Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Los Angeles County, No. MA043124, Carol C. Koppel, Judge.
Kelly Cronin Martin, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, James William Bilderback II, Chung L. Mar and Roberta L. Davis, Deputy Attorneys General, for Plaintiff and Respondent.
DOI TODD, Acting P. J.
Steven Shandale Bell appeals from the judgment entered upon his convictions by jury of felony child abuse (Pen. Code, § 273a, subd. (a), count 1) and corporal injury to a child’s parent (§ 273.5, subd. (a), count 2). In connection with count 1, the jury found to be true the allegation that appellant personally inflicted great bodily injury on a child under the age of five (§ 12022.7, subd. (d)). The trial court sentenced appellant to an aggregate prison term of 13 years, imposing the upper term of six years on count 1, plus a consecutive upper term of six years for the great bodily injury enhancement and one-third of the midterm, or one year, on count 2. Appellant contends that (1) he was deprived of his state and federal rights to effective assistance of counsel by the trial court’s denial of defense counsel’s request to withdraw due to a conflict of interest, (2) there was insufficient evidence to support his conviction of felony child abuse, (3) the trial court deprived him of his Fifth, Sixth and Fourteenth Amendment rights by refusing to instruct the jury on the defense of accident, (4) admission of appellant’s prior misdemeanor convictions to show his character for violence violated his federal rights to due process and a fair trial, (5) the trial court erred in admitting evidence of appellant’s and H.R.’s dates of birth, (6) the cumulative effect of the combined errors deprived appellant of a fair trial, mandating reversal, and (7) imposition of the upper term sentence in count 1 and the corresponding enhancement violated his rights to due process and a jury trial.
All further statutory references are to the Penal Code unless otherwise indicated.
We affirm.
FACTUAL BACKGROUND
The prosecution’s evidence
On April 15, 2006, 19-year-old H.R. and her newborn child with appellant (the baby), were living in Lancaster with H.R.’s foster mother, Maria G. H.R. had only been living there for a week. She would sometimes let the baby cry for an hour and neglected to feed and change her diaper. Maria G. and Maria A., another of Maria G.’s foster children, had to care for the infant. Everyday, Maria A. heard H.R. threaten to give the baby away when H.R. was speaking to appellant on the phone. H.R. never hit or was physically abusive to the baby.
In the afternoon of April 15, 2006, appellant arrived in a van in front of Maria G.’s home. He remained outside. According to Maria A., H.R. went back and forth from the house to the van three times, taking various items outside each time. The first time she went outside, H.R. took the baby with her and left her in the van when she returned to the house. She told Maria A. that appellant was going to hit her if she did not bring him the baby’s birth certificate and vaccination records. When H.R. was unable to locate them, she brought other records to appellant. The last time H.R. returned to the house, she had a black eye and was crying. She told Maria A. that appellant hit her because she did not bring the correct records. H.R. said that she and appellant had been arguing, and she grabbed the baby and held her against her shoulder as a shield so that appellant “couldn’t hit [H.R.].” Appellant nonetheless tried to hit H.R., but struck the baby instead.
After the incident, the baby was crying and would not take a bottle. Maria A. told H.R. to take the baby to the hospital. There, Dr. Clare Sheridan-Matney determined that the baby had suffered a blunt force trauma to the head, resulting in a skull fracture, swelling, bleeding of the brain and a small stroke. As a result, the infant suffered seizures, weakness on the right side of her body, and other serious problems that continued up until the time of trial. The doctor also observed that the baby was generally not well cared for. Dr. Sheridan-Matney opined that the baby’s injuries could not have been caused by falling from someone’s arms or falling from a car seat to the floor. The injuries were consistent with having been punched in the head by an adult male. Some of the injuries could have been caused by being shaken, and the doctor could not rule out the possibility that shaking may have occurred before the blow.
Pamela Jones, the social worker who investigated the incident, spoke with appellant twice. In the first conversation, a few days after the incident, he told her that H.R. dropped the baby in his van, and her head struck some rocks on the floor. Appellant was not in the van at the time. Four months later, appellant told Jones that H.R. had violently shaken the baby when they were arguing in the car. Appellant became angry when H.R. refused to give him the baby and tried to hit H.R., accidentally hitting the baby in the head. Appellant then hit H.R. in the eye.
Jones reported that in her second conversation with appellant he stated that he hit the baby by accident when he had attempted to hit mother. Because he was still angry at mother, he struck out again and hit mother in the eye. Father said that he hit mother because while he and mother were arguing, mother began shaking the baby violently. He said that he asked mother to give him the baby and she refused, telling the baby that it was all her fault that she could not leave placement with appellant. Father said that while they were in the car he tried to take the baby from mother, but she held the baby away from him. Father said that he became angry at mother and tried to hit mother but struck the baby instead.
The defense’s evidence
Ginger B., Maria G.’s daughter who lived with Maria G., testified that H.R. regularly neglected the baby, refused to feed her or to change her diapers. When the baby was crying, H.R. would tell the baby to shut up, once saying, “Let that bitch cry.” Ginger B. also heard H.R. say she was going to give the baby away and repeatedly say she was going to starve the baby. Maria A. had to feed the baby and change her diapers. When H.R. got angry at appellant, she took it out on the baby.
Dr. Sheridan-Matney opined that it was possible that some of the baby’s injuries were caused by being shaken or thrown, in addition to being struck, but that violently shaking a baby would not cause a skull fracture.
DISCUSSION
I. Motion to withdraw as counsel
A. Background
On December 9, 2008, at the beginning of the second day of testimony, defense counsel announced that the Alternate Public Defender’s (APD) office was declaring a conflict. The trial court immediately denied the motion. Defense counsel requested permission to put the reasons for the conflict on the record at the end of trial. The prosecutor requested the reasons immediately. Defense counsel responded, “No. I cannot say them now.” The court commented, “That’s your choice” and again denied the motion because, “There’s nothing backing it.” Defense counsel said that he did not have to provide reasons because counsel, not the court, determines if there is a conflict. The trial court questioned, “In the middle of a trial?” Defense counsel explained that he could not have declared the conflict sooner because the conflict was only discovered the previous evening. He stated he could not divulge the newly discovered information or how it impacted the case. Without further comment, the trial court sent for the jury.
Later that day, while discussing jury instructions after the close of the evidence, defense counsel asked for an ex parte hearing to place his reasons for declaring the conflict on the record. The trial court refused, stating it was not the close of the case as defense counsel had requested. But after instructing the jury, the trial court conducted the hearing. Defense counsel explained that another APD office represented H.R. in a prostitution case in which she pled guilty on December 3, 2008. Defense counsel had not learned of this earlier because H.R. had used a false name in the prostitution case. He discovered this the previous evening when talking to a potential witness, who said H.R. had been recently arrested using the name “[H.] Medina.” When defense counsel searched the computer data base, he learned that “[H.] Medina” had a prostitution case represented by the APD’s Van Nuys office.
On our own motion, we take judicial notice of the Superior Court file in case No. 8PY07360, which reflects that H.R. was also sentenced on December 3, 2008. (Evid. Code, § 452, subd. (d).)
The trial court again denied the motion, stressing that H.R.’s attorney in the prostitution case, should have been released, not counsel in the present case. It stated, “[A]nd you should have made sure that that occurred. You said you just found it out. And the moment you found it out, you should have called.... Counsel explained that “It was already too late. [H.R.] had already pled on December 3rd.” The trial court saw no problem with the APD representing appellant because the statements attributed to H.R. and the discovery regarding her, “would not have been helpful to this defendant in anyway.” But defense counsel explained that H.R. gave conflicting statements to Los Angeles County Sheriff’s Detective Susan Velazquez, and he could not call H.R. or the detective regarding those statements, could not cross-examine Dr. Sheridan-Matney about what H.R. told her, and could not examine Jones regarding H.R.’s statements to her. The trial court noted that the defense had not included H.R. on its witness list or subpoenaed her and thus would not have called her as a witness. It repeated its denial of the motion, stating, “I think that your client comes first.”
The probation report notes: “Victim Statement: According to the police report, the victim [the baby] was struck in the head by the defendant as victim H.R. held her up thinking the defendant would not strike her if she was holding the baby.”
B. Contention
Appellant contends that the trial court erroneously denied his attorney’s motion to withdraw due to a conflict of interest, thereby depriving him of his right to assistance of counsel and due process. He argues that there was a conflict because his attorney’s examination of H.R. could have subjected her to “future criminal prosecution in the present case” for child endangerment, as the police report indicated that she used the baby as a shield from appellant’s punch, and defense counsel would have to use “facts about the unrelated prostitution case” in impeaching her. The denial of his motion forced counsel to divide his loyalty between appellant and H.R., hampering his representation of appellant. We find this contention to be without merit.
C. Standard of review
The determination of whether to grant a motion to withdraw as counsel based on a conflict of interest lies in the sound discretion of the trial court. (See Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th 1128, 1133; see also People v. Horton (1995) 11 Cal.4th 1068, 1106.)
D. Right to conflict free representation
The Sixth Amendment to the United States Constitution and article I, section 15 of the California Constitution guarantee a criminal defendant the right to assistance of counsel. (People v. Doolin (2009) 45 Cal.4th 390, 417 (Doolin).) This “constitutional guaranty ‘entitles the defendant not to some bare assistance but rather to effective assistance.’” (People v. Bonin (1989) 47 Cal.3d 808, 833 (Bonin).) Assistance which is ineffective in preserving fairness does not meet the constitutional mandate. (Mickens v. Taylor (2001) 535 U.S. 162, 166 (Mickens).) Consequently, this constitutional right includes the correlative right to representation free from any conflict of interest that undermines counsel’s loyalty to his or her client. (Doolin, supra, at p. 417; Bonin, supra, at p. 834.)
“[A] conflict may exist ‘whenever counsel is so situated that the caliber of his services may be substantially diluted.’” (People v. Hardy (1992) 2 Cal.4th 86, 135–136.) “‘As a general proposition, such conflicts “embrace all situations in which an attorney’s loyalty to, or efforts on behalf of, a client are threatened by his responsibilities to another client or a third person or his own interests.” [Citation.]’” (Doolin, supra, 45 Cal.4th at p. 417.)
E. Adequacy of trial court’s inquiry
“When the trial court knows, or reasonably should know, of the possibility of a conflict of interest on the part of defense counsel, it is required to make inquiry into the matter.” (Bonin, supra, 47 Cal.3d at p. 836.) “The court, upon inquiring, may decline to relieve counsel if it determines the risk of a conflict is too remote.” While the representations of conflict by counsel should be given great weight because of the “grave penalties risked for misrepresentation” (Holloway v. Arkansas (1978) 435 U.S. 475, 485–486, fn. 9), counsel must, at least in a nonspecific and general fashion, attempt to provide some indication of the nature of the conflict. (See, e.g., Leversen v. Superior Court (1983) 34 Cal.3d 530, 536, 538 (Leversen) [counsel’s statement that conflict based on privileged information of which counsel could not reveal the nature or source sufficient to warrant removing counsel]; see also Aceves v. Superior Court (1996) 51 Cal.App.4th 584, 591–592 (Aceves); but cf. Manfredi & Levine v. Superior Court, supra, 66 Cal.App.4th at pp. 1134–1136 [counsel not relieved because “[u]nlike the representations [in other cases], Manfredi failed to supply the trial court with the slightest inkling of the nature of the alleged conflict”].) A trial court need not “accept a sweeping claim of conflict and ‘rubber stamp’ counsel’s request to withdraw.” (Aceves, supra, at p. 592.)
Here, when defense counsel first declared the conflict, he refused to provide any information as to the basis of the conflict until the case was over, going so far as to tell the court, in essence, that it was the lawyer’s unbridled right to declare a conflict, with no court oversight. Only later that day, did counsel request an ex parte hearing to explain the basis of the conflict. However, at that point, the trial court was not obligated to immediately interrupt the proceedings to attend to counsel’s newly articulated desires. As soon as the jury was instructed, the trial court conducted the ex parte hearing at which a comprehensive discussion yielded sufficient information for the trial court to determine whether to relieve counsel. The trial court satisfied its obligations to inquire into the conflict, and as discussed below, correctly determined not to allow counsel to withdraw. It therefore did not abuse its discretion.
F. Propriety of trial court’s ruling
Claims of Sixth Amendment violation based on conflicts of interest are a category of ineffective assistance of counsel claims that generally require a defendant to show (1) counsel’s deficient performance, and (2) a reasonable probability that, absent counsel’s deficiencies, the result of the proceedings would have been different. (Doolin, supra, 45 Cal.4th at p. 417.)
1. Deficient performance
In a conflict of interest claim, deficient performance is shown when defense counsel labored under an actual conflict of interest “‘that affected counsel’s performance-as opposed to a mere theoretical division of loyalties.’” (Doolin, supra, 45 Cal.4th at p. 417; Mickens, supra, 535 U.S. at p. 171.) Hence, “an actual conflict” for Sixth Amendment purposes is one that “‘adversely affects counsel’s performance.’” (Doolin, supra, at p. 418; Mickens, supra, at p. 172, fn. 5.)
Whether counsel’s performance was “‘adversely affected’” “‘requires an inquiry into whether counsel “pulled his punches”; whether counsel failed to represent defendant as vigorously as he might have, had there been no conflict. [Citation.] In undertaking such an inquiry, we are... bound by the record. But where a conflict of interest causes an attorney not to do something, the record may not reflect such an omission. We must therefore examine the record to determine (i) whether arguments or actions omitted would likely have been made by counsel who did not have a conflict of interest, and (ii) whether there may have been a tactical reason (other than the asserted conflict of interest) that might have caused any such omission.’” (Doolin, supra, 45 Cal.4th at p. 418.)
Appellant’s attorney did not “pull[] his punches” here. (Doolin, supra, 45 Cal.4th at p. 418.) From pretrial until the last day of trial testimony, defense counsel was unaware of any conflict with H.R., having just learned of it the evening before the case went to the jury. It is therefore impossible to conclude that anything counsel did, or did not do, before discovery of the purported conflict was affected by the conflict.
Defense counsel’s conduct after learning of the purported conflict, similarly reflects his conscientious and undivided loyalty in representing appellant. By the time he learned of the conflict, H.R. had already pled guilty and been sentenced in the prostitution case. Defense counsel continued to aggressively attack her. First, he called Dr. Sheridan-Matney to testify that some of the baby’s injuries could have been caused by being shaken. Second, during the instruction conference, he requested an instruction on the “defense of others” defense on the theory that appellant hit the baby trying to defend her from H.R. shaking her. Third, during closing argument, he strenuously argued that H.R. was an unfit mother, had possibly injured the baby by shaking her, and that appellant hit the baby and H.R. while trying to defend the baby from being shaken by H.R. Defense counsel also strenuously argued the negative inference to be drawn from the prosecutor’s failure to call H.R. to testify, though she was the only percipient witness.
Appellant argues that as a result of the purported conflict, he could not call H.R. to testify, and could not question her, Detective Velazquez, Dr. Sheridan-Matney or Jones about the statement in the police report that H.R. held the baby up to prevent appellant from striking H.R. But appellant does not claim that counsel would have done these things if no conflict existed. He merely speculates that he was prevented from doing so by the conflict.
We find it significant that before becoming aware of the purported conflict, defense counsel had not subpoenaed H.R. to testify or placed her on his witness list, suggesting that he never intended to call her. There were numerous strategic reasons for not calling H.R. Had H.R. testified, she would have had every incentive to attempt to exonerate herself from the shaking baby claims by pointing the finger at appellant. She might also have asserted her privilege against self-incrimination. Furthermore, by not calling H.R. defense counsel could argue that the prosecution had the burden of proving its case and failed to call H.R., a key witness. In any event, Maria A. had already testified that H.R. told her that she was holding the baby against her shoulder so that appellant would not hit her. Maria A.’s testimony put before the jury the evidence appellant now claims he could not present because of the conflict, without the risks attendant to having H.R. testify.
Because counsel’s theoretical conflict did not adversely affect his performance, there was no actual conflict for Sixth Amendment purposes. But even without deficient performance, a conflict might still arise if a former client is a witness in a case, and defense counsel attempts to use confidential information gained during the attorney’s representation of the witness against the witness. (Bonin, supra, 47 Cal.3d at p. 835; Leversen, supra, 34 Cal.3d at p. 538.) If the attorney possesses no such confidential information, courts have routinely held that no actual or potential conflict exists. (See People v. Lawley (2002) 27 Cal.4th 102, 145–146.) There is no suggestion that defense counsel had any confidential information pertaining to H.R. that was not public information. H.R.’s case had no relationship with appellant’s case. Also, when defense counsel learned of the APD’s representation of H.R., her case was over, and he did not know the attorney in the APD’s Van Nuys office who represented her. (See People v. Lopez (2008) 168 Cal.App.4th 801, 808.)
2. Prejudice
Generally, a defendant alleging a Sixth Amendment violation must demonstrate a reasonable probability that but for unprofessional errors, the result would be different. (Mickens, supra, 535 U.S. at p. 166.) “[A] defendant [must] demonstrate outcome-determinative prejudice from a violation of his state constitutional right to conflict-free counsel in order to obtain relief. ‘[A]ll trial court error under California law is governed by article VI, section 13 of the California Constitution: “No judgment shall be set aside, or new trial granted, in any cause, on the ground... for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”’ [Citation.]” (Doolin, supra, 45 Cal.4th at p. 420.) A defendant must “raise an informed speculation that the potential conflict adversely affected counsel’s performance.” (Id. at p. 419.)
As discussed in the previous section, there is no evidence that the alleged conflict had any impact on defense counsel’s representation of appellant. That being the case, it could not have had an impact on the verdict. It follows that no prejudice resulted.
II. Sufficiency of evidence of child abuse
Appellant contends that there was insufficient evidence to sustain his conviction of felony child abuse. He argues that there was no evidence that he had the general intent to “commit the assaultive act on a child” because he accidentally hit the baby. This contention is without merit.
“In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331.) We resolve all conflicts in the evidence and questions of credibility in favor of the verdict, and indulge every reasonable inference the jury could draw from the evidence. (People v. Autry (1995)37 Cal.App.4th 351, 358.) Reversal on this ground is unwarranted unless ‘“upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].’” (People v. Bolin, supra, at p. 331.) “‘[T]he appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’ [Citation.] This standard applies whether direct or circumstantial evidence is involved.” (People v. Catlin (2001) 26 Cal.4th 81, 139.)
A person is guilty of child abuse under section 273a, subdivision (a) when the person “willfully causes or permits any child to suffer, or inflicts thereon unjustifiable physical pain or mental suffering, or having the care or custody of any child, willfully causes or permits the person or health of that child to be injured, or willfully causes or permits that child to be placed in a situation where his or her person or health is endangered....” (§ 273a, subd. (a).)
In People v. Sargent (1999) 19 Cal.4th 1206 (Sargent), our Supreme Court reversed a Court of Appeal decision which had held that the mens rea for felony child abuse based on direct infliction of unjustifiable physical pain and mental suffering was criminal negligence. (Id. at p. 1209.) The Supreme Court instead held that such abuse requires general intent. (Id. at p. 1224 [“when the conduct at issue involves the direct infliction of unjustifiable physical pain or mental suffering on a child... the defendant must have a mens rea of general criminal intent to commit the proscribed act”].)
General intent only requires a purpose or willingness to commit the act or omission in question. (People v. Johnson (1998) 67 Cal.App.4th 67, 72.) “‘When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent even though he may not know that his act or conduct is unlawful.’” (People v. Lujan (1983) 141 Cal.App.3d Supp. 15, 28.) The perpetrator of a general intent crime need not intend to commit violence against a specific victim to be guilty. (People v. Lee (1994) 28 Cal.App.4th 1724, 1736.) “The pivotal question is whether the defendant intended to commit an act likely to result in such physical force, not whether he or she intended a specific harm.” (Id. at p. 1737.)
Here, H.R. told Maria A. that appellant tried to hit her, but accidentally hit the baby, fracturing her skull. Appellant told the social worker the same thing. This evidence is undisputed. Under section 273a, appellant directly inflicted physical pain and mental suffering on his newborn child by his intentional act in swinging at H.R. He was in close quarters, swinging violently at H.R., risking that he might accidentally hit the baby, or, if he hit H.R., cause her to drop the infant. He intended to commit the act that was “likely to result in... physical force” (People v. Lee, supra, 28 Cal.App.4th at p. 1737) on the baby and severely injure her. After missing her and hitting the baby the first time, he again swung at H.R., this time hitting her in the eye.
Appellant relies on language in Sargent that the actus reus of the offense of child abuse is “infliction of unjustifiable physical pain or mental suffering on a child.” (Sargent, supra, 19 Cal.4th at p. 1222; People v. Valdez (2002) 27 Cal.4th 778, 786–787 (Valdez).) Because the mens rea for any crime is “‘inextricably linked to the proscribed act or omission’ [citation]... the mens rea for the crime [is] the intent to perform the underlying injurious act on a child.” (Valdez, supra, at p. 786.) But the quoted comments were made in the context of deciding whether criminal negligence or general intent applied to direct infliction of harm on a child (Sargent) and child endangerment (Valdez). The court in Sargent stated, “In sum, we conclude that when the conduct at issue involves the direct infliction of unjustifiable physical pain or mental suffering on a child, criminal negligence is not an element of the offense. Rather, the defendant must have a mens rea of general intent to commit the proscribed act.” (Sargent, supra, at p. 1224.)
III. Instruction on defense of accident
The defense requested that the trial court instruct the jury on accident or misfortune in accordance with CALJIC No. 4.45. The prosecutor objected that the undisputed evidence was that appellant intentionally threw the punch that hit the baby. The trial court refused to give the requested instruction.
CALJIC No. 4.45 states: “When a person commits an act or makes an omission through misfortune or by accident under circumstances that show [no] [neither] [criminal intent [n]or purpose, ] [nor] [[criminal] negligence, ] [he] [she] does not thereby commit a crime.”
Appellant contends that the trial court erred in failing to instruct on the defense of accident, thereby depriving him of his state and federal constitutional right to present a meaningful defense. He argues that the intent required for a violation of the child abuse statute for direct injury to the child is the general intent to perform the injurious act on the child. “Accordingly, a theory that appellant accidentally inflicted injury on a child, the baby, while attempting to assault a person outside the enumerated class of victims, H.R., constitutes a legally applicable defense to a charge under section 273a.” This contention is without merit.
Generally, in criminal cases, the judge must give any requested correct instruction on the defendant’s theory of the case that the evidence justifies, no matter how weak or unconvincing that evidence may be. (People v. Jeffers (1996) 41 Cal.App.4th 917, 924–925; see also People v. Wilson (1967) 66 Cal.2d 749, 762.) “‘“[E]ven in the absence of a request, the trial court must instruct on general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jury’s understanding of the case.”’” (People v. Breverman (1998) 19 Cal.4th 142, 154.) “‘The duty to instruct, sua sponte, on general principles closely and openly connected with the facts before the court also encompasses an obligation to instruct on defenses....’” (People v. Lopez (1992) 11 Cal.App.4th 1115, 1120) that are “supported by substantial evidence [and] that are not inconsistent with the defendant’s theory of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.) The trial court has a duty to instruct sua sponte regarding a defense “‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ [Citation.]” (People v. Breverman, supra, 19 Cal.4th at p. 157.) Accident is a defense to criminal liability on which a trial court is obligated to instruct sua sponte. (See People v. Jones (1991) 234 Cal.App.3d 1303, 1313–1314.)
Section 26 provides in part: “All persons are capable of committing crimes except those belonging to the following classes: [¶]... [¶] Five-Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence.” “The defense of accident or misfortune requires the defendant to prove three negatives: he did not act with an evil design; he did not act with intent; and, he did not act with ‘culpable negligence.’” (People v. Thurmond (1985) 175 Cal.App.3d 865, 873.) The defense of accident is essentially “a claim that the defendant acted without forming the mental state necessary to make his actions a crime.” (People v. Gonzales (1999) 74 Cal.App.4th 382, 390.)
As discussed in part II, ante, appellant formed the mental state necessary to make his conduct a crime. He had the general intent to intentionally throw the punch that injured the baby, though intending to hit H.R. The fact that he accidentally hit the baby is no defense because it does not negate the required general intent that made his conduct criminal. He violently swung at H.R. as she was holding a newborn child to her chest, circumstances constituting criminal negligence, at the least, which precludes an accident instruction. (People v. Thurmond, supra, 175 Cal.App.3d at p. 873; People v. Penny (1955) 44 Cal.2d 861, 879; see also People v. Peabody (1975) 46 Cal.App.3d 43, 47.) These circumstances were enough to alert a reasonable person that his punch would likely hit the baby or hit H.R., causing her to drop the two-week-old infant. Even if appellant accomplished what he intended and hit H.R. instead of the baby, his conduct would still have been criminal. (See People v. Scott (2000) 83 Cal.App.4th 784, 800.) For these reasons the trial court did not err in refusing to instruct on accident.
IV. Evidentiary issues
A. Evidence of violent character
1. Background
Defense counsel informed the trial court of his intention to elicit Maria A.’s testimony that she heard H.R. state on numerous occasions that she wanted to give away the baby. He explained that that evidence was relevant to H.R.’s character and supported appellant’s claim that he hit the baby defending her from H.R.’s violent shaking. The trial court ruled that this evidence was admissible.
The prosecutor later sought to introduce evidence of three of appellant’s misdemeanor convictions under Evidence Code section 1103, subdivision (b); two 1996 convictions for inflicting corporal injury and battery on a former inhabitant or parent of a child and a 2001 conviction of simple battery. She argued that defense counsel had opened the door to use of evidence of appellant’s character for violence by introducing evidence of H.R.’s bad character.
Evidence Code section 1103, subdivision (b) states: “(b) In a criminal action, evidence of the defendant’s character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).”
The trial court ruled that the prior misdemeanors would be admissible if appellant proceeded with his “defense of others” defense and introduced evidence regarding H.R. shaking the baby, overruling defense counsel’s Evidence Code sections 1103 and 352 objections.
Defense counsel nonetheless proceeded to recall Maria A., who testified that H.R. argued with appellant on the phone and threaten to give the baby away. Maria A. explained that H.R. would neglect the baby and tell her to shut up. The prosecutor then called social worker Jones, who testified that appellant reported that H.R. was shaking the baby. This was the first evidence of violence by H.R.
The trial court took judicial notice of appellant’s three prior misdemeanor convictions.
2. Contentions
Appellant contends that the trial court erred in admitting his prior misdemeanor convictions to show his character for violence, thereby depriving him of his rights to due process and a fair trial. He argues that the prosecutor, not appellant, first introduced evidence of violence that triggered admission of appellant’s priors, and the fact that H.R. may have shaken the baby during the incident is not character evidence contemplated by Evidence Code section 1103, subdivision (b), which opens the door to evidence of a defendant’s violent character. Appellant also contends that the trial court erroneously refused to provide a limiting instruction on how the jury was to consider the prior misdemeanor convictions.
Respondent contends that appellant forfeited his arguments regarding the admissibility of his prior misdemeanor convictions by failing to raise them in the court below.
3. Forfeiture
Appellant objected in the trial court to admission of his prior misdemeanor convictions on the grounds that they were inadmissible under Evidence Code sections 1103, subdivision (b) and 352. Having done so, he was not required to state every argument that might support those objections, such as those respondent now claims were forfeited. Furthermore, we find that both of appellant’s arguments before us were before the trial court. Though inartfully stated, defense counsel argued, “Just because I elicited [social worker’s statement regarding H.R. shaking the baby]-in other words, I think it’s different. If I’m putting on an affirmative defense, I think that’s the difference is that if under-I think 1103, if the defense is putting on an affirmative defense that goes to this....” This statement alluded to the fact that evidence of an affirmative defense is different than character evidence required to invoke Evidence Code section 1103, subdivision (b). This is the essence of appellant’s argument before us. An objection to evidence will be deemed sufficient so long as it fairly apprises the trial court of the issue it is being called upon to decide. (People v. Carrillo (2004) 119 Cal.App.4th 94, 101.) The prosecutor raised the question of who first opened the door to evidence of violent character, placing that issue before the trial court.
4. Admissibility
Though all relevant evidence is generally admissible (Evid. Code, § 351), “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) The Legislature has provided an exception to this general rule of exclusion in Evidence Code section 1103, subdivision (b). In a criminal action, evidence of the character of the defendant for violence is admissible if offered to prove conduct of the defendant in conformity with that character trait after evidence that the victim had a character for violence has been adduced by the defendant. (Evid. Code, § 1103, subd. (b).)
There was no evidence of H.R.’s character for violence that justified admission of evidence of appellant’s violent character. The reasoning in People v. Myers (2007) 148 Cal.App.4th 546, 552–553 (Myers) is compelling. There, the defendant was charged with resisting arrest and battery on a peace officer. At trial, the defendant testified that the officer was overly aggressive toward him, slamming him against a wall and kicking his feet apart. (Id. at p. 550.) The Court of Appeal stated: “Evidence Code section 1103 contemplates that character evidence comprises something other than evidence of conduct at the time in question, because character evidence is used to show the person acted ‘in conformity with’ his or her character.” (Id. at p. 552.) “‘“[T]he offer is really of character at one period to prove character at another.”’” (Id. at p. 553.) “If evidence of a victim’s conduct at the time of the charged offense constitutes character evidence under Evidence Code section 1103, then every criminal defendant claiming self-defense would open the door for evidence of his own violent character. Evidence Code section 1103 cannot be read so broadly.” (Ibid.) Evidence of the victim’s violence at the time of the charged offense is not “character evidence, ” within the meaning of section 1103.
The only evidence of H.R.’s violent conduct was her shaking the baby during the charged incident. There was no evidence that she engaged in that conduct, or other violent conduct, at any other time. In fact, Maria A. testified that H.R. never hit or physically abused her infant.
Respondent argues that the character evidence that opened the door to appellant’s misdemeanor convictions pertained to H.R.’s treatment of the baby before the charged incident. H.R. berated her newborn, failed to care for her and threatened to starve her. But evidence of H.R.’s poor parenting, even negligent parenting, as offensive as it is, is not evidence of a violent character. Hence, the only evidence of H.R.’s violent character pertained to that which occurred during the charged incident, which, as stated by Myers, is not character evidence as contemplated by Evidence Code section 1103. Respondent does not claim that the misdemeanors were admissible under any other Evidence Code section. The misdemeanor convictions were therefore erroneously admitted in evidence.
5. Harmless error
We find the error in admitting evidence of appellant’s misdemeanor convictions to be harmless in that it is not reasonably probable that had that evidence been excluded appellant would have achieved a more favorable result. (People v. Watson (1956)46 Cal.2d 818, 836; People v. Scheer (1998) 68 Cal.App.4th 1009, 1018–1019.) Undisputed evidence established that on April 15, 2006 appellant acted violently toward H.R. and the baby. During closing argument, defense counsel conceded the point, stating: “[T]his case is not really a question of, did [appellant] punch [the baby]? That’s not what this case is about. He did. This case is not about whether [appellant] punched... [H.R.] He did. He did do those things.” Appellant’s claim that he was just trying to protect the baby from H.R.’s violent shaking was belied by his initial statement to the social worker that the baby had fallen and his statement that he tried to hit H.R. because she would not give the baby to him. Further, the impact on the jury of appellant’s prior convictions was diluted because they were less dramatic than his conduct during the charged incident, were misdemeanors rather than felonies, were somewhat remote in time and were presented to the jury through judicial notice, rather than through evidence of the underlying facts which might have been more dramatic.
6. Failure to instruct
a. Background
Defense counsel included in its packet of instructions CALJIC No. 2.23.1, dealing with “Believability of a Witness-Commission of Misdemeanor.” During the instruction conference, the prosecutor argued that that instruction applies when a misdemeanor is used for impeachment, not when, as here, the misdemeanor is admitted to show character for violence. Defense counsel agreed that this was not the correct instruction but indicated that he included it to remind himself to request an appropriate limiting instruction. He then urged the court to instruct the jury on how to consider the prior misdemeanor convictions, by either creating its own instruction or giving counsel time to prepare one. When the trial court appeared to ignore defense counsel, counsel inquired, “the court is not going to give any instruction whatsoever to address this issue and is not giving counsel time to prepare one either?” The court replied, “No” and moved on.
CALJIC No. 2.23.1 provides: “Evidence has been introduced for the purpose of showing that a witness, __________________, engaged in past criminal conduct amounting to a misdemeanor. This evidence may be considered by you only for the purpose of determining the believability of that witness. The fact that the witness engaged in past criminal conduct amounting to a misdemeanor, if it is established, does not necessarily destroy or impair a witness’s believability. It is one of the circumstances that you may consider in weighing the testimony of that witness.”
b. Contention
Appellant contends that the trial court erred in failing to give a limiting instruction on the evidence of his prior misdemeanor convictions. He argues that while the trial court had no obligation to give such an instruction sua sponte, it did have an obligation to tailor CALJIC No. 2.23.1. We disagree.
c. Refusal was proper
In the absence of a request, a trial court generally has no duty to give a limiting instruction. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1316; People v. Collie (1981) 30 Cal.3d 43, 64 [“the trial court is under no duty to instruct sua sponte on the limited admissibility of evidence of past criminal conduct”].) However, where an imperfect limiting instruction is submitted by counsel, the trial court must tailor it to give guidance to the jury on how to use the other crimes evidence, rather than denying the instruction outright. (People v. Falsetta (1999) 21 Cal.4th 903, 924 (Falsetta).)
Appellant did not submit an imperfect instruction on how the jury should consider prior misdemeanors as character evidence, but rather an instruction related to the use of a misdemeanor for impeachment purposes. The submitted instruction was based on different legal principles than an instruction limiting use of propensity evidence. It did not require “tailor[ing], ” but rewriting. (Falsetta, supra, 21 Cal.4th at p. 924.) Falsetta does not require that a trial judge prepare a requested instruction on the use of character evidence when none is submitted.
Moreover, the request was made during the instruction conference held immediately before the jury was to be instructed. Counsel was aware from the day before that the misdemeanor convictions were going to be introduced in evidence. Counsel submitted CALJIC No. 2.23.1 as a reminder, knowing it was not the correct instruction. It may have been a reminder to him, but it was not an adequate placeholder to require the court to draft an entirely different instruction. Under these circumstances, the trial court did not abuse its discretion in denying a continuance for counsel to prepare an instruction that could have been prepared earlier.
d. Harmless error
Even if the trial court erred in failing to give a limiting instruction, for the reasons set forth in part IVA5, ante, the error was harmless in that it is not reasonably probable that had the requested instruction been given, a result more favorable to appellant would have ensued. (Falsetta, supra, 21 Cal.4th at p. 925 [failure to instruct jury on use of propensity evidence reviewed under People v. Watson standard].)
There are additional reasons why any such error was harmless. The jury was instructed on the elements of each of the charged offenses. (CALJIC Nos. 9.37, 17.20.) It was told that “each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt.” (CALJIC No. 2.01.) During closing argument, the prosecutor informed the jury that, “You cannot convict the defendant based on those three prior misdemeanor convictions alone. You have to be convinced beyond a reasonable doubt that he actually committed the crimes in this case. That evidence, however, may be used to show that he has a predisposition to commit acts of violence.” The prosecutor did not argue that the jury should convict appellant based on his past conduct. (Falsetta, supra, 21 Cal.4th at p. 924.) Defense counsel also argued, “You can’t just say because [appellant] has these prior convictions he must have done this thing. You can’t do that. You have to base it on the evidence of what happened on April 15, 2006.” Thus, despite not receiving a formal instruction, counsel’s argument informed the jury of the essentials of considering propensity evidence.
B. Evidence of birth dates
1. Background
Evidence of H.R.’s and the baby’s birth dates was admitted without objection. Evidence of appellant’s birth date of August 11, 1972, was admitted over appellant’s relevance objection.
2. Contentions
Appellant contends that evidence of his and H.R.’s age was irrelevant and was highly inflammatory, outweighing any relevance under Evidence Code section 352. He argues that “the evidence here created a very strong danger that the jury would deem appellant a morally corrupt predator because he had become sexually involved with a 17-year-old girl (H.R. would have been pregnant with the baby at 17), when he was in his thirties. This created a risk that the jury would view appellant as more likely to commit the charged crimes because he was a morally bad person.”
Respondent contends that appellant forfeited his claims that the trial court erroneously allowed evidence of H.R.’s date of birth and that evidence of hers and appellant’s birth dates was erroneously admitted under Evidence Code section 352.
3. Forfeiture
We agree with respondent that appellant has forfeited his Evidence Code section 352 claim by objecting only on the ground of relevance. (People v. Barnett (1998) 17 Cal.4th 1044, 1130.) He has also forfeited his contention that the trial court erroneously admitted evidence of H.R.’s age by his failure to object to it. (People v. Montiel (1993) 5 Cal.4th 877, 932.) However, his relevance claim as to his own birth date was preserved by objection in the trial court.
4. Admissibility
Relevant evidence is all evidence “including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” (Evid. Code, § 210.) “Except as otherwise provided by statute, all relevant evidence is admissible.” (Evid. Code, § 351.) We review the admission of evidence for abuse of discretion. (People v. Davis (2009) 46 Cal.4th 539, 602.)
We fail to see the relevance of appellant’s age on any issue to be decided by the jury. Nothing in the charges against him depended on his age, and respondent has not provided any meaningful explanation of the relevance of this fact. Thus, we conclude there was no justification for its admission.
5. Harmless error
On the other hand, we do not agree with appellant that such innocuous evidence as appellant’s age would result in the dire prejudice he asserts. It is not reasonably probable that had that evidence been excluded, appellant would have achieved a more favorable result. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Scheer, supra, 68 Cal.App.4th at pp. 1018–1019.) The evidence against appellant was strong. Furthermore, appellant was in court during trial, and the jury had the opportunity to see him and estimate his age. Moreover, there was evidence about appellant’s prior convictions, two of which occurred approximately 12 years before trial, which provided the jury with some information about his age. Finally, given the unfavorable evidence regarding H.R. caring for her newborn, it is unlikely she would be viewed as the poor victim of appellant because of their age disparity.
V. Cumulative error
Appellant contends that the cumulative effect of all of the instructional errors mandates reversal, even if no single error does. This contention lacks merit. “Lengthy criminal trials are rarely perfect, and this court will not reverse a judgment absent a clear showing of a miscarriage of justice. [Citations.]” (People v. Hill (1998) 17 Cal.4th 800, 844.) “Nevertheless, a series of trial errors, though independently harmless, may in some circumstances rise by accretion to the level of reversible and prejudicial error.” (Ibid.) We have determined that the errors that occurred were not individually prejudicial. Given their comparative insignificance, we also conclude that they were not collectively prejudicial.
VI. Sentencing Issues
A. Background
Appellant committed the charged offenses in April 2006. At that time, section 1170, subdivision (b), entitled him to a presumptive middle term of imprisonment. Appellant was convicted on December 10, 2008 and sentenced on December 17, 2008, nearly two years after the United States Supreme Court declared the California Determinate Sentencing Law (DSL) unconstitutional in Cunningham v. California (2007) 549 U.S. 270 (Cunningham)and more than a year after the California Supreme Court decided People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), which created a new sentencing scheme as part of a judicial remedy to cure the Cunningham error in the DSL. This remedy was consistent with Senate Bill No. 40 (stats. 2007, ch.3 (SB 40) § 1 (SB 40)), the new urgency legislation signed by the Governor as an emergency measure effective March 30, 2007.
Section 1170, subdivision (b), in effect at the time of appellant’s offenses, stated in part: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime....”
At the sentencing hearing, after reviewing the probation report, the trial court found that appellant had “numerous prior violent criminal acts; albeit, they all were misdemeanors.” The court imposed the high term of six years on count 1 because of appellant’s “violent past, ” and a consecutive term of one-third of the midterm or one year, on count 2. It also imposed the high term of six years on the great bodily injury enhancement. The defense objected that “no aggravating factors were found by the jury under federal and state grounds.”
B. Violation of federal due process and ex post facto proscription
Appellant contends that sentencing him under the judicially created remedy in Sandoval or SB 40 violated the ex post facto and due process clauses of the United States Constitution. We reject these contentions.
In Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi), the United States Supreme Court held that a defendant has a constitutional right to have the jury, not the trial judge, decide all facts, except for prior convictions, that increase the penalty for a crime beyond the prescribed statutory maximum. (See also Blakely v. Washington (2004)542 U.S. 296, 301 (Blakely); Cunningham, supra, 549 U.S. at pp. 288–289.) In Cunningham, the high court concluded that because California’s DSL “authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent.” (Cunningham, supra, at p. 293, fn. omitted.) The court found the middle term in California’s DSL, which was the presumptive term absent aggravating or mitigating factors, to be the relevant statutory maximum for the purpose of applying Apprendi and its progeny.
In response to Cunningham, the California Legislature passed SB 40, which amended section 1170 so as to eliminate the presumptive middle term in the triad of sentencing options available. Instead, section 1170 then provided that the trial court has discretion to select the upper, middle or lower term.
Section 1170, subdivision (b), as amended in 2007 provided: “When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court.... The court shall select the term which, in the court’s discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected....”
On July 19, 2007, the California Supreme Court rendered its decision in Sandoval. The Supreme Court stated that it was “arguable that the amendments to the DSL should be viewed as [changes in procedural law] and that they are, therefore, applicable to any sentencing proceedings conducted after the effective date of those amendments.” (Sandoval, supra, 41 Cal.4th at p. 845.) Nevertheless, it declined to decide that question, instead invoking its discretionary power to modify California’s procedural sentencing laws to conform to the procedures implemented by the Legislature in SB 40. (Sandoval, supra, at pp. 845–846.) In so doing, the Court concluded that application of the procedural terms of its judicially crafted resentencing procedures, which were precisely the same as SB 40’s amendment to the DSL, to crimes committed before its passage did not violate either the proscription against ex post facto laws or a defendant’s right to due process. (Sandoval, supra, at pp. 855–857.) The Supreme Court “conclude[d] that the federal Constitution does not prohibit the application of the revised sentencing process... to defendants whose crimes were committed prior to the date of our decision in the present case.” (Id. at p. 857.)
The ex post facto provision in the federal Constitution states that “No state shall... pass any... ex post facto law....” (U.S. Const., art. I, § 10, cl. 1.) A law violates the ex post facto clause only if it is retroactive-that is, if it applies to events occurring before its enactment-and if its application disadvantages the offender. A retroactive law does not violate the ex post facto clause if it “‘does not alter “substantial personal rights, ” but merely changes “modes of procedure which do not affect matters of substance.”’” (Sandoval, supra, 41 Cal.4th at p. 853.)
Because the upper term sentence is now the statutory maximum, factors which a trial court may rely upon in imposing the upper term need not be decided by a jury beyond a reasonable doubt because they do not increase the penalty beyond the statutory maximum. (See Sandoval, supra, 41 Cal.4th at pp. 843–844.)
We must conclude that the judicial remedy fashioned in Sandoval violates neither the ex post facto nor due process clauses of the federal Constitution. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we need not reach appellant’s contentions that SB 40 violates those clauses. For even if we concluded that the trial court sentenced appellant under SB 40 in violation of those constitutional provisions, and remanded for resentencing, the trial court would be authorized to impose the upper term based upon the revised sentencing scheme formulated in Sandoval. Nothing in the record suggests that a resentencing proceeding would result in a different sentence. We will not reverse for further proceedings when to do so would be “a useless and futile act and would be of no benefit to appellant.” (People v. Seldomridge (1984) 154 Cal.App.3d 362, 365.)
Given our conclusion that applying SB 40 and Sandoval to appellant’s sentencing is not unconstitutional, we need not consider the propriety of his sentence under the DSL after Cunningham and before SB 40 and Sandoval.
C. Insufficient evidence to support upper term on conviction
1. Contention
Appellant contends that to the extent the trial court had discretion to impose the upper term without a jury finding of the aggravating circumstance beyond a reasonable doubt, it abused that discretion by imposing an upper term based on an aggravating factor that was unsupported by the record. He argues that the sole factor on which the trial court relied in imposing the upper term was that appellant had “priors which are numerous and violent.” He claims the prior misdemeanors do not reflect “numerous prior violent criminal acts, ” because only the corporal injury conviction was arguably violent. There was no evidence that the two prior battery convictions or the prior burglary conviction were violent, as battery is merely an unconsented to touching and only a first degree burglary is violent, and the probation report fails to indicate whether the burglary was first degree. This contention is without merit.
2. The evidence
Before sentencing appellant, the trial court reviewed the probation report. It imposed the upper term on the child abuse conviction because appellant had numerous and violent priors. Appellant argues that there was no evidence that more than one of the prior convictions was violent so that the trial court’s finding was not supported by the evidence. We conclude there is sufficient evidence to support imposition of the upper term.
The probation report enumerated that appellant had been convicted of vandalism (§ 594, subd. (a)(1)) in 1992, burglary (§ 459) in 1992, unlawful sexual intercourse with a child (§ 261.5) in 1993, grand theft (§ 487, subd. (a)) in 1995, inflicting corporal injury on a spouse/cohabitant (§ 273.5, subd. (a)) in 1996, battery on a former spouse (§ 243, subd. (d)) in 1996, in a matter in which he was also charged with corporal injury on a spouse/cohabitant, battery (§ 273.5, subd. (a)) in 2001, and possession of drug alcohol in prison (§ 4573.6) in 2003. Additionally, the record reflects several probation violations.
The trial court’s finding included two components; that there were numerous prior offenses and that they were violent. California Rules of Court, rule 4.421(b)(2) states that a factor in aggravation is that the “defendant’s prior convictions... are numerous or of increasing seriousness.” (Italics added.) The probation report provides ample evidence that appellant’s prior offenses were numerous. As few as three prior convictions have been found to be numerous within this rule of court. (People v. Searle (1989) 213 Cal.App.3d 1091, 1098.) Appellant suffered more than three. “One factor alone may warrant imposition of the upper term [citation] and the trial court need not state reasons for minimizing or disregarding circumstances in mitigation [citation].” (People v. Lamb (1988) 206 Cal.App.3d 397, 401.) Thus, the upper term was justified by the trial court’s finding that appellant’s prior convictions were numerous, irrespective of whether they were violent. The factors in aggravation or in mitigation are to be established by a preponderance of the evidence. (People v. Steele (2000) 83 Cal.App.4th 212, 225.)
We further agree with respondent that the trial court was entitled to infer that the battery convictions were violent. It is a reasonable inference that a battery that is charged and prosecuted is not a mere offensive and nonviolent touching. It is far more likely to have involved violence. This inference is supported by the fact that appellant’s 1996 conviction of battery on a former spouse was accompanied by a charge of injury on a spouse.
D. Upper term sentence on great bodily injury enhancement
Appellant contends that regardless of whether SB 40 applies to substantive crimes that occurred before its enactment, it was inapplicable to the great bodily injury enhancement in section 12022.7, subdivision (d).
As discussed in part VIB, ante, the California Legislature passed SB 40, in response to Cunningham, amending section 1170 so as to eliminate the presumptive middle term in the triad of sentencing options available. But this urgency legislation failed to amend section 1170.1, subdivision (d), which applies to sentencing on enhancements, and our California Supreme Court did not reform it in Sandoval. Section 1170.1 established the same middle term presumption for enhancements that former section 1170, subdivision (b) did for criminal offenses. It therefore suffered from the identical constitutional infirmities identified by the United States Supreme Court in Cunningham and was similarly unconstitutional. (People v. Lincoln (2007) 157 Cal.App.4th 196, 205.) As a result, effective January 1, 2010, the Legislature amended section 1170.1 to comply with the Sixth Amendment.
Section 1170.1, subdivision (d), before its amendment effective January 1, 2010, provided: “If an enhancement is punishable by one of three terms, the court shall impose the middle term unless there are circumstances in aggravation or mitigation....”
Section 1170.1, subdivision (b), effective January 1, 2010, provides: “If an enhancement is punishable by one of three terms, the court shall, in its discretion, impose the term that best serves the interest of justice, and state the reasons for its sentence choice on the record at the time of sentencing.”
Even under Cunningham, the trial court did not err in making the finding on which it based an upper term sentence on the great bodily injury enhancement. In People v. Black (2007) 41 Cal.4th 799 (Black), the California Supreme Court reasoned that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Black, supra, at p. 812.) “[I]f one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum.’” (Id. at p. 813.)
Here, the trial court based its decision to impose an upper term on the great bodily injury enhancement on the fact that appellant was convicted of multiple offenses that involved violence. This finding is within the prior conviction exception to the Apprendi-Cunningham line of cases. Appellant’s lengthy criminal record going back 16 years before his sentencing in this matter justified imposing the upper term. The use of prior convictions in increasing a defendant’s sentence is an exception to the rule laid down in Apprendi and its progeny. (Blakely, supra, 542 U.S. at p. 301 [“‘Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt’” (italics added)].) The United States Supreme Court has consistently stated that the right to a jury trial does not apply to the fact of a prior conviction. (Black, supra, 41 Cal.4th at p. 818.) This exception is not to be read too narrowly. (Id.at p. 819.) The fact of a prior conviction includes “other related issues that may be determined by examining the records of the prior convictions.” (Ibid.) It has also been concluded that this exception relates more broadly to the issue of “‘recidivism.’” (People v. Thomas (2001) 91 Cal.App.4th 212, 221–222, cited with approval in People v. McGee (2006) 38 Cal.4th 682, 700–703.) Consequently, even under Apprendi and its progeny, the trial court’s finding was permissible as within the prior conviction exception and justified imposition of the upper term on the great bodily injury enhancement.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.