California Court of Appeal Jan 12, 2016 No. E061317Unpublished
Filed 1/12/16 P. v. Smith 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E061317
v. (Super.Ct.No. SWF1303357)
CLIFTON LEROY SMITH, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Angel M. Bermudez,
Judge. Affirmed as modified.
Carl J. Fabian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney
General, and Eric A. Swenson and Daniel J. Hilton, Deputy Attorneys General, for
Plaintiff and Respondent.
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Defendant Clifton Leroy Smith asked a stranger if he could have his bike. When
the victim refused, defendant poked the victim in the hand with a knife, saying, “[L]et
go.” The victim continued to refuse, and defendant “backed off.”
Less than a week later, defendant confronted the same victim, pulled out a gun,
and demanded the victim’s wallet. Once again, the victim resisted, but defendant rifled
Defendant also tries to reframe the nature of the error by arguing that the trial court
erred by allowing defense counsel to waive lesser included offense instructions.2
However, this claim, too, is barred by invited error.
Finally, defendant’s fallback position is that, by inviting error, defense counsel
rendered constitutionally ineffective assistance.
“To establish ineffective assistance of counsel, ‘“‘a defendant must first show
counsel’s performance was “deficient” because his “representation fell below an
objective standard of reasonableness . . . under prevailing professional norms.”’”’
[Citation.] ‘“[T]here is a ‘strong presumption that counsel’s conduct falls within the wide
range of reasonable professional assistance.’”’ [Citation.] ‘In the usual case, where
counsel’s trial tactics or strategic reasons for challenged decisions do not appear on the
record, we will not find ineffective assistance of counsel on appeal unless there could be
1 At oral argument, defendant’s counsel pointed out that Golde has been cited by the California Supreme Court (People v. Livingston (2012) 53 Cal.4th 1145, 1151) as well as by the Judicial Council’s Advisory Committee on Criminal Jury Instructions (e.g., CALCRIM No. 225 (2015) Authority, p. 55). Rather conspicuously, however, it has never been cited with regard to any issue of invited error. 2 Alternatively, defendant may be arguing that the trial court erred by allowing defendant himself — as opposed to his counsel — to waive lesser included offense instructions. His opening brief is not clear on this point. If this is his argument, however, we fail to see how he was prejudiced, as his defense counsel not only recommended but also joined in the waiver.
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no conceivable reason for counsel’s acts or omissions.’ [Citation.]” (People v. Nguyen
(2015) 61 Cal.4th 1015, 1051.)
The classic reason — indeed, the only logical reason — for objecting to
instructions on a lesser included offense is that, if the jury is not convinced that the
prosecution has proven every element of the charged offense, the defendant will be
acquitted, not merely convicted of the lesser. It is safe to infer that this was defense
counsel’s reasoning here.
In addition, defense counsel chose to present a single defense — mistaken identity.
This offered the prospect of a complete acquittal. He could reasonably be concerned that,
if he argued in the alternative that defendant was guilty, though guilty only of lesser
included offenses, that would detract from his central theme.
Defendant argues that it was not reasonable to increase the risk of a three strikes
sentence when the lesser included offenses — assault, battery, and theft — were only
misdemeanors. Nevertheless, if defendant really, really did not want to be in custody at
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all and was willing to do anything he possibly could to try to avoid it,3 that could be a
rational gamble.4
We therefore conclude that defendant’s contention is barred by the doctrine of
invited error. We further conclude that defendant has not shown that, by inviting the
“We . . . appl[y] two tests in determining whether an uncharged offense is
necessarily included within a charged offense: the ‘elements’ test and the ‘accusatory
3 Defendant asserts that a conviction on the lesser included offenses “would have resulted in credit . . . for time served . . . .” That was not at all clear. Defendant had pleaded guilty to possession of methamphetamine, which at the time was a wobbler. (Health & Saf. Code, former § 11377, subds. (a)-(b), Stats. 2011, ch. 15, § 171; see also Health & Saf. Code, § 11055, subd. (d)(2).) Given defendant’s extensive criminal record, defense counsel could reasonably conclude that, if defendant’s only other convictions were misdemeanors, the trial court was unlikely to reduce this count to a misdemeanor. 4 At sentencing, it was revealed that defendant had a life-threatening illness such that, even if he were sentenced to a determinate term of years, he “likely [would] die in prison.” That could certainly be an incentive to risk an extremely lengthy term (that he would die before serving) in the hope of avoiding custody entirely.
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pleading’ test. [Citation.] The elements test is satisfied if the statutory elements of the
greater offense include all of the statutory elements of the lesser offense, such that all
legal elements of the lesser offense are also elements of the greater. [Citation.] . . .
Under the accusatory pleading test, a lesser offense is included within the greater charged
offense if the facts actually alleged in the accusatory pleading include all of the elements
of the lesser offense. [Citations.]” (People v. Bailey (2012) 54 Cal.4th 740, 748.)
“On appeal, we independently review whether a trial court erroneously failed to
instruct on a lesser included offense. [Citation.]” (People v. Trujeque (2015) 61 Cal.4th
227, 271.)
i. Count 1: Robbery.
Defendant contends that the trial court was required to instruct on assault, battery,
and theft as lesser offenses to the robbery charged in count 1.
Theft is a lesser included offense of robbery. (People v. Castaneda (2011) 51
Cal.4th 1292, 1331.) Assault and battery are not lesser included offense of robbery under
the elements test. (People v. Parson (2008) 44 Cal.4th 332, 349 [assault].) Defendant
argues, however, that because the information alleged that the robbery was committed by
“force and fear” (italics added), assault and battery were lesser included offense of
robbery under the accusatory pleading test.
We may assume, without deciding, that defendant is correct on this point. (But see
People v. Wright (1996) 52 Cal.App.4th 203, 210-211.) Even if so, the trial court was not
required to instruct on either assault or battery unless there was substantial evidence that
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defendant committed an assault or a battery but not a robbery. Likewise, it was not
required to instruct on theft unless there was substantial evidence that defendant
committed a theft but not a robbery.
Defendant’s act of shoving Miller constituted both an assault and a battery.
Defendant’s act of pulling a gun on Miller and threatening to shoot him could also
constitute an assault.5 (People v. Miceli (2002) 104 Cal.App.4th 256, 269.) Finally,
defendant’s act of taking Miller’s wallet and cash constituted theft. There was no
substantial evidence, however, that the assault was not part of the theft, or vice versa.
Defendant argues that the jury could have found that he assaulted Miller to
retaliate against him or to prevent him from testifying and only thereafter formed the
intent to steal. We cannot agree. To infer an intent to retaliate from the mere fact that
defendant had committed a previous crime against Miller would be purely speculative.
(See People v. Castaneda, supra, 51 Cal.4th at p. 1332 [“the fact that defendant had other
motives for killing the victim does not constitute evidence that he formed the intent to
steal only after he ceased applying force against her.”].) The shove merely prevented
Miller from leaving the room and forced him back inside. As soon as defendant and
Miller could not be seen from outside, defendant immediately drew his gun and
5 This would not constitute an assault if defendant was using a toy gun. (People v. Wolcott (1983) 34 Cal.3d 92, 100.) However, in light of Miller’s inability to positively identify the toy gun as the gun used in the robbery, the jury could reasonably find that defendant was using a real gun.
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demanded Miller’s wallet. There is no evidence that defendant’s intent changed at any
point.
Defendant relies on People v. Ledesma (2006) 39 Cal.4th 641. There, the Supreme
Court held that the trial court erred by failing to instruct on theft as a lesser included
offense of robbery. (Id. at p. 715.) It explained that there was substantial evidence that
the defendant killed the victim to prevent him from testifying and formed the intent to
steal only after the victim was dead. (Ibid.) The court noted that “[t]he prosecution’s
witnesses testified that defendant had stated before the killing that he wanted to kill the
victim out of revenge and to prevent his testimony . . . .” (Ibid.) The court also cited
(ibid.) the defendant’s own statements that “he had killed a person who had identified him
in a robbery” and that “if he eliminated the witness, there would be no one to testify
against him.” (Id. at p. 657.) There was no similar evidence of intent to retaliate here.
Finally, in his reply brief, defendant argues that the trial court found that assault
was a viable lesser included offense. That is not how we interpret its remarks. While it
did say that assault was “an available lesser,” it added that “the only way that one could
get to that would be if you . . . say there was assaultive conduct without a taking before
it.” In other words, it concluded, just as we do, that the assault and the taking were
inseparable. It allowed defense counsel to waive any lesser included offense instructions,
not because it believed they were required, but because it wanted to foreclose any
possible dispute. We note, however, that even if the trial court had found sufficient
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evidence of a lesser included offense, that finding would be irrelevant now, because we
review the issue independently.
We therefore conclude that the trial court did not err by failing to instruct on any
lesser included offenses with respect to count 1.
ii. Count 2: Attempted Robbery.
Defendant also contends that the trial court was required to instruct on assault,
battery, and attempted theft as lesser offenses to the attempted robbery charged in
count 2.
Just as theft is a lesser included offense of robbery, attempted theft is a lesser
included offense of attempted robbery. (People v. Reeves (2001) 91 Cal.App.4th 14, 53.)
Completed assault and completed battery are not lesser included offenses of
attempted robbery. (People v. Medina (2007) 41 Cal.4th 685, 694-695.) Nor is there any
wording in the information that would make them lesser included offenses in this case
under the accusatory pleading test. However, just as we assumed, in part II.B.1, ante, that
assault and battery are lesser included offenses of robbery, we may assume that attempted
assault and attempted battery are lesser included offenses of attempted robbery. The jury
could convict defendant of attempted assault and attempted battery even though the
evidence showed a completed assault and battery. (Pen. Code, § 663; People v. Mejia
(2012) 211 Cal.App.4th 586, 605.)
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Once again, however, the trial court was not required to instruct on any of these
crimes unless there was substantial evidence of an attempted assault, battery, or theft that
was not part of an attempted robbery. There was no such evidence here.
Defendant argues that there was evidence that he did not intend to commit a theft
by means of force or fear, and thus he did not have the specific intent to commit a
robbery. He points to “the extremely brief duration of the encounter” and to the fact that
he stopped as soon as Patty told him to. Nevertheless, the evidence showed that he poked
Miller’s hand at the same time as he said, “[L]et go.” Thus, he used force while
demanding the property. He had no other apparent reason to poke Miller’s hand. The
fact that he desisted quickly and readily cannot obscure the fact that the evidence showed
an attempted robbery at that point.
Defendant also argues that there was evidence that he merely wanted to “borrow”
or to “use” Miller’s bike — i.e., that he lacked the intent to permanently deprive. (Italics
omitted.) When he first walked up to Miller, he asked if he could “have” Miller’s bike.
Miller testified that he refused to let defendant “use” the bike. But then defendant started
poking Miller in the hand with a knife. They were strangers to each other. Defendant
had no apparent way of returning the bike to Miller unless they worked out some
consensual arrangement. By poking Miller in the hand with his knife, defendant put paid
to any such possibility.
Finally, defendant argues that the vagueness of Miller’s testimony about Patty and
the prosecution’s inability to produce her gave the jury reason to doubt Miller’s testimony
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about the bicycle incident. The jury could have concluded that Miller was lying or
exaggerating. However, it did not have any basis to conclude that he was lying about the
use of force but not about the attempted taking, or vice versa. Thus, Patty’s absence was
not a basis for lesser included offense instructions.
We therefore conclude that the trial court also did not err by failing to instruct on
any lesser included offenses with respect to count 2.
III
PRIOR PRISON TERM ENHANCEMENTS
Defendant contends that five of the seven prior prison term enhancements must be
stricken.
A. Additional Factual and Procedural Background.
Attached as Attachment A is a chart summarizing the evidence that was admitted
at the trial on the priors and summarizing the trial court’s use of the priors in sentencing.
B. Prior Prison Term Enhancements and Prior Serious Felony Enhancements
Based on the Same Conviction.
Under People v. Jones (1993) 5 Cal.4th 1142, a single prior conviction can be the
basis of a prior serious felony conviction enhancement or a prior prison term
enhancement, but not both.
The People concede that the trial court erred by imposing both prior serious felony
conviction enhancements and prior prison term enhancements based on prior 2 and prior
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3. Accordingly, we will strike these prior prison term enhancements. (People v. Jones,
supra, 5 Cal.4th at p. 1157.)
C. Stay of a Prior Prison Term Enhancement.
The trial court stayed the prior prison term enhancement based on prior 4.
However, prior 4 could not be used as the basis for a prior prison term enhancement,
because prior 3 and prior 4 did not give rise to separate prison terms. (People v. Riel
(2000) 22 Cal.4th 1153, 1203.) Thus, as the People concede, the enhancement should be
stricken, not stayed.
D. The Effect of Proposition 47.
Defendant contends that, under Proposition 47, prior 1 (possession of cocaine) and
prior 5 (receiving stolen property) are no longer felonies and therefore can no longer be
the basis of prior prison term enhancements.
Defendant filed his notice of appeal on June 10, 2014. Proposition 47 went into
effect on November 5, 2014. (People v. Diaz (2015) 238 Cal.App.4th 1323, 1328.)
Defendant has not filed a petition for resentencing under Proposition 47 (see Pen. Code,
§ 1170.18), nor has he raised his present contention in the trial court in any other way.
In sum, “[n]o ruling was made below. Accordingly, no review can be conducted
here. ‘[T]he absence of an adverse ruling precludes any appellate challenge.’ [Citation.]”
(People v. Rowland (1992) 4 Cal.4th 238, 259.)
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IV
CONSECUTIVE OR CONCURRENT TERMS ON COUNTS 3 AND 4
Defendant contends that the trial court failed to state whether the terms on count 3
(possession of methamphetamine) and count 4 (possession of paraphernalia) were
concurrent or consecutive, and hence they must be deemed concurrent.
The trial court did order count 4 “served concurrently with [c]ount 3.” It did not
expressly state whether counts 3 and 4 were to be served concurrently or consecutively
with respect to counts 1 and 2. However, it stated that that the total determinate term was
16 years, which necessarily meant that it intended both counts to be concurrent. The
People concede that counts 3 and 4 were run concurrently. There is no need to modify the
judgment in this respect.
V
DISPOSITION
The judgment is modified as follows. The true findings on the second, third, and
fourth prior prison term enhancements are stricken. The one-year terms imposed on the
second and third prior prison term enhancements and the stayed one-year term imposed
on the fourth prior prison term enhancement are also stricken. This means that the
aggregate sentence is reduced to 64 years to life. The judgment as thus modified is
affirmed.
The clerk of the superior court is directed to prepare an amended sentencing
minute order and an amended abstract of judgment reflecting these modifications and to
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forward a certified copy of the amended abstract to the Department of Corrections and
NOT TO BE PUBLISHED IN OFFICIAL REPORTS RAMIREZ P. J.
We concur:
KING J.
MILLER J.
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Prior Prior prison serious Prior Case No. Convicted Sentenced Crime Term term felony Strike 1 A471709 Jul. 1, 1988 Apr. 16, 1990 Possession of cocaine 16 mos. X 2 YA003201 Apr. 27, 1990 May 8, 1990 Robbery 2 yrs. X X X 3 YA009721 Feb. 24, 1992 Mar. 30, 1992 Robbery 7 yrs. X X X 4 " " " Residential burglary " Stayed X 5 YA026672 Apr. 2, 1996 Apr. 16, 1996 Receiving stolen property 8 yrs. X 6 TA068052-01 Apr. 7, 2003 Apr. 7, 2003 Unlawful taking or 4 yrs., 8 X driving mos. 7 TA097409-01 May 20, 2008 May 20, 2008 Possession of cocaine 4 yrs. X base for sale
ATTACHMENT A
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant's challenge to the trial court's failure to instruct on lesser included offenses was barred by the doctrine of invited error, and it ordered the striking of three prior prison term enhancements due to legal errors.
Issues
Did the trial court err by failing to instruct on lesser included offenses?
Did the trial court err in its imposition of prior prison term enhancements?
Did the trial court fail to specify whether terms on counts 3 and 4 were concurrent or consecutive?
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“The doctrine of invited error bars the defendant from challenging on appeal the trial court’s failure to give the instruction.”