gno.law

People v. Price

California Court of Appeal · D013262 · 1992-03-25 · Published · 4 Cal. App. 4th 1272 · 6 Cal. Rptr. 2d 263 · 92 Cal. Daily Op. Serv. 2603 · 92 Daily Journal DAR 4099 · 1992 Cal. App. LEXIS 376

The PEOPLE, Plaintiff and Respondent, v. MICHAEL EDWARD PRICE, Defendant and Appellant

Area
criminal
Panel
Howard B. Wiener (author)

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T07:33Z · confidence high

The trial court denied Price's motion for a new trial and sentenced him to 19 years and 8 months, including a five-year enhancement under Penal Code section 667, subdivision (a), based on a prior robbery conviction that was also used to establish the element of his petit theft with a prior conviction. The Court of Appeal affirmed the judgment, holding that the trial court applied the correct standard for the new trial motion and that the dual use of the prior conviction did not violate the prohibition against double punishment.

Ruling reviewedStandardThe courtThe model
Denial of motion for new trial
“We conclude here the court applied the correct test.”
abuse of discretioncorrectagree with court
agree with court
Imposition of five-year enhancement under section 667, subdivision (a) for prior robbery
“We therefore hold the court could properly impose an eight-month subordinate term for the petit theft with a prior and an additional five years for the robbery enhancement under section 667 subdivision (a).”
de novocorrectagree with court
agree with court

Authorities

  • relied: People v. Serrato (1973) 9 Cal.3d 753 — Trial court must independently weigh evidence on motion for new trial.
  • relied: People v. Navarro (1946) 74 Cal.App.2d 544 — Court must use its own judgment and cannot rely on jury's conclusions when weighing evidence.
  • relied: People v. Sarazzawski (1945) 27 Cal.2d 7 — Appellate court will not set aside new trial rulings except where trial court abused its broad discretion.
  • relied: People v. Edwards (1976) 18 Cal.3d 796 — Sentence is improper where same prior is used as element of offense and to enhance punishment.
  • relied: People v. Wilks (1978) 21 Cal.3d 460 — Sentence is improper where same prior is used as element of offense and to enhance punishment.
  • relied: People v. Bruno (1987) 191 Cal.App.3d 1102 — Legislative deletion of prohibition allows enhancement based on same prior conviction as underlying section 666 charge.
  • relied: People v. Levell (1988) 201 Cal.App.3d 749 — Supports the view that Edwards is limited by legislative changes and does not prohibit dual use of priors in this context.
  • relied: People v. Ancira (1985) 164 Cal.App.3d 378 — Held that imposing an enhancement for a prior conviction that was the basis for a section 666 charge was impermissible (distinguished/rejected by current court).
  • relied: People v. Dobson (1988) 205 Cal.App.3d 496 — Section 654 applies to enhancements.

The appellate opinion: sound — The court correctly applied the abuse of discretion standard to the new trial motion, finding the trial court's statement that 'evidence was sufficient' reflected independent judgment. On sentencing, the court correctly distinguished Edwards and Wilks by relying on Bruno and Levell, which hold that legislative changes permit the dual use of a prior conviction for both a section 666 element and a section 667 enhancement.

How this analysis was made · dispute it

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:32Z · confidence medium

The trial court denied Price's motion for a new trial on his residential burglary conviction and sentenced him to 19 years 8 months, including an eight-month subordinate term for petit theft with a prior robbery conviction (§ 666) and three five-year serious-felony enhancements under § 667(a), one of which rested on the same robbery conviction. The Court of Appeal held the trial court applied the correct independent-weighing standard on the new trial motion and that using the robbery prior both to elevate the petit theft and to enhance the burglary sentence was lawful, and affirmed.

Ruling reviewedStandardThe courtThe model
Denial of motion for new trial challenging weight of the evidence supporting the burglary conviction
“Although it would have been preferable for the court to have been more specific, stating it was denying the motion based on its independent weighing of the evidence, its failure to do so and its use of less than artful language cannot be equated with having applied the wrong standard.”
abuse of discretioncorrectagree with court
The court correctly stated the governing rule (Serrato, Navarro) that the trial judge must independently weigh the evidence and may not defer to the jury, then read the ambiguous ruling as reflecting independent judgment because the judge first said the evidence was 'sufficient' before adding the jury-oriented comment. The reading is thin, since 'sufficient' is substantial-evidence language and the follow-on remark sounds deferential, but on an ambiguous record a presumption the court knew and applied the correct standard is defensible; the opinion did not address People v. Robarge, the Supreme Court case reversing where the judge expressly deferred to the jury, which would have sharpened the distinction.
Imposition of a five-year § 667(a) enhancement based on the same prior robbery conviction that elevated the petit theft to a felony under § 666
“We therefore hold the court could properly impose an eight-month subordinate term for the petit theft with a prior and an additional five years for the robbery enhancement under section 667 subdivision (a).”
de novocorrectagree with court
The court properly held § 654 inapplicable because what is punished is the defendant's recidivist status, not the prior robbery act, while expressly preserving its own rule (Dobson) that § 654 can apply to enhancements. It then reasonably followed Bruno, Levell, and Rodriguez over Ancira, since Edwards and Wilks rested on a since-repealed statutory dual-use prohibition. Further, the § 667(a) enhancement here attached to the burglary count, not the § 666 count, so even Edwards/Wilks did not squarely apply. The Supreme Court later endorsed this status-based reasoning in People v. Coronado, confirming the result.

Authorities

  • relied: People v. Serrato (1973) 9 Cal.3d 753 — On a new trial motion the trial court must independently weigh the evidence rather than defer to the jury.
  • relied: People v. Navarro (1946) 74 Cal.App.2d 544 — The trial judge ruling on a new trial motion must use its own judgment on credibility and conflicts and cannot rely on the jury's conclusions.
  • relied: People v. Sarazzawski (1945) 27 Cal.2d 7 — A ruling on a new trial motion is reviewed for clear abuse of the trial court's broad discretion.
  • relied: People v. Bruno (1987) 191 Cal.App.3d 1102 — Because the Legislature deleted the dual-use prohibition underlying Edwards, a prior felony conviction may support both a § 666 charge and a prior-conviction enhancement.
  • relied: People v. Levell (1988) 201 Cal.App.3d 749 — Same prior may be used for § 666 and for an enhancement; Edwards is no longer controlling.
  • relied: People v. Rodriguez (1988) 206 Cal.App.3d 517 — Disagreeing with Ancira; dual use of a prior under § 666 and an enhancement statute is permissible.
  • relied: People v. Dobson (1988) 205 Cal.App.3d 496 — Section 654 applies to enhancements.
  • relied: People v. Edwards (1976) 18 Cal.3d 796 — Under former law, a prior could not be used both as an element of the offense and to enhance punishment for that offense; distinguished as resting on a repealed provision.
  • relied: People v. Wilks (1978) 21 Cal.3d 460 — Same prior may not be used both as an element and as an enhancement under former law; distinguished.
  • relied: People v. Ancira (1985) 164 Cal.App.3d 378 — Held a § 667.5 enhancement could not rest on the prior underlying a § 666 charge; the court declined to follow it.
  • missed: People v. Robarge (1953) 41 Cal.2d 628 — Reversal is required where the trial court, ruling on a new trial motion, treats itself as bound by the jury's credibility determinations instead of independently weighing the evidence.

The appellate opinion: sound with gaps — The sentencing analysis is careful, distinguishes the Edwards/Wilks line on its statutory footing, preserves the rule that § 654 reaches enhancements, and reaches a result the Supreme Court later confirmed. The new trial discussion reaches a defensible result but reads an ambiguous record generously and omits the Supreme Court's Robarge decision, the leading authority on a trial judge deferring to the jury on a new trial motion.

How this analysis was made · dispute it

Opinion — Wiener

Opinion

WIENER, Acting P. J.

Defendant Michael Edward Price appeals from the judgment entered on the jury verdict convicting him of residential burglary (Pen. Code, §§ 459, 460) 2 , his guilty plea to petit theft with a prior (§§ 484, 666) and the court’s determination he had previously been convicted of three serious felonies pursuant to section 667, subdivision (a). Price claims the court applied an incorrect standard in denying his motion for new trial and made sentencing errors. He therefore asks us to strike one five-year enhancement and remand for resentencing. We reject these contentions and affirm the judgment.

I

New Trial Motion

Price’s conviction of first degree burglary was based primarily on Edward Koperda’s testimony. Koperda testified he recognized Price leaving the *1275 apartment of Collette Pack carrying “a ghetto blaster.” The testimony of a single witness, here, Koperda’s, is sufficient to support Price’s burglary conviction. Nonetheless because of the alleged weakness in the prosecution’s case, Price challenges the court’s denial of his new trial motion directing us to the court’s statement made at the time of its ruling:

“Okay. And, counsel, I did read and consider the points and authorities, and I didn’t take it lightly, but I respectfully deny the request for a new trial. I think the evidence was sufficient, and I think that the jury—there was enough evidence there for the jury to do what the jury did . . .” (Italics added.)

Based on the foregoing highlighted statements Price argues the record strongly suggests the court “did not give [him] a second decision on the weight of the evidence.” He therefore claims he is entitled to a further hearing on his new trial motion.

Price correctly explains that in ruling on a motion for a new trial the trial court must independently weigh the evidence (People v. Serrato (1973) 9 Cal.3d 753, 761 [109 Cal.Rptr. 65, 512 P.2d 289]; overruled on other grounds in People v. Fosselman (1983) 33 Cal.3d 572 [189 Cal.Rptr. 855, 659 P.2d 1144].) An unsuccessful litigant is first entitled to a decision by the jury and then independently by the judge who must consider the sufficiency of the evidence, weigh the conflicts and inconsistencies and evaluate the credibility of witnesses. In making this determination the court must use its own judgment and cannot rely on the jury’s conclusions. (People v. Navarro (1946) 74 Cal.App.2d 544, 554 [169 P.2d 265].)

Because of the trial court’s unique position to perform these duties an appellate court will not set aside such rulings except where it clearly appears the trial court abused its broad discretion. (People v. Sarazzawski (1945) 27 Cal.2d 7,16 [161 P.2d 934].) We conclude here the court applied the correct test.

The court first denied the request for new trial, and then said, “I think the evidence was sufficient.” Only after making this statement did the court say “there is enough evidence there for the jury to do what the jury did . . .” In other words the court’s exercise of its independent judgment is reflected in its statement that the evidence was sufficient. The court’s further comment there was substantial evidence to support the jury’s determination is surplusage.

*1276 The principles underlying the granting or denying of a new trial motion are not arcane. Lawyers and judges are well aware there is no more awesome power than that of the trial court in determining whether to grant or deny a new trial motion. In a jury trial it is the only time the court must exercise independent judgment in weighing the evidence. Here the court’s burden was unusually heavy since the theft of the ghetto blaster, not a particularly egregious crime in the abstract, necessarily triggered a substantial prison sentence in light of the three 5-year enhancements required by section 667 subdivision (a). Although it would have been preferable for the court to have been more specific, stating it was denying the motion based on its independent weighing of the evidence, its failure to do so and its use of less than artful language cannot be equated with having applied the wrong standard. We therefore reject Price’s argument.

II

Sentencing Errors

The Court Did Not Err in Imposing a Five-year Enhancement Under Section 667, Subdivision (a) for the Prior Robbery Conviction

On October 27, 1989, a security guard at a K-mart store saw Price take $17 worth of cigarettes without paying for them. Price admitted the theft to the arresting officer. The information in this case charged Price with petit theft under section 484 and having been previously convicted of robbery and having served a term therefor in a penal institution within the meaning of section 666. 3 Price pled guilty to this charge and the court sentenced him to an eight-month subordinate term for this offense. 4 The same robbery conviction also resulted in a five year enhancement under section 667, subdivision (a). Price contends that punishing him twice for the identical robbery conviction is unlawful and we should strike the enhancement based on the robbery.

Price rests his argument on two California Supreme Court decisions, People v. Edwards (1976) 18 Cal.3d 796 [135 Cal.Rptr. 411, 557 P.2d 995], *1277 and People v. Wilks (1978) 21 Cal.3d 460 [146 Cal.Rptr. 364, 578 P.2d 1369], each of which held a sentence is improper where it allows the same prior to be used both as an element of the substantive offense and to enhance punishment for that offense. (Edwards at p. 800; Wilks at p. 470.) More specifically Price directs us to the following statement in People v. Ancira (1985) 164 Cal.App.3d 378, 382 [210 Cal.Rptr. 527]: “Ancira correctly contends that the court improperly imposed a one-year enhancement under Penal Code section 667.5 for the prior burglary conviction that was the basis for the charge of violating Penal Code section 666. The clerk’s transcript and the court’s comments at the sentencing hearing demonstrate that an enhancement was imposed for the burglary underlying the section 666 violation. This was impermissible. [Citation.]”

Price asserts ‘the Supreme Court’s decisions in Edwards and Wilks comport with the fundamental principle, that a defendant not be punished more than once for the same act, which is embodied in section 654 of the Penal Code.”

Initially we reject Price’s suggestion that section 654 applies to this case. Section 654 provides in part: “An act or omission which is made punishable in different ways by different provisions of this code may be punished under either of such provisions, but in no case can it be punished under more than one . . . .” This provision by its terms refers to an act or omission, here, the act of committing robbery. In this case Price’s conduct in committing the earlier robbery is not in issue. Rather it is his status as having been convicted of that offense on an earlier occasion which triggers application of section 666 as it relates to the petit theft and section 667, subdivision (a) as it relates to his conviction of residential burglary, a serious felony. Section 654 is inapplicable.

In reaching this conclusion we wish to emphasize we do not accept the Attorney General’s assertion that section 654 does not apply to enhancements. We have expressly held to the contrary stating “it is now well-accepted that section 654 applies to enhancements. [Citations.]” (People v. Dobson (1988) 205 Cal.App.3d 496, 501 [252 Cal.Rptr. 423], citing cases in accord and contra.)

On the merits of the argument Price concedes People v. Rodriguez (1988) 206 Cal.App.3d 517 [253 Cal.Rptr. 633]; People v. Levell (1988) 201 Cal.App.3d 749, 753 [247 Cal.Rptr. 489]; and People v. Bruno (1987) 191 Cal.App.3d 1102, 1107 [237 Cal.Rptr. 31], sharply disagree with People v. Ancira, supra, 164 Cal.App.3d 378. Nonetheless, regardless of these cases he insists Ancira's decision is sound and we must reject Rodriguez, Levell and *1278 Bruno because they conflict with the principles expressed in Edwards and Wilks.

The difficulty we have with this argument is that Price fails to dispute the categorical statements in Bruno and Lev ell which explain that Edwards was based on a penal provision which prevented the dual use of a fact to both determine the sentence and enhance it. (Bruno, supra, 191 Cal.App.3d at p. 1106.) The Legislature’s deletion of this provision prompted Bruno to state: “[i]t is nevertheless clear that the deletion of this prohibition absolutely precludes a [statutory] construction of the existing section which would again include the prohibition just as if it had not been eliminated by the Legislature. [Citation.] Consequently, neither Edwards nor its progeny, Arcara, is authority for prohibiting an enhancement under section 667.5 based upon the same prior felony conviction as constitutes the underlying conviction for a section 666 charge.” (Id. at p. 1107.) We therefore reject Price’s assertion that Ancira is persuasive precedent because of the governing principles expressed in Edwards and Wilks. To the contrary we conclude the analysis in Bruno and Levell is more persuasive and accordingly our decision here will be governed by those cases.

Clearly the Legislature could determine an offender who committed petit theft having previously been convicted of a robbery and having served a term therefor in a penal institution deserved greater punishment then the offender committing petit theft without having been convicted of an earlier crime and incarcerated for that crime. Generally, greater punishment for the recidivist is consistent with the principles governing our criminal justice system. In addition the Legislature also had the power to prescribe greater punishment for an offender who committed a serious felony having previously been convicted of a serious felony. These different but related penal objectives requiring the repeat offender to be incarcerated for additional periods of time are clearly constitutional and are not violative of any penal statute. We therefore hold the court could properly impose an eight-month subordinate term for the petit theft with a prior and an additional five years for the robbery enhancement under section 667 subdivision (a).

Ill, IV *

*1279 Disposition

Judgment affirmed.

Benke, J., and Froehlich, J., concurred.

A petition for a rehearing was denied April 23, 1992, and appellant’s petition for review by the Supreme Court was denied June 10, 1992.

2

All statutory references are to the Penal Code unless otherwise specified.

3

Section 666 provides in part:

“Every person who, having been convicted of . . . robbery, . . . and having served a term therefor in any penal institution, ... is subsequently convicted of petit theft ... is punishable [on such conviction] by imprisonment in the county jail not exceeding one year, or in the state prison.”

4

Price’s total sentence was 19 years, 8 months.

*

See footnote 1, ante, page 1272.

Cites, in this corpus

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