Filed 11/10/15 P. v. Parson CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D068476
Plaintiff and Respondent,
v. (Super. Ct. No. FVA1101104)
TERRANCE LAMONT PARSON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino County,
Steven A. Mapes, Judge. Affirmed in part; reversed in part and remanded with
directions.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General,
Charles C. Ragland and Brendon W. Marshall, Deputy Attorneys General, for Plaintiff
and Respondent. A jury convicted Terrance Lamont Parson of assault with a deadly weapon. (Pen.
Code, § 245, subd. (a)(1).)1 The jury also found that Parson had two prior strike
convictions and had served one prior prison term. The trial court sentenced Parson under
the "Three Strikes" law to 25 years to life in state prison. (§§ 667, 1170.12, 1170.126.)
Parson contends that the trial court erred in denying his motions for mistrial and
his motion for new trial on grounds of prosecutorial misconduct. He argues that the
prosecutor committed multiple acts of misconduct that violated his right to a fair trial
under the Sixth and Fourteenth Amendments to the United States Constitution. He also
claims that the evidence was insufficient to support a finding that that he was properly
advised of, and knowingly waived, his trial rights under Boykin v. Alabama (1969) 395
U.S. 238 (Boykin) and In re Tahl (1969) 1 Cal.3d 122 (Tahl) when he pled guilty to
attempted murder and robbery in 1992 and, therefore, the trial court erred in using his
1992 convictions to increase his sentence under the Three Strikes law. In addition,
Parson asserts that the trial court abused its discretion in denying his motion under People
v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike one or more of his
prior strike convictions. Finally, Parson claims that the trial court erred by denying
section 4019 conduct credits and by imposing a court security fee2 under section 1465.8
in the amount of $60.
1 Unless specified, further statutory references are to the Penal Code.
2 As we shall explain, shortly before the trial in this case, the Legislature amended section 1465.8, changing the word "fee" to "assessment." (Stats. 2011, ch. 40, § 6, eff. June 30, 2011.) We use the phrase "court security fee" when reciting the trial record and 2 The People argue that the prosecutor did not commit misconduct and that the trial
court did not abuse its discretion in denying Parson's motions under Boykin-Tahl and
Romero. The People agree that the trial court erred in denying section 4019 conduct
credits to Parson. The People state that the amount of the section 1465.8 assessment
should have been $30, and contend for the first time on appeal that the trial court erred in
failing to impose the $30 assessment required by Government Code section 70373.
We agree with the parties with respect to the denial of section 4019 conduct
credits and reverse the trial court's ruling on that issue. We conclude that the minute
order and the abstract of judgment show that the court imposed the assessments required
by section 1465.8 and by Government Code section 70373 in the amount of $60.
However, the section 1465.8 assessment should have been in the amount of $40, for a
total assessment of $70. We order the trial court to correct the abstract of judgment with
respect to the conduct credit and assessments but otherwise find no error and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On July 17, 2011, Parson, who was in his house, and his wife, Tracey Jones-
Parson, who was standing outside on the sidewalk, had a lengthy verbal altercation.
Neighbors telephoned the police. Police officers left after Parson and his wife stopped
arguing. Jones-Parson also left but returned a short time later with her 19-year-old son,
Karl Palmer. Palmer began to scream and swear at Parson, challenging him to "come out
defendant's argument, but otherwise refer to the "court security fee" as the section 1465.8 assessment. 3 of the house." Parson repeatedly said, "You don't want that, if, if I come down there
there's gonna be problems, you don't want me to come down."
Palmer and Parson continued to swear at each other until Parson came out of his
house carrying a kitchen knife with a four-inch wooden handle and four-inch blade.
Parson shouted "you asked for it" and said that he was going to kill Palmer. Palmer ran
into a neighbor's house and shut the door. Neighbors contacted the police.
When police officers Shannon Vanderkallen and David Campa arrived, Parson
dropped the knife and walked toward them. He refused to comply with their commands
to get on the ground. The officers wrestled Parson to the ground and arrested him for
assault with a deadly weapon.
At trial, a neighbor, Brandy Jackson Villarreal, testified that Parson was holding
the knife at his side when he approached Palmer. Villarreal said that she stood between
Parson and Palmer, and pushed Palmer toward her house. Villarreal's cousin, Aubrey
Beck, testified that Parson was holding the knife at his side when he approached Palmer
and came within 20 feet of him. Nancy Marquez, another neighbor, testified that she was
watching the incident from an upstairs window. She telephoned 911 when Palmer came
out of his house with a knife, telling the dispatcher that Palmer was "waving the knife
around right now" and "threatening a teenage kid." Marquez said that Parson came
within 10 feet of Palmer.
Officer Vanderkallen testified that he interviewed the eyewitnesses at the scene.
Beck told him that Parson had been chasing Palmer with a knife, saying that he was
going to kill Palmer. Parson was swinging the knife at Palmer and was able to get within
4 three to five feet of him. Villarreal told Vanderkallen that Parson had come very close to
Palmer and appeared to be trying to stab him.
Three days into deliberations, the jury announced that it was deadlocked. The trial
court gave a clarifying instruction on the elements of assault. After further deliberations,
the jury returned a guilty verdict. In a bifurcated trial, the jury found that Parson had
been convicted of robbery and attempted murder in 1992 and that he had been convicted
of felony child cruelty in 2005.
In posttrial proceedings, the trial court denied Parson's motion to strike his 1992
convictions for robbery and attempted murder, to which he had entered a guilty plea, on
the ground that that he had not been properly advised, and did not waive, his
constitutional rights under Boykin-Tahl at that time. The trial court also denied Parson's
motion to strike one of his prior strike convictions under Romero.
At sentencing, the trial court imposed a sentence of 25 years to life. The court
denied section 4019 conduct credits to Parson and imposed fines and fees, including a
$60 fee that the trial court called a "court security fee," but was termed a "criminal
assessment and court operations assessment" in the minute order and abstract of
judgment.
5 DISCUSSION
I
PROSECUTORIAL MISCONDUCT CLAIMS
A
The Parties' Arguments
Parson contends that the trial court erred in denying his motions for mistrial and
motion for new trial on ground of prosecutorial misconduct. He claims that the
prosecutor committed misconduct by: deliberately eliciting testimony in violation of the
trial court's evidentiary ruling; making a speaking objection in the presence of the jury
implying that the victim, who did not testify, had given a statement that the jury had not
heard that was prejudicial to the defendant; and improperly referring to the protection of
the community and the absent victim in rebuttal argument. Parson asserts that the
repeated instances of misconduct were prejudicial and violated his constitutional right to
a fair trial.
The People respond that the trial court acted within its discretion in denying the
motions for mistrial and motion for new trial. The People argue that the prosecutor
appropriately instructed witnesses about the trial court's evidentiary rulings, the speaking
objection did not provide the jury with any information that they did not already know,
and the rebuttal argument did not improperly appeal to the sympathy or passions of the
jury. In addition, the People argue that any error was harmless because the trial court
instructed the jury that statements by the attorneys were not evidence and should not be
6 considered; not to consider responses that the court had stricken from the record; and not
to let sympathy or passion inform its decision.
B
Additional Factual Background
1. Testimony in violation of a court order
Parson filed a pretrial motion to exclude evidence concerning the circumstances of
his arrest. He argued that the police were not percipient witnesses to the alleged assault
and that any testimony about his behavior after the police arrived was more prejudicial
than probative. (Evid. Code, § 352.) He specifically sought to exclude statements in
Vanderkallen's report that Parson had been "very amped up and refused to comply with
[Vanderkallen's] commands" and "refused to sit down and clenched his fist while puffing
his chest out and [starting] to stiffen up." Vanderkallen also reported that Parson was
muscular and appeared to be very irate, and that he determined that it was necessary to
use physical force to arrest Parson because he believed that Parson was going to attack
and assault Officer Campa.
The prosecutor opposed the motion in limine. She argued that the evidence of
Parson's conduct after police arrived on the scene was relevant to show the defendant's
state of mind, and that Parson's assault on Palmer and Parson's actions toward the police
constituted one continuous act of aggression.
The trial court issued a tentative ruling allowing testimony about Parson's rude and
angry demeanor but excluding testimony of his aggressive behavior toward the officer
and his lack of cooperation with the police.
7 On direct examination, the prosecutor asked Vanderkallen, "Can you describe how
[Parson] appeared?"
Vanderkallen: "He was irate. Kind of breathing heavily, appeared to be
intoxicated."
Prosecutor: "Okay. And when you are -- when you asked him -- when you told
him to sit down and he did not sit down, did he appear otherwise cooperative, or how did
he appear?"
Vanderkallen: "He was not cooperative at all."
Prosecutor: "Okay. How did his body look? What did his body look like? Was
there anything specific about what his body was doing that caused you to say that he was
not cooperative?"
Defense counsel: "Objection, your Honor, 402."
The trial court sustained the objection, explaining to counsel that the court had
ruled that testimony about Parson's rude, angry and intoxicated mannerisms could be
admitted in evidence, but that any testimony about Parson's aggressive behavior with the
police officers was inadmissible. The prosecutor said that she had instructed both police
officers not to testify that they felt personally threatened by, or had physical contact with,
Parson. The trial court said that it would allow the prosecutor to elicit that Parson was
"amped up" but would not allow her to elicit testimony concerning any type of physical
contact with the police.
When trial resumed, the prosecutor asked Vanderkallen to describe Parson's
physical appearance. Vanderkallen replied, "He had his shirt off. He was very amped
8 up, irate. We were giving him commands after we identified ourselves to sit down and
get on the ground."
The prosecutor then asked, "When you use the word 'amped up,' what does that
mean?"
Vanderkallen: "Clenching his fist, his chest puffed out, kind of ready to fight."
The trial court sustained defense counsel's objection and struck the statement from
the record. During later discussions about Vanderkallen's testimony, the trial court said,
"I don't think . . . the officer understood the [c]ourt's order."
On direct examination, Officer Campa testified that Parson smelled of alcohol and
that he appeared to be intoxicated and extremely upset. The prosecutor asked, "[W]as
there anything about his body and the way that he presented himself to you that suggested
to you that maybe he was angry?"
Campa: "Yes, ma'm."
Prosecutor: "What was that?"
Campa: "During our investigation, that's as we're dealing with Mr. Parson, I
noticed . . . he clenched his fist and started puffing his chest and became stiff."
Defense counsel objected. The trial court ordered the response stricken from the
record. Defense counsel moved for a mistrial, stating that the jury now had heard
improper evidence about Parson's conduct twice. The trial court proposed giving the jury
a limiting instruction but defense counsel objected, saying that an instruction would only
call attention to the damaging statement.
9 The trial court commented that Campa's response had clearly violated its order.
The trial court stated that it had drawn a bright line between the officers' assessment of
Parson's demeanor on their arrival at the scene and any physical contact they
subsequently had with him. However, the trial court added that it did not believe that the
prosecutor had intentionally crossed that line. In response to defense counsel's argument,
the trial court acknowledged that the officer had violated an explicit order, but explained
that the court was denying the motion for mistrial for lack of prejudice to the defendant.
The court found that even if the jury were to find that Parson clenched his fists and
puffed up his chest when he encountered the police, the violation of the ruling, in and of
itself, was not prejudicial to the defendant.
2. Speaking objection about victim's statement
During defense counsel's cross-examination of Vanderkallen, counsel verified that
Palmer was 19 years old and then asked, "You know he's six foot one, correct?"
At this point, the prosecutor said, "Object. Foundation and also hearsay unless the
People are allowed to inquire as to the entire statement of Mr. Palmer."3
Defense counsel objected. Outside the presence of the jury, the trial court told the
prosecutor, "[There is] an unspoken rule against speaking objections. . . . [¶] [T]he
speaking objection in this case is one that, basically, now tells the jury that a statement
3 The victim, Karl Palmer, did not testify at trial. In posttrial proceedings, Palmer testified that he had been attending college in another state and had not been aware of any efforts to locate him. The prosecution introduced records of telephone conversations between Parson and his wife in which they had discussed maintaining Palmer's absence. Parson apparently assumed that he would not be bound over for trial in Palmer's absence. 10 was made by the witness who apparently, I'm guessing, is not going to be here. So there
may be some Crawford[4] issues with it. And . . . what you have, basically, done by the
speaking objection is [tell] the jury there's a lot there and I want to get into it, but you
guys don't know about it. I don't think that was your intent. But that's the effect speaking
objections have."
Defense counsel moved for a mistrial. The trial court denied the motion, stating
that although the court was "not happy" with the prosecutor, the speaking objection was
not prejudicial to the defendant in view of the totality of the evidence. The trial court
instructed the jury that objections made by the attorneys were not evidence and not to
consider the attorney's statements during deliberations.
3. Improper statements during rebuttal argument
During closing argument, the prosecutor asked the jury to find the defendant guilty
of assault with a deadly weapon. She said, "We ask that you hold him accountable; that
you protect the victim that wasn't here to talk to you -- "
Defense counsel objected. The trial court sustained the objection and ordered the
remark stricken. The prosecutor continued, " -- that you do the right thing; that you look
after the safety of your community; that you uphold -- "
Defense counsel objected again and asked the remark to be stricken.
Prosecutor: "-- the law."
4 Crawford v. Washington (2004) 541 U.S. 36 [barring admission of out-of-court testimonial statements unless witness is unavailable and defendant had prior opportunity to cross-examine that witness].) 11 The Court: "Sustained."
Prosecutor: "-- that you uphold the law; that you convict the defendant. Thank
you."
After the jury retired to deliberate, the court addressed the prosecutor, stating,
"[W]hen you tell the jury to 'protect the community,' that's improper argument. I mean,
you have to know for future reference, that's not something you can argue. . . . [Y]ou're
asking the jury to do more than what their job is. Their job is to decide what the facts
are."
Defense counsel moved for a mistrial. The trial court denied the motion, stating
that if the defendant was convicted, counsel could bring a motion for a new trial, and the
court would review the transcripts to make sure its ruling was correct. The trial court
said that it had been concerned about several issues during the trial and each time took
immediate steps to correct any possible confusion on the jury's part. The trial court was
satisfied that those steps were sufficient to ensure that the defendant received a fair trial.
After the jury returned its verdict, Parson filed a motion for a new trial, claiming
prosecutorial misconduct for eliciting improper evidence, making a speaking objection,
and making improper statements during argument. The trial court commented that in
some instances, the prosecutor's conduct had been "shock[ing]." With the exception of
Vanderkallen's improper response to her question, which the court believed the
prosecutor had not expected, the prosecutor had been "remiss." However, the court stated
that the appropriate analysis was whether the cumulative effect of the prosecutor's
conduct was prejudicial to the defendant. The trial court had sustained defense counsel's
12 objections and struck the answers and statements from the record. The trial court found
beyond a reasonable doubt that the errors complained of had not contributed to the jury's
verdict, and denied the motion for new trial.
C
Applicable Legal Principles and Standard of Review
" 'A prosecutor is held to a standard higher than that imposed on other attorneys
because of the unique function he or she performs in representing the interests, and in
exercising the sovereign power, of the state. (People v. Kelley (1977) 75 Cal.App.3d 672,
690.) As the United States Supreme Court has explained, the prosecutor represents "a
sovereignty whose obligation to govern impartially is as compelling as its obligation to
govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall
win a case, but that justice shall be done." (Berger v. United States (1935) 295 U.S. 78,
88.)' " (People v. Hill (1998) 17 Cal.4th 800, 820 (Hill).)
A prosecutor acts improperly in " 'eliciting or attempting to elicit inadmissible
evidence' in defiance of a court order." (People v. Wallace (2008) 44 Cal.4th 1032, 1071
(Wallace), quoting People v. Crew (2003) 31 Cal.4th 822, 839.) In addition, it is
improper for the prosecutor to use speaking objections to place information before the
jury that was not admitted in evidence (People v. Pitts (1990) 223 Cal.App.3d 606, 722)
or to appeal to the sympathies or passions of the jury at the guilt phase of a criminal trial,
at which the jury is to make an objective determination of guilt (People v. Mendoza
(1974) 37 Cal.App.3d 717, 727; People v. Sanchez (2014) 228 Cal.App.4th 1517, 1536).
If the prosecutor uses deceptive or reprehensible methods to attempt to persuade either
13 the trial court or the jury, such conduct may be characterized as "prosecutorial
misconduct." (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales); People v. Ayala
(2000) 23 Cal.4th 225, 284.) If the prosecutor does not act with a culpable state of mind,
" '[a] more apt description of the transgression is prosecutorial error.' " (People v.
Centeno (2014) 60 Cal.4th 659, 667, 666.) The unintentional injury to a defendant is
" ' "nonetheless an injury because it was committed inadvertently rather than
intentionally." ' " (Hill, supra, 17 Cal.4th at p. 823.)
"A prosecutor's conduct violates the Fourteenth Amendment to the federal
Constitution when it infects the trial with such unfairness as to make the conviction a
denial of due process." (Morales, supra, 25 Cal.4th at p. 44.) In such a case, reversal of
the judgment is required unless the error is harmless beyond a reasonable doubt.
(Chapman v. California (1967) 386 U.S. 18, 24.) If the prosecutor has committed error
that does not render a trial fundamentally unfair under federal constitutional standards, a
defendant's conviction will not be reversed under state law unless it is reasonably
probable that a result more favorable to the defendant would have been reached in the
absence of that error. (Wallace, supra, 44 Cal.4th at p. 1071; People v. Watson (1956) 46
Cal.2d 818, 836 (Watson); see People v. Castillo (2008) 168 Cal.App.4th 364, 386, fn. 9.)
D
Analysis
The parties devote much of their arguments to the egregiousness, or lack thereof,
of the prosecutor's conduct. Their ultimate focus, however, is on whether Parson was
prejudiced as a result of those errors. Parson makes a cursory argument that his federal
14 constitutional right to a fair trial was violated and that the errors were not harmless
beyond a reasonable doubt. The People, equally briefly, assert that Parson received a fair
trial under federal constitutional standards. The parties more carefully develop their
respective arguments concerning whether it is or is not reasonably probable that a result
more favorable to the defendant would have been reached in the absence of any
misconduct by the prosecutor. Our review of the record does not show that the
prosecutor's errors were so egregious that they deprived Parson of a fundamentally fair
trial under federal constitutional standards. (Hill, supra, 17 Cal.4th at p. 819.) We will
therefore focus our attention on whether Parson has demonstrated that he was prejudiced
under state law standards as a result of the prosecutor's conduct. (Wallace, supra, 44
Cal.4th at p. 1071; Watson, supra, 46 Cal.2d at p. 836.)
Before turning to that issue, we accept the trial court's determination that the
prosecutor did not commit misconduct when she asked Vanderkallen to explain what he
meant when he said that Parson was "amped up," and Vanderkallen responded that
Parson was "clenching his fist, his chest puffed out, ready to fight." The trial court
accepted the prosecutor's explanation that she had instructed the officer to not discuss any
physical contact that Parson had with police officers during their encounter, and observed
her reaction to the officer's response to her question.
When the trial court has made a reasoned evaluation of the prosecutor's reasons for
her conduct, the reviewing court defers to the trial court's determination of a prosecutor's
credibility. (Cf. People v. Mills (2010) 48 Cal.4th 158, 175-178 [reviewing court defers
to trial court's assessment of prosecutor's credibility in Wheeler-Batson claims if it made
15 a sincere and reasoned effort to evaluate the nondiscriminatory claims offered].) The
record also supports the trial court's findings that the prosecutor erred when she allowed
Campa to testify that after he and Vanderkallen contacted Parson, Parson "clenched his
fist and started puffing his chest and became stiff," made a speaking objection that told
the jury that Palmer had given a statement to police officers that was not admitted in
evidence, and asked the jury to "protect the victim that wasn't here to talk to you" and
"do the right thing; that you look after the safety of your community." The trial court did
not find that the prosecutor's conduct was deceptive or reprehensible. Rather, the trial
court's comments, including advising the prosecutor about correct trial practice, indicate
that the court viewed the prosecutor's errors as unintentional.
The record does not support a finding that it is reasonably probable that a result
more favorable to the defendant would have been reached in the absence of prosecutorial
error. (Wallace, supra, 44 Cal.4th at p. 1071; Watson, supra, 46 Cal.2d at p. 836.) The
trial court sustained objections to the "clenching his fist, his chest puffed out, ready to
fight" statements and struck those statements from the record. The trial court instructed
the jury to disregard those questions and the answers that were stricken from the record.
With respect to the speaking objection, the trial court instructed the jury that statements
by the attorneys were not evidence and the jury was not to consider them. The jurors
were also instructed not to let bias, sympathy, prejudice or public opinion influence them,
and to ignore arguments to which the court had sustained objections and had ordered
stricken from the record. "It is axiomatic that '[j]urors are presumed able to understand
16 and correlate instructions and are further presumed to have followed the court's
instructions.' " (People v. Hernandez (2010) 181 Cal.App.4th 1494, 1502.)
Parson argues that because the jury announced that it was deadlocked after
deliberating for three days, the errors were prejudicial. Parson contends that the evidence
was not "lopsided" in the prosecution's favor but, rather, that the case was extremely
close, noting that the testimony of the two witnesses who were the closest to the action
absolved him of culpability.
We are not persuaded by this argument. While it is true that Villarreal and Beck
recanted their initial statements to the police, instead claiming at trial that Parson held the
knife by his side and did not come closer than within 10 or 20 feet from Palmer, the jury
also heard their initial statements to the police. Beck told police that Parson was
swinging the knife at Palmer and was able to get within three to five feet of him.
Villarreal said that Parson had come very close to Palmer and appeared to be trying to
stab him. In addition, the jury heard a contemporaneous 911 call in which another
eyewitness, Nancy Marquez, said that Parson was "waving the knife around right now"
and "threatening a teenage kid." Marquez said that Parson had come within 10 feet of
Palmer, and was chasing him with a knife. The jury could reasonably determine that
Marquez's contemporaneous report corroborated Villarreal's and Beck's initial statements
to police, and conclude beyond a reasonable doubt that Parson was guilty of assault with
a deadly weapon.
The prosecutor's errors did not relate to the relevant issue of whether Parson had
the present ability " 'to commit a violent injury on the person of another.' " (People v.
17 Smith (1997) 57 Cal.App.4th 1470, 1481.) In view of the strength of the evidence against
Parson, it is not reasonably probable that a result more favorable to him would have been
reached in the absence of the misconduct.
II
BOYKIN-TAHL CLAIM
The Parties' Contentions
Parson contends that the trial court erred in finding that the evidence was
sufficient to establish that, at the time he pled guilty to attempted murder and robbery in
1992 (1992 convictions), he was properly advised of, and knowingly waived, his
constitutional rights to a jury trial, to confront the witnesses against him, and to be free
from compelled self-incrimination (trial rights). (Boykin, supra, 395 U.S. 238; Tahl,
supra, 1 Cal.3d 122.) There is no record transcript, or signed advisement and waiver of
rights, from the 1992 hearing at which he pled guilty. Parson argues that the minute
order of that hearing, alone, is not sufficient to establish that the required advisements
and waivers were properly made, or that they were made at all. He further contends that
his prior criminal convictions resulted from plea bargains and therefore, is not relevant to
his knowledge about his trial rights.
In a posttrial hearing on his motion to strike his 1992 convictions, Parson testified
that if he had been advised of his trial rights, he would not have pled guilty to those
18 offenses. Parson admitted that he discussed the plea agreement with his attorney and
knew that he was facing a possible life sentence. The defense introduced documents
from the 1992 case, including a minute order dated August 26, 1992 (the minute order).
The minute order contains preprinted sentences stating that the defendant, personally, and
all counsel waived a trial by jury, the trial court accepted the waiver, and the defendant
was advised of and waived his rights to confront witnesses and to the privilege against
self-incrimination. Boxes next to those sentences are checked with an "x." There is no
record transcript of the proceeding.
The trial court noted that the courts did not use a "Tahl" waiver form in 1992. A
written plea agreement in which Parson initialed or signed a waiver of his enumerated
rights does not exist. The trial court found that the minute order showed that the case was
called for trial. In addition, the court observed that Parson testified that he had
discussions with his attorney and that he was aware that he was facing a possible life
sentence. The court determined that Parson did not overcome the presumption that the
minute order correctly reflected the court proceedings, and concluded that the minute
order was sufficient to show that Parson had been adequately advised of his rights and
had waived them. Based on these findings, the court denied Parson's motion to strike the
1992 convictions.
A trial court may not use a prior conviction to increase a defendant's sentence if
the prior conviction was obtained in violation of the defendant's constitutional rights.
19 (People v. Allen (1999) 21 Cal.4th 424, 429 (Allen), citing Burgett v. Texas (1967) 389
U.S. 109, 114-115.) "[T]o ensure the plea was made intelligently and voluntarily, the
record must show the defendant was made aware of three constitutional rights he was
waiving by pleading guilty: the right to a jury trial, the right to confront the witnesses
against him, and the right to be free from compelled self-incrimination." (Allen, at
p. 434.)
The record must affirmatively disclose that a defendant who pled guilty entered
his plea understandingly and voluntarily. (Allen, supra, 21 Cal.4th at p. 437.) "[E]ach of
the three rights mentioned -- self-incrimination, confrontation, and jury trial -- must be
specifically and expressly enumerated for the benefit of and waived by the accused prior
to acceptance of his guilty plea." (Tahl, supra, 1 Cal.3d at p. 132; Boykin, supra, 395
U.S. at pp. 242, 243 [holding that an intelligent and voluntary waiver would not be
presumed from a silent record].) "The failure to properly advise a defendant of his or her
trial rights is not reversible 'if the record affirmatively shows that [the plea] is voluntary
and intelligent under the totality of the circumstances.' " (People v. Cross (2015) 61
Cal.4th 164, 179, quoting People v. Howard (1992) 1 Cal.4th 1132, 1175 (Howard).) In
applying the totality of the circumstances test, a reviewing court reviews the entire
record, not just the record of the plea colloquy. (Cross, at pp. 179-180.) Previous
experience in the criminal justice system is relevant to the defendant's knowledge and
sophistication regarding his or her legal rights. (Ibid.; Parke v. Raley (1992) 506 U.S. 20,
37.)
20 D
Parson argues that a minute order, alone, is not sufficient to establish that he
received the required advisements and knowingly and voluntarily waived his rights. He
acknowledges that there is a presumption that the clerk properly performed his or her
duty and that the minute order is an accurate representation of the proceedings. (Evid.
Code, § 664; In re Lopez (1970) 2 Cal.3d 141, 146.)
"Obviously, a reporter's transcript of defendant's waiver and plea or a waiver form
signed by defendant would have provided clearer proof of an express waiver. [Citation.]
Such evidence, however, is neither essential nor mandatory." (People v. Anderson (1991)
1 Cal.App.4th 318, 325.) The pertinent inquiry is whether the record affirmatively shows
that the admission is voluntary and intelligent under the totality of the circumstances.
(People v. Mosby (2004) 33 Cal.4th 353, 360.)
The trial court did not err when it presumed that the minute order is an accurate
representation of the proceedings. The minute order shows that Parson, personally, and
his counsel waived a trial by jury, that the trial court accepted the waiver, and that Parson
was advised of his right to confront witnesses and his privilege against self-incrimination,
and waived those rights. The record shows that Parson was in court for a jury trial and
that he pled guilty after his attorney advised him that he was facing a possible life
sentence if he were to go to trial. Given these circumstances, the trial court could
reasonably infer that the guilty plea represented " 'a voluntary and intelligent choice
among the alternative courses of action open to the defendant.' " (Howard, supra, 1
21 Cal.4th at p. 1177, quoting North Carolina v. Alford (1970) 400 U.S. 25, 31.) In
addition, Parson was convicted of other offenses on three different occasions in the year
prior to this plea. Parson's prior involvement with the criminal justice system supports a
reasonable inference that he was aware of his trial rights. Under the totality of the
circumstances, the record contains sufficient evidence to affirmatively show that Parson
entered his guilty plea to the 1992 charges knowingly and voluntarily. (Allen, supra, 21
Cal.4th at p. 437.)
III
ROMERO MOTION
Parson claims that the trial court abused its discretion in denying his motion to
strike one of his prior strikes and thus violated his constitutional right to due process.
(U.S. Const., 14th Amend.; Cal. Const., art. I, § 15; United States v. Tucker (1972) 404
U.S. 443, 446-447.) He argues that his two prior strikes stem from a single incident in
which he shot at, wounded, and robbed a liquor store clerk. He was 20 years old at the
time and has not incurred any other strikes since that time. Parson contends that the trial
court unduly emphasized his criminal history, giving insufficient weight to evidence
showing that he has made many positive changes in his life, and to the fact that the
current offense was a relatively low level felony in which no one was injured. He
maintains that the denial of his Romero motion resulted in a disproportionate sentence for
22 a nonserious, nonviolent felony that usually carries a maximum four-year sentence, or
may be treated as a misdemeanor.
At the beginning of the hearing on the Romero motion, the trial court observed
that it appeared that Parson had accomplished "a lot of good things," but that there were
also some disconcerting events in his past that weighed against granting his motion.
Characterizing the decision as a "close call," the trial court said that it was interested in
hearing about Parson's redeeming factors and qualities.
Parson told the trial court that he changed his life in 2010. He went back to
school, married, and became involved in the community. He had no criminal convictions
after 2008 and successfully completed parole. Parson obtained his general education
diploma, trained as an electrician, started a business, and was helping to support his
family. Jones-Parson and Palmer also testified on Parson's behalf.
The prosecution entered Parson's criminal history in evidence. Parson had been
involved in criminal activity since he was 15 years old. He incurred juvenile
adjudications in 1988, 1989, and 1990 for robbery, brandishing a deadly weapon, and
being under the influence of a controlled substance, respectively. Parson was convicted
in 1991 for possession of alcohol as a minor, and on three separate occasions in 1992 for
(1) having a concealed weapon in his vehicle, carrying a loaded firearm and giving false
information to police, (2) vandalism, and (3) attempted murder and robbery. In 2005, he
was convicted of felony child cruelty and possession of cocaine base. Parson was
23 reincarcerated on probation violations and released in January 2008. He committed the
current offense in June 2011.
The trial court found that Parson had made some positive changes in his life after
2008, but that he had a lengthy criminal history and resorted to homicidal violence when
he had been drinking and became upset. The trial court did not believe Parson's version
of the 1992 convictions. In denying the motion to strike a strike prior, the trial court said
that if it had the discretion, it would impose a 15- to 17-year sentence, but did not believe
that a sentence of eight or nine years was appropriate in view of Parson's history and
circumstances.
Legal Standard and Standard of Review
"[A] trial court may strike or vacate an allegation or finding under the Three
Strikes law that a defendant has previously been convicted of a serious and/or violent
felony, on its own motion, 'in furtherance of justice' pursuant to . . . section 1385(a)."
(People v. Williams (1998) 17 Cal.4th 148, 158 (Williams); Romero, supra, 13 Cal.4th at
p. 508.) An order striking such an allegation is a determination that in the interest of
justice, a defendant should not be required to undergo a statutorily increased penalty
based on a judicial determination of the prior felony conviction. (Romero, at p. 508.)
In ruling whether to strike a prior serious and/or violent felony conviction
allegation under the Three Strikes law, the trial court must consider, in view of the nature
and circumstances of the defendant's current felony offense, prior serious and/or violent
felony convictions, and background, character, and prospects, whether "the defendant
24 may be deemed outside the scheme's spirit, in whole or in part, and hence should be
treated as though he had not previously been convicted of one or more serious and/or
violent felonies." (Williams, supra, 17 Cal.4th at p. 161.) The trial court's order is
reviewed on appeal under the deferential abuse of discretion standard. We consider
whether the decision of the trial court falls outside the bounds of reason under the
applicable law and the relevant facts. (Id. at p. 162.)
Parson has not met his burden on appeal to show that the trial court abused its
discretion when it determined that he should not be deemed to be outside the spirit of the
Three Strikes law. The record shows that the trial court knew that it had the discretion to
dismiss one of the strike priors. In declining to do so, the trial court considered Parson's
criminal history, the probation reports, and the testimony of Parson, his wife, and the
victim, the current offense, and Parson's background, prospects, and current
circumstances. (Williams, supra, 17 Cal.4th at p. 161.)
The trial court acted within its discretion when it did not find Parson to be outside
the spirit of the Three Strikes law. (Romero, supra, 13 Cal.4th at p. 508.) Parson's
actions in 1992 could have resulted in the death of the liquor store clerk. In 2005, he
assaulted a girlfriend's daughter and was convicted of felony child cruelty. He was
placed on probation, only to be reincarcerated on probation violations. He was released
from prison in 2008. Beginning in 2010, it appears that Parson was improving his
circumstances. He was released from parole. He went back to school and trained as an
25 electrician. Parson married and was helping to support his family. His marriage,
however, was not without conflict. In June, the neighbors telephoned the police when he
and his wife had a screaming argument after he locked her out of their home. When his
wife returned with her son, escalating the argument, neither the presence of the neighbors
nor the knowledge that they had telephoned the police for emergency assistance deterred
Parson from leaving his home, chasing his teenage stepson with a knife, and threatening
to kill him.
The trial court found that after having had numerous opportunities to improve his
life, Parson still resorted to homicidal violence when he became upset while inebriated.
The record supports the trial court's findings. Parson has a history of violence spanning
three decades. In 1992, he shot a store clerk. In 2005, he physically assaulted a teenager.
In 2011, he chased his stepson with a knife, threatening to kill him. If his stepson had not
been able to reach a place of safety, the consequences of Parson's anger and intoxication
could have been deadly.
In reviewing a ruling on a Romero motion, the reviewing court may not reverse for
abuse of discretion unless the appellant shows that the trial court's ruling was "so
irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony
(2004) 33 Cal.4th 367, 377.) Parson has not made this showing.
IV
PRESENTENCE CONDUCT CREDIT
Parson contends that because his current offense is not a violent felony within the
meaning of section 667.5, subdivision (c), he is entitled to presentence conduct credit
26 calculated under section 4019, rather than under section 2933.1, which limits credit to 15
percent of actual time. Parson does not state the amount of credit that he believes that he
is entitled to under section 4019.
The People agree with Parson that section 4019 governs the calculation of credit in
this case. We also agree. Absent specified circumstances not present here, assault with a
deadly weapon is not deemed a violent offense within the meaning of section 667.5,
subdivision (c). (People v. Williams (2000) 79 Cal.App.4th 1157, 1175-1176.) Parson is
therefore entitled to conduct credit calculated under section 4019.
V
ASSESSMENTS
Parson contends that the trial court erred in imposing a "court security fee" under
section 1465.8 in the amount of $60. He maintains that the correct amount is $40. The
People agree that the $60 fee is incorrect. The People state that at the time Parson was
convicted, the court security fee was $30. The People also contend that the trial court
erred in failing to impose a "criminal conviction fee" in the amount of $30, as required by
Government Code section 70373.
The record shows that in its written recommendations, the probation department
recommended that the trial court order Parson to pay a fee of $70, consisting of the $40
"court security fee" required by section 1465.8 and the $30 criminal conviction
assessment required by Government Code section 70373. The $70 figure on the
probation report was interlineated and amended to $60 without any correlating
adjustment in the line item amounts. In sentencing Parson and imposing fees, fines and
27 restitution, the trial court stated, "You've got $60 court security fee and no attorneys' fees,
no PSI." The minute order and the abstract of judgment reflect the imposition of a $60
"[c]riminal assessment and court operations assessment."
Government Code section 70373 requires the trial court to impose a $30
assessment on every conviction for a criminal offense to ensure and maintain adequate
funding for court facilities. Under section 1465.8, the trial court is required to impose an
assessment to assist in funding court operations. In the past, this assessment was referred
to as a "court security fee." (People v. Phillips (2010) 186 Cal.App.4th 475, 478; see
Stats. 2011, ch. 40, § 6, eff. June 30, 2011 [changing the word "fee" to "assessment"].)
The section 1465.8 assessment is imposed as of the date of conviction. (Phillips, at
p. 478.) At the time of Parson's conviction on October 13, 2011, the amount of the
section 1465.8 assessment was $40. (§ 1465.8, Stats. 2011, ch. 40, § 6, eff. June 30,
2011.)
Whether the clerk's minutes or the reporter's transcript prevails depends upon the
circumstances of each case. (People v. Smith (1983) 33 Cal.3d 596, 599.) Because the
trial court had no discretion but to impose the assessments required by section 1465.8 and
Government Code section 70373, we conclude that the trial court misspoke when it
referred to the $60 assessment as a "court security fee." The minute order and abstract of
judgment correctly reflect the imposition of the assessments required under section
1465.8 and Government Code section 70373. However, the amount of the section 1465.8
assessment should have been $40, not $30.
28 DISPOSITION
We remand the matter to the trial court to determine the amount of conduct credit
due to the defendant under section 4019, and to amend the abstract of judgment
accordingly. We also direct the trial court to impose a $40 assessment under section
1465.8 and a $30 assessment under Government Code section 70373, in lieu of the $60
"[c]riminal assessment and court operations assessment," and to amend the abstract of
judgment accordingly. As modified, the judgment is affirmed. The trial court is directed
send a copy of the amended abstract of judgment to the Department of Corrections and
Rehabilitation.
AARON, J.
WE CONCUR:
MCCONNELL, P. J.
BENKE, J.