The People v. Maldonado CA4/2 (2013) · DecisionDepot
The People v. Maldonado CA4/2
California Court of Appeal Aug 30, 2013 No. E056396Unpublished
Filed 8/30/13 P. v. Maldonado CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E056396
v. (Super.Ct.No. FSB1005193)
HECTOR RAUL MALDONADO, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Richard V. Peel,
Judge. Affirmed with directions.
Christian C. Buckley, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Steve Oetting and Laura A.
Glennon, Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION
Defendant Hector Raul Maldonado appeals from his conviction of corporal injury
to a cohabitant (Pen. Code,1 § 273.5, subd. (a); count 1) and assault likely to produce
great bodily injury (§ 245, subd. (a)(1); counts 3 and 4).
United States v. Goodwin (1982) 457 U.S. 368, 372 (Goodwin); People v. Rivera (1981)
127 Cal.App.3d 136, 141-144.)
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California courts recognized what amounts to a bright line test “in refusing to
apply a presumption of vindictiveness for prosecutorial action before commencement of
trial.” (People v. Bracey (1994) 21 Cal.App.4th 1532, 1544 and cases collected.) While
some cases have referred to the attachment of jeopardy as an important factor in
determining vindictiveness, e.g., People v. Edwards (1991) 54 Cal.3d 787, 828, jeopardy
alone is not sufficient. Rather, a presumption of vindictiveness arises “when the
prosecutor increases the criminal charge against a defendant under circumstances which
. . . are deemed to present a „reasonable likelihood of vindictiveness.‟ The presumption is
not based on the subjective state of mind of the individual prosecutor and does not imply
that he or she individually harbors an improper motive.” (In re Bower (1985) 38 Cal.3d
865, 879.) When a defendant “shows that the prosecution has increased the charges in
apparent response to the defendant‟s exercise of a procedural right, the defendant has
made an initial showing of an appearance of vindictiveness. [Citation.] The defendant
need not demonstrate that the prosecution in fact acted with a retaliatory motive.
[Citation.]” (Twiggs v. Superior Court (1983) 34 Cal.3d 360, 371.)
Defendant‟s counsel argued in the trial court that the late amendment was
“punitive as to the punishment for [defendant] exercising his right to trial;” however, that
bare assertion of a retaliatory motive was insufficient to create a presumption of
prejudice. “The charge of vindictive prosecution is not a substitute for evidence.”
(People v. Tirado (1984) 151 Cal.App.3d 341, 350.) As one federal court has explained,
“[T]he appearance of vindictiveness results only where, as a practical matter, there is a
realistic or reasonable likelihood of prosecutorial conduct that would not have occurred
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but for hostility or a punitive animus towards the defendant because he has exercised his
specific legal rights.” (U.S. v. Gallegos-Curiel (9th Cir. 1982) 681 F.2d 1164, 1169.) In
People v. Farrow (1982) 133 Cal.App.3d 147, 152, the court stated: “From the very
commencement of proceedings, a criminal defendant has innumerable „rights‟ which are
exercised prior to and during the trial. Whenever the prosecution attempted to amend the
information, the defendant could assert that the amendment was in retaliation for some
right that the defendant had theretofore exercised, or attempted to exercise. If the
assertion of such a claim required the prosecution to come forward with explanations of
the motivations for exercise of its discretion to amend the charges, the defendant could
delay the proceedings and deflect them from the true issue, the defendant‟s guilt or
innocence.” In short, the mere fact that the amendment took place at the close of trial
does not, without more, give rise to a presumption of vindictiveness.
The cases on which defendant primarily relies are inapposite because all involved
different facts. (People v. Twiggs, supra, 34 Cal.3d at pp. 368-369 [holding that a
presumption of prosecutorial vindictiveness arose when the information was amended to
add five additional prior felony convictions after a mistrial was declared; the defendant
refused a plea bargain and invoked his right to a retrial; and the prior convictions were
known before the first trial]; In re Bower, supra, 38 Cal.3d at p. 873 [holding that “the
due process prohibition against prosecutorial vindictiveness bars the People from
increasing the severity of the potential charges against [a defendant] after he moved for a
mistrial”].) In U.S. v. Goodwin, supra, 457 U.S. 368, the court held that no presumption
of prosecutorial vindictiveness arose when the defendant requested a jury trial on pending
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misdemeanor charges, after which request the prosecutor sought and obtained an
indictment of felony charges stemming from the same incident. (Id. at pp. 369-370.)
Although the court based its determination of the case on the fact that the amendment
occurred pretrial, the court did not create a rule that a later amendment necessarily creates
a presumption of vindictiveness.
We conclude the trial court did not abuse its discretion in permitting the
amendment to the information to add count 4.
B. Correction to Abstract of Judgment
Defendant contends the abstract of judgment and minute order for the sentencing
hearing should be amended to reflect that his sentence on count 3 was stayed under
section 654. The People properly concede error.
At the sentencing hearing, the trial court imposed a concurrent one-year term for
count 3 and then stated that term would be stayed under section 654. However, neither
the minute order of the sentencing hearing nor the abstract of judgment reflects that
defendant‟s sentence for count 3 was stayed under section 654. “The oral pronouncement
of judgment controls over any discrepancy with the minutes or the abstract of judgment.
[Citations.]” (People v. Sharret (2011) 191 Cal.App.4th 859, 864.) We will order the
minute order and abstract of judgment to be amended accordingly.
IV. DISPOSITION
The trial court is directed to prepare an amended minute order and abstract of
judgment reflecting that defendant‟s sentence for count 3 was stayed under section 654
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and to forward the amended abstract of judgment to the Department of Corrections and
Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST Acting P. J. We concur:
RICHLI J.
MILLER J.
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AI Brief
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Holding. The court held that the trial court did not abuse its discretion by allowing the prosecution to amend the information after the close of evidence, as the defendant failed to demonstrate prejudice or a presumption of vindictive prosecution. The court also ordered the correction of the abstract of judgment to reflect that the sentence for count 3 was stayed pursuant to Penal Code section 654.
Issues
Did the trial court abuse its discretion by allowing the information to be amended after the close of evidence?
Did the late amendment of the information violate the defendant's due process rights or constitute vindictive prosecution?
Should the abstract of judgment be amended to reflect that the sentence on count 3 was stayed under Penal Code section 654?
Disposition. Affirmed with directions.
Quotations verified verbatim against the opinion
“The court may allow the information to be amended at any time up to and including the close of trial as long as the defendant is not prejudiced by the amendment.”
“The mere fact that the amendment took place at the close of trial does not, without more, give rise to a presumption of vindictiveness.”
“The oral pronouncement of judgment controls over any discrepancy with the minutes or the abstract of judgment.”