Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA316281, Charles F. Palmer, Judge.
Cannon & Harris and Gregory L. Cannon, 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, Stephanie A. Miyoshi and Beverly K. Falk, Deputy Attorneys General, for Plaintiff and Respondent.
KITCHING, J.
Jose Rojas Bracamonte appeals from the judgment entered following his conviction by jury of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)) with admissions that he suffered two prior felony convictions (Pen. Code, § 667, subd. (d)). The court sentenced appellant to prison for eight years. We modify the judgment and, as modified, affirm it.
FACTUAL SUMMARY
1. People’s Evidence.
Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established that about 8:00 p.m. on January 28, 2007, appellant and Tony Rubio were arguing in a Hollywood bar. Appellant left and returned shortly thereafter with a dark or black cloth containing a large piece of concrete. Appellant, using an overhand motion, twice swung the bundle over his shoulder at Rubio, hitting him in the head twice. Richard Smith, who had been in the bar, observed the incident. Smith saw blood coming from Rubio’s head. Appellant fled with the bundle. Smith identified appellant as the assailant.
Gerald Andersen had been in the bar but did not see the assault. However, he saw a person, and another person who looked like appellant, arguing. Appellant later left and returned. The bartender jumped over the bar, a commotion ensued, appellant ran out the door with a black bundle about the size of a child’s soccer ball, and Rubio was holding his head.
Smith followed appellant out the door. Appellant walked briskly and Smith did not notice whether appellant walked with a limp. Appellant later discarded something near a bus bench near Argyle. At one point, appellant told Smith something to the effect that it was none of his business. Andersen followed Smith out the door of the bar and found the bundle under a bus bench on Argyle. Andersen pointed out the bundle to police, who retrieved it.
About 8:30 p.m. on January 28, 2007, Los Angeles Police Officer Arturo Ramirez went to the bar and saw Rubio. Rubio was bleeding so profusely from his head that Ramirez could not see Rubio’s face, and there was a pool of blood on the floor. Ramirez later detained appellant at a Metro station. Ramirez saw no injuries on appellant and appellant was not using a walker.
Ramirez put on top of a police car the bundle which Andersen had found. Ramirez asked appellant, who was in the car’s back seat, if appellant knew what the bundle was. Appellant replied, “That’s my shirt.” Ramirez saw an infection on appellant’s leg when appellant was receiving medical treatment in jail. Appellant complained to Ramirez that appellant’s leg was hurting.
Rubio was treated at a hospital. The treating physician testified that Rubio suffered two main scalp injuries: an inch-and-a-half stellate wound on the scalp that required nine staples, and a smaller laceration on the back of his head which required one staple. A stellate wound resulted from the point of an object concentrating the force of an object in a small area. The physician, concerned that Rubio’s skull might have been fractured or that he could have suffered a subdural hematoma, ordered a CT-scan. Such an injury, untreated, could have led to disability or death. Rubio’s blood alcohol level was.31 percent. Marijuana and an opiate were found in his system. Rubio did not testify at trial.
2. Defense Evidence.
In defense, appellant, who had suffered 1996 convictions for arson, criminal threats, stalking, and violating a court order, testified as follows. Appellant conducted yard sales to support himself. Rubio, a gang member and a friend of appellant, indicated that Rubio was in charge of the neighborhood and wanted some of the money appellant made. Appellant and Rubio were drinking together on January 27, 2007, and all day on January 28, 2007. On the latter date, they eventually went to the bar, argued about the money, and continued drinking. Appellant gave Rubio money and Rubio demanded more. Rubio threatened to assault appellant if appellant did not give Rubio money.
Rubio eventually grabbed appellant, and the argument continued. Appellant indicated the two were friends, appellant was disabled, and he did not want to fight. However, Rubio insisted on fighting, and he assaulted appellant.
Rubio grabbed appellant again and, using profanity, indicated the two had to go outside to resolve the matter. The two went outside. Rubio grabbed appellant, repeatedly punched him, and repeatedly kicked his legs, including his ulcerated leg. Appellant told Rubio to stop, that appellant was disabled, and that appellant did not want to fight. Rubio eventually stopped assaulting appellant, and Rubio reentered the bar.
Appellant reentered the bar to get his jacket and to have the bartender call the police. Appellant feared for his life because Rubio was a gang member and appellant thought Rubio and his friends would come after appellant. Appellant raised his hand to get the bartender’s attention. Rubio again assaulted appellant. Appellant, using all his strength, threw Rubio against something. Appellant did not know whether he threw Rubio against a wall, a table, or a stool.
Appellant denied possession of the concrete rock or the shirt. Ramirez did not put a shirt on the hood of a police car and ask whether the shirt belonged to appellant. Nor did Ramirez say anything about the concrete. Appellant never had a chance to hit Rubio, because Rubio was the aggressor. Appellant never had anything in his hands except for a blue navy jacket.
Rubio had suffered three Washington misdemeanor convictions: in 2000 for possession of less than an ounce of marijuana, and in 2004 and 2005 for driving under the influence.
CONTENTIONS
Appellant claims the trial court erroneously excluded, in violation of appellant’s right to present a defense, evidence that Rubio refused to cooperate with Ramirez. Appellant presents related claims that the trial court committed Cunningham error when imposing the upper term for the present offense, and that the remedy is to modify appellant’s sentence by imposing the middle term. Appellant claims a weapons-related order issued by the sentencing court was an unauthorized sentence.
DISCUSSION
1. The Trial Court’s Exclusion of Evidence of Rubio’s Refusal To Cooperate With Ramirez Did Not Violate Appellant’s Right to Present a Defense.
a. Pertinent Facts.
During appellant’s cross-examination of Ramirez, Ramirez testified that he spoke with Rubio in the hospital after the incident. Appellant’s counsel asked Ramirez, “Isn’t it true [Rubio] refused to cooperate with you?” The prosecutor posed relevance and hearsay objections. Appellant’s counsel indicated that evidence of the refusal was being offered to show that Rubio did not want to press charges against appellant “such that it’s legally operative; that, in fact,... nothing really occurred. It’s to show... that this never should have been filed because it was a situation where he was assaulted. It was a situation of self-defense.” (Sic.) The court ruled appellant was proffering the evidence for its truth; therefore, it was hearsay and, to the extent it was nonhearsay, the proffered evidence was irrelevant. Ramirez later testified that, after Rubio was treated, Ramirez asked Rubio what his address was, and Rubio did not provide it.
During the presentation of the defense evidence, a juror notified the court that the juror thought that if a person had been hit, the person definitely would have wanted to be present in court. The court instructed the juror, inter alia, that the juror was not to speculate why the juror had not received a particular piece of evidence or why Rubio did not appear at trial. The juror indicated the juror understood.
b. Analysis.
Appellant claims the trial court erroneously excluded, in violation of appellant’s right to present a defense, evidence that Rubio refused to cooperate with Ramirez. We disagree.
Evidence Code section 210, states, in pertinent part, that: “ ‘Relevant evidence’ means evidence... having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.” Evidence Code section 350, states: “No evidence is admissible except relevant evidence.” An appellate court applies an abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including a ruling concerning relevance. (People v. Waidla (2000) 22 Cal.4th 690, 717, 723-725.)
Assuming Rubio refused to cooperate with Ramirez, there might have been any number of reasons why that was the case. Rubio could have been, by personality, uncooperative with police generally. He could have feared retribution from appellant who, according to the People’s evidence, had feloniously assaulted him. Rubio could have feared self-incrimination since marijuana and an opiate were found in his system. He could have refused to cooperate because Rubio and appellant were friends.
There is no dispute that, as the court instructed the jury, appellant’s application of force upon Rubio when appellant threw Rubio was committed in self-defense only if appellant reasonably believed he was in imminent danger of suffering bodily injury or in imminent danger of being touched unlawfully, and he reasonably believed the immediate use of force was necessary to defend against the danger. Rubio’s refusal to cooperate with Ramirez had no tendency in reason to prove appellant’s subjective belief on these issues or whether it was reasonable. The trial court did not abuse its discretion by concluding that the proffered evidence of Rubio’s refusal to cooperate was irrelevant. Moreover, the application of ordinary rules of evidence, as here, did not impermissibly infringe on appellant’s right to present a defense. (Cf. People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103.)
In light of our conclusion, there is no need to reach the issue of whether the refusal was inadmissible hearsay.
Appellant’s reliance upon the fresh complaint doctrine is misplaced. In People v. Brown (1994) 8 Cal.4th 746 (Brown), cited by appellant, that doctrine permitted the introduction into evidence of a testifying sexual offense victim’s extrajudicial complaint that the sexual offense occurred, in order to eliminate the risk that a jury would rely on (1) an erroneous widespread assumption that a victim of a sexual offense naturally will complain that the offense occurred, and (2) the absence, at the trial, of evidence of such a complaint, to infer that the offense did not occur. (Id. at pp. 758-763.) Evidence admitted pursuant to this doctrine may be considered by the jury for the purpose of corroborating the victim’s testimony. (People v. Ramirez (2006) 143 Cal.App.4th 1512, 1522.) Brown observed, “evidence of the fact of, and the circumstances surrounding, an alleged victim’s disclosure of the offense may be admitted in a criminal trial for nonhearsay purposes under generally applicable evidentiary principles, provided the evidence meets the ordinary standard of relevance.” (Brown, supra, 8 Cal.4th at p. 763.)
However, even assuming the doctrine applies to a victim’s fresh complaint about a nonsexual offense such as the felonious assault at issue here, Rubio never testified, i.e., he presented no testimony to corroborate. Moreover, appellant proffered, not a complaint, fresh or otherwise, but a refusal to cooperate with Ramirez. Further, appellant proffered the refusal to cooperate, not, of course, to corroborate that appellant feloniously assaulted Rubio with a piece of concrete, but to show that conduct which was otherwise an assault by appellant (i.e., appellant’s throwing of Rubio) was justified as committed in self-defense.
We note our Supreme Court stated in Brown, “In the present case, the evidence of Audrey’s [the victim’s] complaint to Diana Russell [a concerned adult] was relevant to the jury’s determination whether the alleged molestation did or did not occur. Audrey testified to a series of sexual offenses occurring over a period of several years during which she remained silent, failing to disclose the incidents to anyone. The circumstances under which the alleged molestation finally came to light was reasonably probative of the likelihood that the alleged molestation did or did not occur. The evidence of Audrey’s complaint to Diana Russell--in response to prompting by a concerned adult who observed Audrey’s distress, and with whom she felt safe and emotionally secure--tended to shed light upon the reasons she ultimately did come to disclose the molestation, as well as the reasons for her substantial delay in doing so, and tended to forestall any erroneous inferences that might have arisen in the absence of that evidence.” (Brown, supra, 8 Cal.4th at pp. 763-764.) The present case is not one in which an extrajudicial complaint helps explain delay preceding a victim’s testimony. Rubio did not testify, and appellant was promptly detained and prosecuted, i.e., there was no delay to explain.
Finally, based on the People’s evidence, appellant feloniously assaulted Rubio, i.e., self-defense was inapplicable. As to the defense evidence, the jury heard ample testimony from appellant about the alleged brutality of Rubio prior to appellant’s alleged throwing of Rubio in self-defense. Appellant’s testimony that Rubio was the aggressor and that appellant acted in self-defense was far more probative on those issues than any evidence of Rubio’s refusal to cooperate (and the jury necessarily rejected any self-defense evidence). The jury heard evidence (and heard appellant argue to the jury) that Rubio refused to cooperate to the extent he failed to provide his address to Ramirez, and the jury was aware that Rubio did not testify at trial. There was ample evidence that appellant committed the present offense, and the jury reasonably could have concluded that appellant’s testimony was fabricated. It is not reasonably probable that a different result would have occurred in this case if the proffered evidence of Rubio’s refusal to cooperate with Ramirez had been admitted in evidence. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)
2. No Cunningham Error Occurred.
Appellant presents related claims that the trial court committed Cunningham error when imposing the upper term for the present offense, and that the remedy is to modify appellant’s sentence by imposing the middle term. We disagree.
a. Pertinent Facts.
The information filed in February 2007, alleged that appellant suffered two prior felony convictions under the “Three Strikes” law, i.e., 1996 convictions in case No. 96WF2832 for criminal threats and arson, respectively. The preconviction probation report prepared for a March 2007 hearing reflects that appellant suffered the following convictions in the following years: 1978: for driving under the influence; 1984: burglary; 1988: petty theft; 1994, petty theft with a prior; 1995: possession of contraband in jail; and 1996: providing false identification to a police officer.
The preconviction report also reflects appellant suffered 1996 convictions (in case No. 96WF2832) for vandalism, arson, criminal threats, stalking, and violating a court order, and a 1999 conviction (in case No. BA182493) for petty theft with a prior. Appellant was sentenced to prison in case Nos. 96WF2832 and BA182493.
In the present case, on January 11, 2008, appellant admitted the two prior felony convictions alleged in the information. At the April 17, 2008 sentencing hearing, the court recited appellant’s prior convictions as reflected in the probation report. The court, pursuant to Penal Code section 1385, struck appellant’s Three Strikes law prior felony conviction for arson in case No. 96WF3832. The court sentenced appellant to the four-year upper term for the present offense, and doubled that term pursuant to the Three Strikes law. The court stated, “The high term is selected because the victim was actually injured as a result of this assault; given the weight of the rock, a piece of concrete, utilized as a weapon, the victim could have been severely injured or killed.”
b. Analysis.
“In Cunningham [v. California (2007)] 549 U.S. 270 [166 L.Ed.2d 856] [(Cunningham)], the Supreme Court applied Apprendi [v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi)] and Blakely [v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely)] to California’s then existing determinate sentencing law, which provided that ‘the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime.’ (Former [Pen. Code,] § 1170, subd. (b).) The Supreme Court held that by ‘assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated “upper term” sentence,’ California’s determinate sentencing law ‘violates a defendant’s right to trial by jury safeguarded by the Sixth and Fourteenth Amendments.’ (Cunningham, supra, at p. 274 [166 L.Ed.2d at p. 864], italics added, overruling People v. Black (2005) 35 Cal.4th 1238... (Black I) on this point.)
“The California Legislature quickly responded to the Cunningham decision. Senate Bill No. 40 (2007-2008 Reg. Sess.) (Senate Bill 40) amended section 1170 in response to Cunningham’s suggestion that California could comply with the federal jury-trial constitutional guarantee while still retaining determinate sentencing, by allowing trial judges broad discretion in selecting a term within a statutory range, thereby eliminating the requirement of a judge-found factual finding to impose an upper term. (Cunningham, supra, 549 U.S. at pp. 292-294 [166 L.Ed.2d at pp. 876-877]; see Stats. 2007, ch. 3, § 1.)” (People v. Wilson (2008) 164 Cal.App.4th 988, 991-992 (Wilson).)
Wilson continued, “Senate Bill 40 amended section 1170 so that (1) the middle term is no longer the presumptive term absent aggravating or mitigating facts found by the trial judge; and (2) a trial judge has the discretion to impose an upper, middle or lower term based on reasons he or she states. As amended, section 1170 now provides as pertinent: ‘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....’ (§ 1170, subd. (b).) This amended version of section 1170 became effective on March 30, 2007. (Stats. 2007, ch. 3, § 2.)” (Wilson, supra, 164 Cal.App.4th at p. 992.)
Here, although the present offense occurred in 2007, Penal Code section 1170, was amended effective March 30, 2007, and the trial court sentenced appellant in 2008. The trial court stated its reason(s) for imposing the upper term for the present offense. The trial court’s sentencing of appellant in compliance with the requirements of amended Penal Code section 1170, subdivision (b), did not violate appellant’s federal constitutional rights under Apprendi, Blakely, or Cunningham.
Moreover, even if Cunningham applied to appellant’s sentencing, there was no error. “In Cunningham, the United States Supreme Court, applying principles established in its earlier decisions in [Apprendi and Blakely], concluded that California’s [determinate sentence law] does not comply with a defendant’s right to a jury trial. ‘[U]nder the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence.’ (Cunningham, supra, 549 U.S. at [p. 281] [127 S.Ct. at pp. 863-864].)” (People v. Sandoval (2007) 41 Cal.4th 825, 835 (Sandoval).)
The Sandoval court later observed, “Apprendi stated, ‘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.’ (Apprendi, supra, 530 U.S. at p. 490, italics added.)” (Sandoval, supra, 41 Cal.4th at p. 835.)
In Blakely, the high court concluded that “ ‘the “statutory maximum” for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.’ ([Blakely, supra, 542 U.S.] at p. 303.)” (Sandoval, supra, 41 Cal.4th at p. 836.)
In People v. Black (2007) 41 Cal.4th 799 (Black), our Supreme Court stated: “[W]e agree with the Attorney General’s contention 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.” (Id. at p. 812.) The court also stated, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.)
Black also stated, “imposition of the upper term does not infringe upon the defendant’s 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 defendant’s record of prior convictions.” (Black, supra, 41 Cal.4th at p. 816.)
The United States Supreme Court has recognized an exception to a defendant’s Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. The right to a jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (Sandoval, supra, 41 Cal.4th at pp. 836-837.)
Sandoval concluded that the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705] applies to Cunningham error. (Sandoval, supra, 41 Cal.4th at p. 838.) In applying that standard “we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Ibid., italics added.) “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839, italics added.) We determine this issue in view of the jury’s verdict (id. at p. 841) and in view of “the state of the evidence” (ibid.) actually presented to the jury.
In the present case, appellant had suffered multiple prior convictions. This rendered him constitutionally eligible for the upper term. No Cunningham error occurred. Moreover, even if Cunningham error occurred, there was overwhelming evidence that appellant was, as the trial court stated, “actually injured as a result of this assault; given the weight of the rock, a piece of concrete, utilized as a weapon, the victim could have been severely injured or killed.” Any Cunningham error was not prejudicial. (See Sandoval, supra, 41 Cal.4th at p. 839.) Because no reversible Cunningham error occurred, nothing warranting a remedy occurred.
3. The Trial Court’s Weapons Order Must Be Stricken.
During sentencing, the court ordered, “Do not own, use, threaten to use, possess, buy or sell any deadly or dangerous weapons, including, but not limited to, firearms or other concealable weapons.” The order is not reflected in the abstract of judgment.
Appellant claims the trial court’s order was an unauthorized sentence. We agree. Although such an order might have been a proper probation condition, the court did not grant probation but imposed sentence. We reject respondent’s characterization of the order as an “advisement” of the laws governing appellant’s conduct following his conviction, a characterization inconsistent with respondent’s suggestions that the Court’s action was a sentencing choice. Appellant had counsel, and it was the role of appellant’s counsel to give any such advisement. If appellant violates laws in the future the People can seek to prosecute him at that time. Respondent does not claim the trial court had statutory, inherent, or constitutional authority to issue the challenged order. The court’s above mentioned weapons order was an unauthorized sentence. As such, it could be challenged on appeal whether or not appellant raised the issue below. (People v. Zackery (2007) 147 Cal.App.4th 380, 386.) The order must be stricken.
DISPOSITION
The judgment is modified by striking the trial court’s order, “Do not own, use, threaten to use, possess, buy or sell any deadly or dangerous weapons, including, but not limited to, firearms or other concealable weapons” and, as modified, the judgment is affirmed.
We concur: KLEIN, P. J., CROSKEY, J.