car and began to follow it.

Wyatt, who was the passenger in the Trans Am, glanced back at Nainggolan's police vehicle, after which the Trans Am sped away.   Activating his red lights and siren, Officer Nainggolan chased the Trans Am until it crashed into a tree.   As the officer alighted from his vehicle, Wyatt and Daniels ran off.

Officer Nainggolan radioed other officers to contain the area and look for the suspects.   He recalled only that he described the suspects as two black males running eastbound.

Officer Russell Townsley and his partner, Officer David Cameron, heard all of the radio broadcasts concerning the robbery.   According to Officer Townsley, the suspects were described as black males, both of whom wore dark clothing, and one of whom wore blue curlers and carried a handgun.

Townsley saw Wyatt walking fast toward him on Schinner Avenue near Long Beach Boulevard, approximately one and one-half blocks from the site of the crash.   The officers stopped Wyatt, who was perspiring and breathing heavily, and whose hair was messed up.   He was wearing tan pants and a yellow and gray long sleeved shirt.   Officer Townsley patted him down for weapons, and placed him in the patrol car.   The officer then drove to the intersection of Schinner and Temple where he got out of his car to look for the other suspect.   Instead, he found a pile of 28 blue curlers, a blue trench coat, and a cap.

Wyatt was taken from the police car and placed in front of its headlights along with Daniels, who had been picked up by Officer Christian, and a third person.   Jsames, who had been transported to the location in another police car, identified Wyatt and Daniels as his assailants, and the curlers as those Wyatt had worn at the time of the offenses.   Jsames also identified Wyatt and Daniels at their preliminary hearing and at trial.   Neither Wyatt nor Daniels possessed any cash or guns when arrested.

Johnnell Vann testified to a similar crime committed by Wyatt between 5:30 and 6 p.m. on September 24, 1991.   As Vann left the Jack Rabbit Liquor Store on that date, Wyatt asked him for a ride.   When Vann refused, Wyatt pointed a gun at him and demanded his money and car keys.   Vann gave Wyatt the items, and was forced into the car.   Wyatt then drove the car to another location where other people were present.   He pointed his index finger at Vann's temple and moved his thumb toward his index finger, simulating a gun being fired, whereupon one of the persons observing him got into another car.   Wyatt and Vann followed in Vann's vehicle, from which Vann escaped when the vehicle stopped at a stop sign after leaving a freeway.

Both defendants offered alibi defenses.   However, Wyatt's defense established that on the evening in question he visited Bobby Dale Brown, who lived across the street from the Jack Rabbit Liquor Store.   He left Brown's home at about 1 a.m. and walked toward the store, which was closed.

CONTENTIONS

Wyatt contends the court erred in:  (1) denying his motion to suppress evidence;  (2) admitting the victim's in-court identification testimony;  (3) admitting evidence of an uncharged prior offense;  (4) refusing to grant him a continuance in order to rebut the testimony of Vann, a surprise prosecution witness;  (5) instructing the jury with respect to the allegations pursuant to Penal Code section 667.5, subdivision (b);  and (6) instructing the jury on reasonable doubt.

Daniels and Wyatt contend because the jury never found they served a prior prison term, the enhancements under Penal Code section 667.5, subdivision (b), must be stricken.

In supplemental letter briefs, both defendants contend the jury was improperly instructed on reasonable doubt (CALJIC No. 2.90).¹

DISCUSSION

1.–4.**

5. The defendants' sentences were properly enhanced pursuant to Penal Code section 667.5, subdivision (b).

Both Wyatt and Daniels contend the enhancement periods imposed pursuant to Penal Code section 667.5, subdivision (b), must be stricken from their sentences because the jury failed to make all of the requisite findings.   We do not agree.

Upon a defendant's conviction of a felony for which a prison sentence is imposed, subdivision (b) of section 667.5 provides for imposition of an additional, consecutive one-year term “․ for each prior separate prison term served for any felony;  provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”   Wyatt and Daniels contend the trial court erred in having the jury determine only whether they had suffered the charged prior convictions, and not whether they served terms of imprisonment therefore and remained free of custody or the commission of a new offense for five years following service of their prison terms.

“The statute defines a prior separate prison term as ‘a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after an escape from incarceration.’  (Pen.Code, § 667.5, subd. (g).)  The defendant is ‘deemed to remain in prison custody for an offense until the official discharge from custody or until release on parole whichever first occurs including any time during which the defendant remains subject to reimprisonment for escape from custody or is reimprisoned on revocation of parole.   The additional penalties provided for prior prison terms shall not be imposed unless they are charged and admitted or found true in the action for the new offense.’  (Pen.Code, § 667.5, subd. (d).)”  (People v. Tenner (1993) 6 Cal.4th 559, 562, 24 Cal.Rptr.2d 840, 862 P.2d 840.)

“Imposition of a sentence enhancement under Penal Code section 667.5 requires proof that the defendant:  (1) was previously convicted of a felony;  (2) was imprisoned as a result of that conviction;  (3) completed that term of imprisonment;  and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction.   [Citation.]”  (People v. Tenner, supra, 6 Cal.4th at p. 563, 24 Cal.Rptr.2d 840, 862 P.2d 840.)

“When a defendant who is charged in the accusatory pleading with having suffered a previous conviction pleads either guilty or not guilty of the offense charged against him, he must be asked whether he has suffered such previous conviction․  If he answers that he has not, ․ the question whether or not he has suffered such previous conviction must be tried by the jury which tries the issue upon the plea of not guilty․”  (Pen.Code, § 1025.)

Neither Wyatt nor Daniels waived a jury trial on the bifurcated issues relating to the priors.   Both contend the court deprived them of a jury trial on issues of fact relating to the priors by stating to the jury:  “Ladies and gentlemen, I did read the Information to you which stated about the five years and all, but it is for the court to make that determination.   I did read it to you but the court will make that finding because the court will have to look into the proper dates, and you do not have it.”

After the jury found each of the defendants had been convicted of the prior offenses charged as to him, the matter was continued to the date of the sentencing hearing.

At the sentencing proceeding, after imposing sentence upon Daniels for the present offenses, the court stated:  “Now, for the prior conviction of February 4th, 1987, ․ that is Health and Safety Code 11350, this having been found to be true, the Court now imposes an additional one year ․ pursuant to 667.5(b) of the Penal Code.”   The court then imposed and stayed an additional one year enhancement period for a second conviction of the same offense on the same date.

Arraigning Wyatt for sentencing, the court recited the jury's verdicts with respect to the present offenses, then stated:  “There is also the prior conviction of October 3rd, 1986, ․ assault with a deadly weapon, which is found to be true, and also found true the prior conviction of October 3rd, 1986, ․ a violation of Section 11350 of the Health and Safety Code.”   After imposing sentence for the present offenses, the court stated:  “As to the prior conviction of October 3rd, 1986, ․ assault with a deadly weapon, this having been found to be true, the Court now imposes an additional one year ․ pursuant to 667.5 of the Penal Code.”   The court then imposed and stayed an additional one-year enhancement period based on Wyatt's prior conviction for violating Health and Safety Code section 11350.

“Except as otherwise provided by law, where the trial is by jury:  (a) All questions of fact are to be decided by the jury.”  (Evid.Code, § 312.)

The Attorney General concedes the jury did not make a finding that either Wyatt or Daniels actually served a prior prison term.   The record discloses the jury also failed to find that either defendant was not free from custody or conviction of a new felony for a period of five years following completion of service of his sentence for the prior offense.   However, these matters are conclusively established by the record.

The present offenses occurred on December 26, 1991.   Wyatt's prior conviction, found true by the jury, occurred on October 3, 1986, and Daniels's prior conviction, also found true by the jury, occurred on February 4, 1987.   We have examined the “prison packet,” including the abstract of judgment and a Department of Corrections chronological history, for each defendant.   Each abstract shows the defendant named therein was sentenced to state prison, and each is alone sufficient to establish that the subject defendant in fact completed a prior prison term.

“The admission into evidence of an abstract of judgment and commitment form, considered in light of the official duty presumption (Evid.Code, § 664), supports an inference that the official into whose custody defendant was placed upon imposition of sentence regularly performed his or her duty to convey the defendant to prison (Pen.Code, § 1216).⁴  It is likewise reasonable to infer that prison officials regularly performed their duty to see that defendant's sentence was carried out.   These reasonable inferences, together with evidence indicating that defendant was out of custody when he committed the later offense, support a finding that defendant completed a prior prison term.”  (People v. Tenner, supra, 6 Cal.4th at p. 566, 24 Cal.Rptr.2d 840, 862 P.2d 840.)

Here, in addition to the abstracts of judgment, we have the Department of Corrections chronological histories of the defendants' incarcerations.   The chronological history for Wyatt shows he was received by the Department of Corrections, released on parole on May 2, 1987, parole was revoked on August 13, 1987, he was released again on August 9, 1988, parole was revoked on August 15, 1989, he was released once more on January 18, 1990, parole was again revoked on March 14, 1990, he was released once more on February 21, 1991, and finally discharged on August 13, 1991.   He was last released from custody less than one year prior to commission of the new offenses on December 26, 1991.

Daniels's prior conviction occurred within five years prior to the present offense, and it is simply not logically possible for him to have been free of both prison custody and the commission of an offense resulting in a felony conviction for five years prior to December 26, 1991.   Moreover, his Department of Corrections chronological history shows his last release from prison custody prior to committing the December 26, 1991 offenses occurred on May 24, 1991.

“․ [T]he defendant shall be deemed to remain in prison custody for an offense until the official discharge from custody or until release on parole whichever first occurs including any time during which the defendant remains subject to reimprisonment for escape from custody or is reimprisoned on revocation of parole.”  (Pen.Code, § 667.5, subd. (d).)

On this appeal, the defendants complain only of the jury's failure to determine the foregoing issues.   They do not contend the persons who served the terms imposed upon them following the convictions the jury found they had suffered were not in fact themselves.   They also do not contend the documents provided by the Department of Corrections are in error, or that something unusual occurred which prevented them from serving their prison terms.

Had the issues determined by the court been submitted to the jury, its role would have been limited to finding facts which are undeniably true.   Even assuming error, the court's failure to submit these issues for the jury's determination was harmless.  (Chapman v. California (1967) 386 U.S. 18 [87 S.Ct. 824, 17 L.Ed.2d 705];  People v. Moreno (1991) 228 Cal.App.3d 564, 573, 579, 279 Cal.Rptr. 140.)

6. The jury properly instructed on reasonable doubt (CALJIC No. 2.90). ***

DISPOSITION

The judgments are affirmed.

FOOTNOTES

1.   In the unpublished portion of this opinion, we consider and reject all of these contentions except those relating to the jury's failure to find that Wyatt and Daniels had served prior prison terms.   That issue is considered and discussed in the published portion of this opinion.

FOOTNOTE.   See footnote *, ante.

4.   Evidence Code section 664 provides, in part:  “It is presumed that official duty has been regularly performed.”

FOOTNOTE.   See footnote *, ante.

CROSKEY, Acting Presiding Justice.

KITCHING, J., and PARKIN, Assigned Justice,* concur.