Opinion
B204511.
1-29-2009
THE PEOPLE, Plaintiff and Respondent, v. FRANK FIDEL BELTRAN, Defendant and Appellant.
Doris M. Frizzell, 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, Senior Assistant Attorney General, Jason C. Tran and Dana M. Ali, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published in the Official Reports
This appeal arises out of two shooting incidents. In the first, on February 10, 2006, defendant Frank Fidel Beltran shot Glendora Police Officer Casey OGorman after committing armed assaults and falsely imprisoning his wife, Anjelique Beltran, along with Sara Calleros and Jonathan Murray. The second incident took place on March 3, 2006, when defendant repeatedly shot his wife after pursuing her in a dangerous high speed chase. The jury found defendant guilty in counts 1 and 3 of the attempted willful, deliberate, and premeditated murders of Officer OGorman and Anjelique (Pen. Code, §§ 664, 187, subd. (a)), and finding defendant personally and intentionally discharged a firearm to cause great bodily injury to both victims (§§ 12022.53, subds. (b)-(d)). The jury also found defendant guilty of first degree burglary in count 5 (§ 459) with a true finding as to the personal use of a firearm (§ 12022.53, subds. (b), (c)), assault with a firearm as to Anjelique, Calleros, and Murray in counts 7 to 9 (§ 245, subd. (a)(2)), false imprisonment by violence against the same victims in counts 10 to 12 (§ 236) with a true finding that defendant personally used a semiautomatic firearm (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)), and assault on a peace officer with semiautomatic firearm in count 13 (§ 245, subd. (d)(2)) with true findings on the firearm allegations (§ 12022.53, subds. (b), (c)).
Because two victims share defendants surname, we shall refer to his daughter and wife by their first names.
Count 2, alleging a second attempted murder of Officer OGorman, and count 4, alleging a second attempted murder of Anjelique, were dismissed at the prosecutions request, as was count 14, which alleged a second armed assault against the officer. All further statutory references are to the Penal Code unless otherwise indicated.
Defendant was sentenced to a determinate term of 21 years, which included the upper term of three years for Anjeliques false imprisonment plus the upper term of 10 years for the firearm enhancement, consecutive to an indeterminate term of 65 years to life for the attempted murder convictions and a firearm enhancement. Imposition of sentences on the burglary and assault convictions was stayed under section 654.
In his timely appeal, defendant contends (1) the trial court committed misconduct and violated his federal constitutional rights to a fair trial and to confront adverse witnesses when the court, in the process of rebuking defendant for repeatedly disrupting proceedings, drew the jurys attention to defendants nontestimonial conduct; (2) as to the attempted murder of Officer OGorman, there was constitutionally insufficient evidence to support the special findings that defendant knew or should have known he was a police officer and that the murder was premeditated; (3) there was constitutionally insufficient evidence to support the conviction for assaulting Anjelique with a firearm; (4) the trial court abused its discretion in awarding restitution for Anjeliques victim relocation expenses; (5) the trial court violated his Sixth Amendment jury trial right by imposing the upper term sentences without a jury finding on the aggravating factors pursuant to Cunningham v. California (2007) 549 U.S. 270 (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 (Blakely); and (6) the abstract of judgment must be corrected to eliminate reference to a five-year prior conviction enhancement that was neither alleged nor proved.
We modify the abstracts of judgment as requested, and affirm the judgment in all other respects.
STATEMENT OF FACTS
I. Prosecution
A. The February 10 Incident
In late 2005 and early 2006, Anjelique lived with defendant (her husband of 10 years) and their seven-year-old daughter L. in defendants family home in La Verne. Defendant was arrested on an unrelated matter and taken into custody on January 8, 2006. Anjelique and her daughter moved out shortly afterwards, staying in a succession of motels. Defendant was released on February 2, 2006. Two days later, he and Anjelique began to argue while they were in a parked car with L. Defendant became upset, pulled out a knife, and stabbed Anjeliques hand as she tried to defend herself. Defendant apologized and cut his own chest before taking her to the hospital.
Anjelique decided to take L. and move away from defendant. She tried to keep their whereabouts secret from him. On February 10, 2006, she went to Murrays home with L. and Calleros. Later that day, she drove her white Mustang to an alley in Pomona where she had arranged to meet an acquaintance who would give her some money. Defendant, however, was there with the acquaintance. He pistol whipped Anjelique in the head and ordered her into the back of the Mustang. He demanded that she direct him to L., which she did. When they arrived at the Murray residence, L. was in the living room eating a snack. Two other men came inside and defendant had them drive L. away. When L. had been removed, defendant handcuffed Anjelique, Murray, and Calleros. While defendant threatened Murray and Calleros with a gun, Anjelique went to the kitchen and dialed 9-1-1 on a cordless telephone. To avoid being seen by defendant, she walked over to the bathroom, dropped the phone, and kicked it away from her. Louie Acosta was hiding in the bathroom; she told him to stay there. Anjelique heard defendant say, "I think the cops are here." Defendant told Murray to get a saw to cut off the handcuffs. As defendant led the others to the backyard, Anjelique ran out the front door and across the street, where she hid in a bush.
While in Murrays bedroom, Louie Acosta separately called the 9-1-1 operator. Acosta was on probation for possession of methamphetamine at the time of trial, but he was not using it on the day of the shooting.
Calleros testified that she, Anjelique, and L. visited Murrays residence on the afternoon of February 10, 2006. Anjelique left the home for approximately 90 minutes in the company of others. It was dark outside when she returned. Calleros saw Anjeliques car stop and park. Anjelique entered the residence with defendant, who had a gun in his gloved hand. Two men also entered the residence. Defendant told them to take L. away. Defendant ordered Calleros and Murray to lie prostrate and look at the floor. Calleros recalled that defendant tied up Murray and handcuffed Calleross hands behind her. He also handcuffed Anjelique. Defendant tapped Callero on the side of her head with his gun as he deliberated aloud whom he would kill. At one point, he threatened Calleros with a knife and told her that he would be doing her a favor by killing her, telling her to "make [her] peace with God." Defendant told Murray that he would be found "in a puddle of blood." Defendant demanded Calleros identify the person Anjelique "was sleeping with." When she named "Danny," defendant appeared to relent and said he would uncuff her—but he could not find the key. Defendant untied Murray, who went to the garage for a "grinder," which he used to remove the handcuffs.
Calleros did not identify defendant in court. She referred to him as Anjeliques husband, based on what Anjelique told her after the incident. Calleros identified defendants photograph as being the gunman when previously shown a photographic lineup.
Anthony Rivas testified that he had known defendant for approximately two years. In the late afternoon of February 10, 2006, defendant called Rivas and asked for a ride. Conversing on their cell phones, defendant directed Rivas to his location. Defendant approached Rivas and asked him to take his daughter L. to defendants mothers house in La Verne because defendant and Anjelique "were arguing a little bit." Defendant went inside the residence and returned with L. Rivas was familiar with defendants family and their La Verne residence and drove L. to that location, where Rivas dropped off L. with defendants brother-in-law.
Defendant said he saw a police patrol car at the corner of the street. As the police approached the front door, defendant ordered Calleros to leave with him through the back of the residence. Anjelique, however, ran to the front and opened the door for the police. Calleros ran through the backyard. Calleros heard two or three gunshots fired in a short space of time. After that, defendant jumped out of a window into the backyard, ran past Calleros—telling her that he knew where she lived—and jumped over the backyard wall. Calleros went back inside the residence. She saw some bullet cases on the living room floor near the front window.
On cross-examination, Calleros admitted that she, Anjelique, and Murray were using methamphetamine in the residence before defendant arrived; Murray and Acosta denied it. According to Calleros, Anjelique was a regular user. Anjelique had been living with Calleros in West Covina, but approximately a week before the shooting incident, Anjelique told her defendant was being released from custody and she was "going to go back home with him."
Murray recalled that on the afternoon of the shooting, he was in his family home with Acosta when Calleros arrived with Anjelique and her daughter. Anjelique left for a few hours and returned with defendant. Defendant ordered him to lie face-down on the floor. Defendant handcuffed Anjelique and Calleros. Defendant threatened to shoot Murray unless he complied with his orders. Defendant used the phrase, "enee menee minee moe" as he tried to decide whether to kill Calleros or Murray first.
Officer OGorman was wearing his full police uniform and on duty when he received a radio call and responded to the Murray residence in response to a 9-1-1 emergency call. He arrived within five minutes, parked his patrol car up the street, and walked toward the residence. It was nighttime and the officer carried a flashlight in his right hand. Within a few minutes, Officer Shiloh Cantanese arrived. The two met one house south of the Murray residence, which was quiet and dark inside. As Officer OGorman approached the front door, it burst open and Anjelique ran out and toward Officer Cantanese. Anjelique appeared to be terrified. Officer OGorman drew his service revolver in his left hand. He took two steps toward the front door with his lighted flashlight pointed forward just below his revolver.
It was stipulated that Officer OGorman was a peace officer for purposes of the special allegations under sections 664, subdivision (e), and 245, subdivision (d)(2).
Defendant emerged from the front door, firing a handgun. Officer OGorman was in the process of lifting his handgun to the "high ready position," when defendants first shot struck the officer in his right hand from a distance of approximately eight feet. At that time, the officers weapon was held at chest height. The bullet passed through his palm, knocking the flashlight out of his hand. As Officer OGorman backed up and looked for cover, defendant retreated into the residence and fired a second shot through a window. The shot whizzed past the officers shoulder. He dove behind a nearby car and fired back into the residence window. The officers injury prevented him from holding the firearm properly, causing it to jam. He ducked down behind the car again and tried to eject the casing that was lodged in the weapons slide. Unable to do so, he ran for cover toward a van parked in the next door driveway. Unbeknownst to him, however, Officer Cantanese, was behind that vehicle. She mistook him for defendant and fired at him—but missed. As they heard gunshots and slamming doors, the two officers climbed a fence into a neighbors backyard and ran up the street toward the police units that were responding to the scene. The officer received medical treatment and underwent physical therapy for the gunshot wound, but as of the time of trial he had not fully recovered the use of his thumb.
Officer OGorman did not get a clear view of his assailants face and was not able to identify defendant.
Officer Cantanese, who was also in full uniform at the time of the shooting incident, corroborated the testimony of Officer OGorman.
Phillip Scheurich lived close to the Murray residence. At approximately 11:00 p.m. on February 10, he went outside to smoke a cigarette when he saw a police helicopter circling a few blocks away and shining a spotlight. Within ten minutes, Scheurich saw a male run past him and jump over a residence wall. He called the 9-1-1 operator to report the incident. An audiotape of that conversation was played to the jury. He made a tentative identification of defendant from a photographic lineup.
In the early morning hours of February 11, Carleen Nicholson heard a knock on her door. It was defendant and his daughter. Defendant told her that he had retrieved his daughter, but it "was bad." She invited them in and went back to sleep. Defendant and his daughter were sleeping on her sofa when she awoke. By 8:30 a.m., defendant was awake. He appeared distraught. A news report on television named defendant as the suspect in the shooting of a police officer. At Nicholsons urging, defendant agreed to go with her to the nearby police station after breakfast. She fed defendant and his daughter breakfast, but while she was in the kitchen cleaning up the dishes, defendant left. Nicholson reported the matter to the police.
A few days after the shooting incident, while playing with his dog in the backyard, Murrays brother found the keys to Anjeliques Mustang in the neighbors backyard. The Mustang was still parked in front of the house. Within a few weeks after the shooting incident, Murray discovered bullets inside a peanut butter jar in his kitchen pantry.
Glendora Police Officer Daniel Antillon took part in the investigation. He arrived at approximately 4:45 a.m. to collect evidence from the shooting scene. Having been told Officer OGorman had fired a round into the Murray residence in the direction of the shooter, Officer Antillon found a .40 caliber round (consistent with all Glendora Police Officer duty guns) in the interior wall of the residence. A .45 caliber semiautomatic handgun was found dangling from a string outside a bedroom window. The magazine was empty, but there was a live round in the chamber. Shell casings were found on the front lawn, front porch, and on the threshold of the front door, along with two live bullets just inside the front door and one just outside. A firearms expert examined the .45 caliber semiautomatic handgun found at the residence. The experts analysis established that the casings found in and around the Murray residence had been fired from that handgun. The expert also found the gun tended to misfire intermittently, causing it to jam. A common way to remedy that malfunction would be to eject the chambered round, which would explain the presence of live bullets found in and around the home.
It was stipulated that a 14-year-old boy who had been in his backyard close to the Murray residence, in the early evening of May 8, 2006, found two ammunition magazines filled with . 45 caliber rounds, next to two of defendants business cards, in an area behind a cement block.
B. The March 3 Incident
On March 3, 2006, Anjelique drove her Mustang to a shopping center and parked. As she was getting out of her car, she saw defendant parked in a brown car. She immediately reentered her car and drove away down Lone Hill Avenue toward Arrow Highway, with defendant speeding after her in the brown car and shooting at her. She was extremely frightened. Bullets struck her back and arm and she lost consciousness. When she regained consciousness, Anjelique heard defendant say, "I love you, Anjelique," before driving away. She received medical treatment, but some of the injuries were inoperable and resulted in lasting harm. Bullets remain in her arms, back, and head. She could not move her left arm and thumb.
At approximately noon on March 3, 2006, Deputy Sheriff Jesus Valenzuela was driving to work. It was raining as he pulled into the left turn lane on Lone Hill Avenue at the intersection of Arrow Highway in San Dimas. He saw Anjeliques Mustang run the red light and crash into the curb on Arrow Highway. Within seconds, a brown Chevrolet drove through the red light and stopped next to the Mustang. The deputy heard a gunshot, and the Mustang backed up and drove southbound on Lone Hill, chased by he Chevrolet. Anjeliques vehicle braked and swerved erratically as she circled back to the intersection, before crashing into the center median on Arrow Highway. As the Chevrolet pulled alongside the Mustangs driver side, Deputy Valenzuela heard approximately 15 gunshots being fired before the Hispanic male in the Chevrolet drove away. The deputy attempted to follow in his own vehicle, but lost sight of the Chevrolet. As he passed the Mustang, he saw Anjelique sprawled across the passenger seat.
Pamela Cavanaugh was stopped at the same intersection. She too saw Anjeliques Mustang being chased through the red light. Cavanaugh heard approximately four gunshots being fired as the Mustang tried to turn around and get away from the pursuing Chevrolet. It circled back around the intersection twice, before the Mustang spun out of control and crashed into the center median. Cavanaugh saw the Chevrolet stop next to it. The male driver put his arm through the Chevrolets window and fired more than 17 shots at the driver of the Mustang from a distance of less than five feet, before driving away. Cavanaugh ran over to Anjelique, who was slumped over the center console. The side of the Mustang was riddled with bullet holes and Anjelique was bleeding and whispering, "please help me."
Two expended cases were found inside the Chevrolet. Both were . 45 caliber; both fired from the same weapon that fired all rounds found at the March 3 shooting scene. There were 14 bullet impacts on the Mustang, all but one having been fired in the same direction—toward the driver side and moving across to the passenger side.
Sheriffs Deputy Timothy Ruggiero responded to the scene in his patrol car. He approached the white Mustang and saw Anjelique slumped over in her seat, ashen and bleeding from her neck and shoulder—apparently dead. However, after repeated efforts to revive her, she became responsive. The deputy asked who shot her and she repeated that it was her husband, "Frank Beltran."
With regard to the vehicle defendant drove on March 3, the prosecution presented evidence that on the morning of February 27, 2006, Wilbur Gatson started up his 2002 light brown Chevrolet Cavalier, which was parked in front of his Pomona residence, and left it running while he went inside to get a jacket. When he returned, the car was gone. He reported it stolen. When it was returned by the Sheriffs Department some months later, it had been wrecked—the front end having sustained damage. Robert Cadena testified that in February 2006, he was informed his Chevrolet Cavalier might have been used in the commission of a crime. When he checked the cars license plates, however, he discovered they had been taken and replaced with different ones. A few nights before, when the car was parked in his driveway, his dog had been heard barking loudly at approximately 11:00 p.m.
II. Defense
Defendant testified that on February 2, 2006, after he was released from custody, he spent the night in a motel with Anjelique and L. Two days later, he accidently cut Anjelique with his knife. They argued heatedly while he was driving. When Anjelique struck his head with a knife, he grabbed it away and cut her in the process. On February 8, Anjelique took L. and left defendant. Unable to find her, he filed a missing persons report on February 10. Using the information on his mobile phone billing statement, he called various numbers trying to track her down. A woman called back and told him that he needed to take his daughter away from Anjelique because she was "getting high in front of [L.]" He and the woman agreed to arrange a meeting at a location in Pomona within walking distance from defendant, who had no car. He saw Anjelique park and approached her and the woman. Anjelique fainted when she saw him. Defendant shook her awake and angrily confronted her about "smoking dope" in front of their daughter.
Anjelique agreed to drive him to the house where L. was staying. As defendant moved a purse off the passenger seat, he saw drugs, baggies, and a scale fall out. She denied they belonged to her. Defendant called Rivas and asked him to meet them to take L. to the home of defendants mother. While Anjelique drove him to the Murray residence, defendant relayed the directions to Rivas by cell phone. She parked in front of the house and led him inside. Rivas drove up. Defendant, who was not armed, went outside and pleaded with Rivas to take L. to her grandmothers home. He went back inside, brought L. out, and put her in Rivass car.
Anjelique appeared very intoxicated—"she was tweaking out of her mind, she couldnt make one intelligible sentence." At no time did he pull a gun on anyone. Nor did he handcuff anyone. After a short respite, defendant and Anjelique engaged in another "very heated" argument. Hearing someone say, "the cops are outside," defendant ran away, out through the backyard, to the next street over. Having just recently been released from jail, he did not want to risk being charged with a domestic violence offense. Defendant stood on the street and called his mother to see if L. had arrived. While on his cellular phone, he heard gunshots from the direction of the Murray residence. As defendant went back to the residence, a male he did not recognize (dressed, as defendant was, in a black hooded sweatshirt) fired two gunshots in quick succession toward him. Defendant fled through a backyard, through a field, and hid in a drain pipe. He did not hide any .45 caliber magazines or business cards in the backyard where they were later found.
Inside the residence, investigating officers found handcuff links that appeared to have been "grinded off." A "grinder" power tool was found on the kitchen counter. Calleros was handcuffed when the officers arrived.
Defendant emerged from the drain pipe and arranged to have L. dropped off to him at a hamburger place. It was close to midnight. Defendant paid a young couple to drive them to Nicholsons house, where he and L. slept that night. The following morning, when he heard the television report that he was wanted by the police for shooting a police officer, defendant became very nervous and broke down in tears, even though it was not true. He left Nicholsons house and took a bus to Los Angeles.
Defendant had nothing to do with the March 3, 2006 shooting incident on Arrow Highway. He had a friend called "Biggie" who drove a large black sports utility vehicle, just like the one Anjelique had testified she saw in the parking lot before the shooting incident took place.
DISCUSSION
I. The Trial Courts Comments on Defendants Nontestimonial Conduct
Defendant contends the trial court committed misconduct and violated his federal constitutional rights to a fair trial and to confront adverse witnesses when it drew the jurys attention to defendants nontestimonial conduct—specifically, defendants failure to abide by the promise he made outside the jurys presence not to disrupt the proceedings by speaking out of turn. As we explain, defendant forfeited the claim by failing to object below. It also fails on the merits because the challenged statements did not amount to evidence, but were a reasonable, measured response to defendants own misconduct.
A. Proceedings Below
Immediately after defendants testimony was completed, the trial court informed the jurors that it would conduct a short conference with counsel outside their presence. Before the jury was released, defendant spoke out to "ask for a mistrial due to prosecutorial misconduct . . . and judicial misconduct." The prosecutor objected and urged defendant not to speak. In the jurys presence, the court and defendant engaged in the following colloquy:
"THE COURT: Okay, well deal with your motion.
"THE DEFENDANT: My rights have been violated since Ive been in this court.
"THE COURT: All right. Well, let the jury go out, if you dont mind.
"THE DEFENDANT: And the judge has been denying all my motions for defense.
"THE COURT: I assume thats for the jurys benefit.
"THE DEFENDANT: Thank you."
After the jury left the courtroom, the trial court invited defendant to make a statement. Defendant reiterated his claims of prosecutorial and judicial misconduct, and asked the court to grant a mistrial. He also asserted that he had a "conflict of interest" with his counsel. The court denied the mistrial motion and rejected defendants subsequent argument that another judicial officer must hear the motion. With some prompting from counsel, defendant said he was attempting to make a Marsden motion. When the court asked him the basis for any conflict with defense counsel, defendant responded in a vague and ambiguous manner. The court found that defendant had "attempt[ed] to disrupt this trial in the presence of the jury with a big grin on [defendants] face." Defendant denied it, but the court insisted defendant had made the same facial expression to the jury that he was currently making to the court. It also found that defendant had been shouting when the jurors were trying to leave the jury box. The court stated that defendant "knew that was improper," but decided he "would do it [his] own way."
People v. Marsden (1970) 2 Cal.3d 118.
The conference continued outside the jurys presence, as the trial court discussed procedural matters with counsel. But when defendant interjected again, the court warned defendant that if he made further efforts to disrupt the trial in the jurys presence, "the balance of the case will be conducted in [defendants] absence." It added: "So Im asking you as politely as I know how, to remain silent when the jury comes into the room. [¶] Do you understand me?" Defendant said he understood and promised to comply with that direction. After conducting a Marsden hearing, the trial resumed.
The trial court addressed the jury: "Ladies and gentlemen, Id like you to do the court a service, if you would. As the jury began leaving the room, [defendant] began shouting some complaints that he had about his treatment and his constitutional rights, and thus and such. I want you to disregard his comments. They were not in response to any questioning; they were simply his complaint and you are to disregard them." An evidentiary matter was addressed and the defense rested its case. The court told the jury that trial would recommence the following morning with jury instructions and argument.
However, when the trial court directed a scheduling question to the clerk, defendant commented on the existence of an evidentiary stipulation. The court made the following statements to defendant, which form the basis for defendants constitutional claims: "Why dont you do what I asked you, [defendant], immediately before the jury came in, which is please not disrupt the proceedings and please remain silent, let your attorney speak. [¶] I asked you and you promised me you would. Would you please keep your promise?" The record reflects that defendant responded "in Latin." The court commented that as much as it "appreciat[ed] the Latin lesson," it expected defendant to refrain from speaking. It again cautioned the jury to disregard defendants comments, adding that defendant had promised not speak out of turn, but defendant "apparently intends to do that from time to time." The court told the jury that defendant had been warned that he risked being excluded from the courtroom if he persisted—and it repeated that warning to defendant before dismissing the jury for the evening.
B. Analysis
Defendant seeks to ground his constitutional claims on the evidentiary rule that "[o]rdinarily, a defendants nontestimonial conduct in the courtroom does not fall within the definition of `relevant evidence as that which `tends logically, naturally, [or] by reasonable inference to prove or disprove a material issue at trial." (People v. Garcia (1984) 160 Cal.App.3d 82, 91, fn. omitted, quoting People v. Jones (1954) 42 Cal.2d 219, 222.) At the outset, we note Garcias conclusion "that the nontestimonial behavior of a defendant while in the courtroom cannot be judicially endorsed as evidence of his guilt" was not grounded on constitutional law. (See People v. Garcia, supra, at p. 91.) To the extent we can discern any constitutional dimension to defendants claims, it would derive from the general due process principle "that one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial." (Taylor v. Kentucky (1978) 436 U.S. 478, 485; see Estelle v. Williams (1976) 425 U.S. 501, 503; People v. Mayo (2006) 140 Cal.App.4th 535, 543.) Our Supreme Court has set forth the limited scope of such due process review: "[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439, citing Estelle v. McGuire (1991) 502 U.S. 62, 70; Spencer v. Texas (1967) 385 U.S. 554, 563-564; People v. Falsetta (1999) 21 Cal.4th 903, 913.)
Defendant also attempts to raise this claim under the rubric of judicial misconduct, asserting the trial courts statements to the effect that defendant had broken a promise "gratuitously injected" prejudicial information into the trial. Whether styled a due process violation or judicial misconduct, however, the claim was not preserved for appellate review. Despite ample opportunity at trial, defendant interposed no objection to the statements he seeks to challenge on appeal. Accordingly, the limited exception for due process review based on a timely objection under Evidence Code section 352 does not apply (see People v. Partida, supra, 37 Cal.4th at p. 435), and his claim is waived. (People v. Samuels (2005) 36 Cal.4th 96, 114 ["Failure to raise the issue of judicial conduct at trial waives claims of statutory or constitutional error"]; People v. Burgener (2003) 29 Cal.4th 833, 869 [a claim based on a purported violation of the confrontation clause must be timely asserted at trial or it is waived on appeal].)
As in People v. Riel (2000) 22 Cal.4th 1153, 1212, defendant attempts to avoid forfeiture by relying on the futility exception delineated in People v. Hill (1998) 17 Cal.4th 800. "Hill, however, was an extreme case," involving a "prosecutors `continual misconduct, coupled with the trial courts failure to rein in her excesses . . ." that culminated in a "`poisonous" trial atmosphere. (People v. Riel, supra, at p. 1212, citing People v. Hill, supra, at p. 821.) Nothing remotely similar occurred in defendants trial. The trial courts statements were accurate and characterized by moderation and restraint. At no time did the court intimate any reluctance to entertain objections or to discuss them at sidebar. Like in Riel, "[t]he normal rule requiring an objection applies here, not the unusual one applied to the extreme circumstances of People v. Hill, supra, 17 Cal.4th 800. This issue is, accordingly, not cognizable." (People v. Riel, supra, 22 Cal.4th at p. 1213.)
Turning to the merits, we find neither judicial misconduct nor an improper reliance on nontestimonial conduct. "A court commits misconduct if it persistently makes discourteous and disparaging remarks so as to discredit the defense or create the impression it is allying itself with the prosecution." (People v. Santana (2000) 80 Cal.App.4th 1194, 1206-1207; People v. Harbolt (1988) 206 Cal.App.3d 140, 158.) Nothing in the record suggests misconduct. To the contrary, "the court merely exercised its inherent power to control and order the proceedings." (People v. Arias (1996) 13 Cal.4th 92, 147.) As our summary of the relevant trial proceedings makes clear, it was defendants persistent disruptive behavior—after the trial courts unambiguous warnings—that invited the trial courts measured response.
Our Supreme Court has explained that public policy precludes consideration of such self-orchestrated appellate claims. "Evidence obtained by jurors from sources other than in court is misconduct and constitutes grounds for a new trial if the defendant has been prejudiced thereby. (Pen. Code, § 1181, subd. 2.) It is not clear, however, that such a rule applies to the jurors perceptions of the defendant, particularly when the defendant engages in disruptive or otherwise improper conduct in court. As a matter of policy, a defendant is not permitted to profit from his own misconduct." (People v. Williams (1988) 44 Cal.3d 1127, 1156.)
Moreover, this was not a case in which nontestimonial evidence was admitted against defendant or where the prosecution urged consideration of a defendants non-testimonial behavior. As the record demonstrates, the trial court repeatedly and unambiguously instructed the jury to disregard defendants outbursts. In addition, the court instructed the jury that its verdicts must be based solely on evidence, which it defined so as to exclude defendants nontestimonial statements. It also instructed the jury not to take its cue from the judge, which would have dispelled any potential prejudice from what defendant mischaracterizes as judicial misconduct. (People v. Harbolt, supra, 206 Cal.App.3d at p. 158.) Finally, in light of the overwhelming nature of the evidence against defendant and the dubious nature of his own testimony, we find the supposed error harmless beyond a reasonable doubt under Chapman v. California (1967) 386 U.S. 18, 24.
II. Sufficiency of Evidence Claims Regarding the Attempted Murder and Armed Assault of a Police Officer
As to his convictions for assault with a firearm and the attempted murder of Officer OGorman, defendant contends there was constitutionally insufficient evidence to support the special finding that defendant knew or should have known his victim was a police officer. He also argues lack of substantial evidence to support the finding that the attempted murder was premeditated. Both claims fail because, contrary to well accepted standards of appellate review, defendant urges us to reweigh evidence that supports reasonable inferences of his culpable knowledge and premeditation.
"In assessing a claim of insufficiency of evidence, the reviewing courts task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—that is, 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. (People v. Johnson (1980) 26 Cal.3d 557, 578.) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320.) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792.)" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.)
Viewed in the prosecutions favor, the evidence provided ample solid and credible evidence to support the reasonable inference that defendant knew or should have known Officer OGorman was a police officer engaged in his official duties at the time defendant shot at him. (See §§ 664, subd. (e), 245, subd. (d)(2); see In re Cline (1967) 255 Cal.App.2d 115, 123 [aggravated assault "requires the defendants reasonable awareness of his victims identity as a peace officer engaged in the performance of his duties"].)
Just before the shooting incident, Anjelique and Calleros heard defendant announce the police had arrived. In response, defendant turned off the residences interior lights and ordered his victims to leave through the back. Those actions made sense only if he believed investigating officers were out front. When Anjelique disobeyed him and ran out the front door, defendant followed her. Officer OGorman, dressed in a full police uniform, approached the front door as Anjelique ran out and across the street, away from the officer. The officer drew his service revolver in his left hand and held it in front of him at chest height, pointing toward the front door, with his lighted flashlight held in his right hand just below his revolver. Defendant came out of the door and fired from a distance of approximately eight feet, striking the officers hand.
Defendant admitted he had been informed that the police were approaching the residence.
Given this record, it cannot seriously be doubted that defendant must have known that Officer Gorman was a police officer at the relevant time. Defendant believed a police officer was approaching the house, took steps to conceal himself, and attempted to flee, and then fired directly at the officer from close range under circumstances in which the only reasonable inference was that his target was an officer conducting a criminal investigation. Defendant nevertheless points to testimony as to the lack of direct illumination in front of the house at the time of the shooting. While it is true that Officer OGorman did not announce himself as a peace officer and both officers testified it was dark outside, that hardly negates a reasonable inference as to defendants ability to see the uniformed officer, much less his culpable knowledge based on the circumstances. Defendant fails to show it would have been impossible for defendant to see his victims uniform—there was ambient light from the nearby garage and a streetlight, as well as from the officers flashlight. Moreover, as stated above, from defendants stated knowledge that the police had arrived and from the way in which Officer OGorman conducted himself, evidence of a precise visual identification was hardly necessary.
Defendants appellate assertion that the officers flashlight would have been shining in the assailants face and prevented him from seeing is pure speculation.
The evidence of premeditation was at least as strong. There are three common categories of evidence bearing on the existence of the premeditation and deliberation element of first degree murder—planning activity, motive, and the manner of killing. (People v. Perez (1992) 2 Cal.4th 1117, 1125; People v. Anderson (1968) 70 Cal.2d 15, 25-27.) These "factors, while helpful for purposes of review, are not a sine qua non to finding first degree premeditated murder, nor are they exclusive." (People v. Perez, supra, at p. 1125.) In assessing the sufficiency of the evidence as to the element of premeditation and deliberation, "`[t]he true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly, but the express requirement for a concurrence of deliberation and premeditation excludes . . . those homicides . . . which are the result of mere unconsidered or rash impulse hastily executed. [Citations.]" (People v. Velasquez (1980) 26 Cal.3d 425, 435, vacated and remanded on other grounds in California v. Velasquez (1980) 448 U.S. 903.)
In addition to the facts recited above, which showed defendant shot at Officer OGorman with the knowledge that he was a peace officer engaged in the investigation of criminal activity, we add the following: After shooting the officer, defendant ran back inside the residence and continued to fire shots in the officers direction. Forensic evidence corroborated the officers account of the events and indicated that defendant continued to fire at the officer even after defendants firearm jammed, causing him to eject the unspent round before firing again. Finally, after shooting at the officer, defendant attempted to hide his weapon and ammunition, and successfully fled the scene.
There can be no serious doubt as to the adequacy of the prosecutions case for premeditation. Defendant had ample time to reflect both before he fired the shot that hit the officer, as well as after he took cover and fired again. He had an obvious motive to kill the officer—avoidance of detection for the numerous crimes he had committed that evening. Finally, the manner of the shootings—a direct shot from close range and another from a place of cover—tend to refute defendants contention that the shooting was an "unthinking reaction" to seeing his victim outside the front door. (See People v. Manriquez (2005) 37 Cal.4th 547, 577 [ample evidence supported the inference that the killing resulted from a preexisting reflection, rather than an unconsidered or rash impulse, where the victim was shot repeatedly several minutes after a verbal altercation with defendant]; People v. Morris (1988) 46 Cal.3d 1, 22-23 [the defendants possession of a loaded gun in advance of the killing, and rapid getaway, are evidence of planning activity]; People v. Pride, supra, 3 Cal.4th at p. 247 [circumstances and manner of killing supported two plausible motives for murder].)
In sum, the evidence of premeditation was more than sufficient under the constitutional standards set forth in People v. Johnson, supra, 26 Cal.3d at page 578 and Jackson v. Virginia, supra, 443 U.S. at pages 317-320.
III. Sufficiency of Evidence Claim as to Armed Assault of Anjelique
Defendant implicitly acknowledges there was sufficient evidence to support his conviction for assault with a firearm on Anjelique based on the incident in a Pomona alley where he pistol-whipped Anjelique in the head and ordered her to drive him to the Murray residence. He argues, however, the prosecution elected not to rely on that evidence, but to proceed solely on the events in the Murray residence. The evidence concerning the subsequent event does not support his armed assault conviction, defendant asserts, because there was no testimony that defendant pointed the gun at Anjelique or ordered her to lie on the ground, as he did to Calleros and Murray. As we explain, there was no election, but even if there were, there was solid, credible, and reasonable evidence arising out of defendants actions within the Murray residence.
"An assault is an attempt to commit a battery. [Citation.] Assault with a deadly weapon is termed a `general intent crime because it is not necessary to find a specific intent to cause a particular injury. What is required, however, is the general intent to willfully commit a battery, an act which has the direct, natural and probable consequences, if successfully completed, of causing injury to another. [Citations.] Intent to frighten or mere reckless conduct is insufficient. [Citation.]" (People v. Brown (1989) 212 Cal.App.3d 1409, 1419, disapproved on another ground in People v. Hayes (1990) 52 Cal.3d 577, 628, fn. 10.) "`All that is required to sustain a conviction of assault with a deadly weapon is proof that there was an assault, that it was with a deadly weapon, and that the defendant intended to commit a violent injury on another. [Citation.] A battery, or a wounding[,] is not necessary in order to sustain a conviction for assault with a deadly weapon. [Citation.]" (People v. Lee (1994) 28 Cal.App.4th 1724, 1734.)
These elements are satisfied when a defendant points the gun at another person and demands compliance with his instructions (People v. Fain (1983) 34 Cal.3d 350, 357), or when a defendant uses the gun as a bludgeon (People v. Miceli (2002) 104 Cal.App.4th 256, 269). "Assault with a deadly weapon can be committed by pointing a gun at another person [citation], but it is not necessary to actually point the gun directly at the other person to commit the crime." (People v. Raviart (2001) 93 Cal.App.4th 258, 263.)
The record does not support defendants assertion that the prosecution elected to prove the armed assault based solely on the events within the Murray residence. There was no jury instruction to that effect, and defendant does not contend an election by the prosecution was necessary as a matter of law. Defendant merely points to a passage of the prosecutors argument, in which she referred to the incident in which defendant debated aloud whom he would kill first as supporting assault convictions as to all three victims—Calleros, Murray, and Anjelique. Because that statement hardly conveyed the understanding that the prosecution case was limited to that single event, it did not amount to an election: "If the prosecution is to communicate an election to the jury, its statement must be made with as much clarity and directness as would a judge in giving instruction. The record must show that by virtue of the prosecutors statement, the jurors were informed of their duty to render a unanimous decision as to a particular unlawful act." (People v. Melhado (1998) 60 Cal.App.4th 1529, 1539.) Indeed, the prosecutor had already described the pistol-whipping incident in detail, emphasizing that defendant hit Anjelique over the head with a gun and forced her into the car. Given the close temporal proximity between the bludgeoning incident and the events in the Murray residence—and that when defendant arrived at the Pomona alley he must have been in possession of the handcuffs he would use later—the jury was entitled to view the two incidents as a single criminal transaction.
In any event, defendants subsequent actions within the Murray residence would have sufficed to support the armed assault conviction. Although there was no evidence that defendant pointed his firearm directly at Anjelique in the residence, he had already shown his willingness to use the weapon to enforce his demands. Thus, when he handcuffed her and ordered his associates to take L. away, it would have been reasonable for Anjelique to infer resistance would be met with deadly force. Further, while inside the residence, defendant brandished the weapon at the others and threatened to kill them. Moreover, when the police arrived, defendant used his firearm to order Anjelique, Calleros, and Murray out the back door. As the jury was instructed through CALJIC No. 9.00.1, "`[w]here a party puts in a condition which must be at once performed, and which condition he has no right to impose, and his intent is immediately to enforce performance by violence, and he places himself in a position to do so, and proceeds as far as it is then necessary for him to go in order to carry out his intention, then it is as much an assault as if he had actually struck, or shot, at the other party, and missed him. . . ." (People v. Lipscomb (1993) 17 Cal.App.4th 564, 570, quoting People v. McMakin (1857) 8 Cal. 547, 548-549.)
Even if the pistol-whipping incident in Pomona were not considered, there was solid and credible evidence from which the jury could have reasonably inferred that defendant assaulted Anjelique with his handgun.
IV. Restitution Award
Defendant advances two arguments why the trial court abused its discretion in awarding a restitution award of $625 for Anjeliques relocation expenses—because she had no fixed living place from which to be relocated and because her expenses were not adequately substantiated. We reject the first because the statute authorizing relocation expenses does not require the victim be moved from a fixed location. Defendant forfeited the second argument by failing to object on that basis below.
At the sentencing hearing, the prosecution submitted to the court a restitution notice, seeking recovery of $2,357.18 for Anjeliques medical expenses, plus an additional $625 for her relocation expenses. Defendant objected to the inclusion of interest in the award. He also objected to the relocation expenses on the ground the trial evidence showed Anjelique did not "have a location to relocate from." In response to the courts inquiry, the prosecutor confirmed that Anjelique was relocated in the sense that "now shes living in a place unknown to the defendant for the purpose of remaining hidden from him." The court found the expense "absolutely appropriate" because the necessity of moving to an unknown location was "obviously due to the actions of the defendant." There was no further objection, and the court awarded the requested restitution.
We granted defendants motion to augment the record to include a copy of the restitution notice itself, which was referenced by the court, but not originally made part of the appellate record.
"As both parties agree, we review the trial courts restitution order for abuse of discretion. [Citations.] The abuse of discretion standard is `deferential, but it `is not empty. [Citation.] `[I]t asks in substance whether the ruling in question "falls outside the bounds of reason" under the applicable law and the relevant facts [citations]. [Citation.]" (People v. Giordano (2007) 42 Cal.4th 644, 663, fn. omitted.) Section 1202.4 embodies the legislative intent to ensure that crime victims who suffer any economic loss receive direct restitution from the defendant convicted of the crime. Subdivision (f)(3)(I) of section 1202.4 provides that whenever the defendants conduct causes an economic loss to the victim, the court shall require that the defendant make direct restitution for "[e]xpenses incurred by an adult victim in relocating away from the defendant, including, but not limited to, deposits for utilities and telephone service, deposits for rental housing, temporary lodging and food expenses, clothing, and personal items. Expenses incurred pursuant to this section shall be verified by law enforcement to be necessary for the personal safety of the victim or by a mental health treatment provider to be necessary for the emotional well-being of the victim."
As he did below, defendant contends relocation expenses are unavailable to victims with transient lifestyles. Section 1202.4 contains no such exception and we are aware of nothing in the case law that might support such an exception. To the contrary, the restitution statute is to be interpreted broadly and liberally to effectuate the voters intent that every victim who suffers a loss shall have the right to restitution from those convicted of the crime giving rise to that loss. (People v. Crisler (2008) 165 Cal.App.4th 1503, 1508.) "`Because the statute uses the language "including, but not limited to" these enumerated losses, a trial court may compensate a victim for any economic loss which is proved to be the direct result of the defendants criminal behavior, even if not specifically enumerated in the statute." (Ibid., quoting People v. Keichler (2005) 129 Cal.App.4th 1039, 1046.) Like the trial court, we understand the statutory basis for relocation expenses as reasonably encompassing the necessity of moving a victim to a location unknown to the defendant. The fact that defendant had repeatedly hunted Anjelique down and tried his utmost to kill her more than justified the courts award.
Despite his failure to raise the issue in the trial court, defendant contends the award was invalid because the relocation expenses were not "verified by law enforcement to be necessary for the personal safety of the victim or by a mental health treatment provider to be necessary for the emotional well-being of the victim." (§ 1202.4, subd. (f)(3)(I).) As defendant had every opportunity to raise that claim below—and because the objections he did make failed to provide the court and prosecution with notice of this additional ground—it is forfeited on appeal. (See, e.g., People v. ONeal (2004) 122 Cal.App.4th 817, 820; People v. Riccio (1996) 42 Cal.App.4th 995, 1003.) At no time did defendant object on the ground that the relocation expenses were inadequately documented. By failing to interpose a timely and specific objection, defendant deprived the prosecution and the court of the opportunity to respond to and evaluate the claim.
V. Cunningham/Blakely Claim
Defendant argues the trial court violated his Sixth Amendment jury trial right by imposing upper term sentences, including those for his false imprisonment conviction, without a jury finding on the aggravating factors pursuant to Cunningham, supra, 549 U.S. 270 and Blakely, supra, 542 U.S. 301. We disagree.
In People v. Black (2007) 41 Cal.4th 799, 805 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825, 831 (Sandoval), the California Supreme Court examined the imposition of an upper term under the state determinate sentencing law in light of Cunningham, supra, 549 U.S. at pages 279 to 281. Our Supreme Court held: "[A]s 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 [v. New Jersey (2000) 530 U.S. 466 (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 defendants right to jury trial." (Black II, supra, 41 Cal.4th at p. 812.) Our Supreme Court further held: "It follows that imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions." (Id. at p. 816.)
In addition, Black II made it clear that, consistent with Apprendi, aggravating circumstances justifying the upper term may be established "based upon the defendants record of prior convictions." (Black II, supra, 41 Cal.4th at p. 816.) Further, "`[r]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. [Citation.]" (Id. at p. 818.) Black II held the prior conviction exception includes "not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (Id. at p. 819.) "The determinations whether a defendant has suffered prior convictions, and whether those convictions are `numerous or of increasing seriousness (Cal. Rules of Court, rule 4.421(b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is `quite different from the resolution of the issues submitted to a jury, and is one more typically and appropriately undertaken by a court. [Citation.]" (Id. at pp. 819-820, fn. omitted.)
Here, the trial court found no circumstance in mitigation, but relied on recidivism-related statutory aggravating factors—specifically, that his prior convictions were numerous or of increasing seriousness and that he was on probation at the time of the crimes. (Cal. Rules of Court, rule 4.421(b)(2), (b)(4).) Because defendants "criminal history" established aggravating circumstances which "independently satisf[ied] Sixth Amendment requirements and render[ed] him eligible for the upper term[,] . . . he was not legally entitled to the middle term, and his Sixth Amendment right to a jury trial was not violated by imposition of the upper term sentence . . . ." (Black II, supra, 41 Cal.4th at p. 820; People v. Burch (2007) 148 Cal.App.4th 862, 873 ["The use of prior convictions as factors for a sentencing departure from the statutory maximum (middle term) is constitutionally permissible because it falls within the Supreme Courts bright-line exception . . . ."]; see also People v. Yim (2007) 152 Cal.App.4th 366, 371.)
VI. Abstract of Judgment
We agree with both parties that the abstract of judgment contains an unspecified five-year enhancement that was not imposed by the trial court. We order the abstract corrected to eliminate reference to that enhancement so that it conforms to the trial courts ruling. (People v. Mitchell (2001) 26 Cal.4th 181, 188.)
DISPOSITION
The abstract of judgment is ordered modified to delete reference to the unspecified five-year enhancement. The judgment as modified is affirmed. The trial court is directed to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.
We concur:
ARMSTRONG, Acting P. J.
MOSK, J.