Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County Super. Ct. No. SCS201985, Laura J. Birkmeyer, Judge.
IRION, J.
A jury convicted Ricardo Alberto Carignan of inflicting corporal injury upon a cohabitant (Pen. Code, § 273.5, subd. (a), count 1); assault by means likely to produce great bodily injury (§ 245, subd. (a)(1), count 2); making a criminal threat (§ 422, count 3); attempting to dissuade a witness from reporting a crime (§ 136.1 subd. (b)(1), count 4); and three counts of violating a court protective order involving domestic violence (§166, subd. (c)(1), counts 6, 7 & 9). The trial court sentenced Carignan to prison for 14 years four months.
Statutory references are to the Penal Code unless otherwise specified.
Carignan appeals, asserting that his convictions must be reversed because the trial court abused its discretion in admitting references to his parole status and previous assault of a former girlfriend into evidence. In addition, he contends that the trial court violated section 654 by sentencing him both for assault and infliction of corporal injury based on the same conduct. We conclude that the trial court did not abuse its discretion by admitting Carignan's parole status and previous assault into evidence. We agree, however, that Carignan's sentence violates section 654, and consequently remand for resentencing.
FACTS
On April 22, 2006, at around 11:00 p.m., Carignan became angry with his girlfriend, Karla Cardenas, after attending a party to which Cardenas's relatives had invited a man for her to meet. Carignan called Cardenas a "bitch," a "slut" and a "whore." While he was calling her these names, Cardenas poured a bottle of water on Carignan and told him, "Get the fuck out." Carignan, who was lying in bed, rose and approached Cardenas, pushing her with his hands and upper body as she backed from the bedroom to the living room. When Cardenas reached the kitchen, she fell backwards. Carignan got on top of Cardenas, pinned her down, hit her and held an extension cord across the front of her neck.
Carignan released Cardenas and went back into the bedroom to put his shoes on. Cardenas, who had also returned to the bedroom, called Carignan a "monster" and told him to get out. Carignan then got on top of Cardenas and choked her with his hands. Cardenas tried to push Carignan off but he put her in a headlock. Cardenas bit Carignan and tried to run away, but she fell on the floor. Carignan repeatedly kicked and punched Cardenas.
Carignan then walked into the kitchen saying, "Watch, you're going to see right now." Cardenas followed Carignan into the kitchen and saw him open a drawer that contained knives. Cardenas grabbed the phone to call for help, but Carignan pulled the telephone out of the wall and said to Cardenas, "You called the cops, you rat bitch." Cardenas ran to the sliding glass door to scream for help, but Carignan pushed her back and closed the door. Cardenas, who suffers from asthma, went to the bathroom to vomit.
The jury acquitted Carignan of a charge of "unlawfully and maliciously tak[ing] down, remov[ing], injur[ing], or obstruct[ing] any line of [a] telephone, . . . or any part thereof." (§ 591.)
The next day, Cardenas took Carignan's apartment key and told him to move out. Later in the week, Carignan called Cardenas and asked her if she was feeling better. Cardenas said that she was and that "every day will get better and better." Carignan responded, "What do you mean? You're going to go to the police, you rat bitch." He then stated, "Just know that if you go to the cops I'll send some crazy motherfucker to get you. Watch your babies." Cardenas hung up, but Carignan immediately called back, stating that Cardenas was "going to tell Steve," Carignan's parole officer, and she was "a rat."
DISCUSSION
I
The Court Did Not Abuse Its Discretion by Admitting Evidence of Carignan's Prior Abusive Conduct and Parole Status
Carignan asserts that the trial court erred by admitting evidence that he was on parole and that he had told Cardenas he assaulted a former girlfriend who "informed on him." We set forth the relevant procedural history prior to addressing this claim.
A. Procedural Background
Prior to trial, the prosecution sought a ruling that evidence of Carignan's alleged gang affiliation, his prior convictions for robbery and assault, and his parole status were admissible.
The court held a hearing to determine the admissibility of the evidence. At the hearing, Cardenas testified that after being threatened, she feared for her own safety and that of her children because she believed that Carignan was capable of carrying out his threats. She testified that she knew Carignan was in a gang, had beaten up a previous girlfriend after she "ratted him out," had a prior robbery conviction and was on parole.
The court denied the prosecution's motion regarding the prior convictions and gang evidence, but granted the motion as to Carignan's parole status because it was relevant to the attempt to dissuade a witness charge. The court also ruled Cardenas could testify that she believed Carignan had harmed others in the past and had previously beat up an ex-girlfriend for "ratt[ing] him out." The court found that such evidence was highly probative regarding Cardenas's state of mind (i.e., sustained fear) on the criminal threat charge and that its probative value outweighed any prejudicial effect.
B. Analysis
Carignan contends that the trial court's ruling constituted an abuse of discretion under Evidence Code section 352 because the prejudicial effect of his parole status and prior violent conduct substantially outweighed any probative value. We disagree.
Evidence Code section 352 permits the trial court "in its discretion" to "exclude evidence if its probative value is substantially outweighed by the probability that its admission will . . . create substantial danger of undue prejudice." As this discretionary power is expressly granted to the trial judge by statute, the "exercise of that wide discretion must not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice." (People v. Jordon (1986) 42 Cal.3d 308, 316.) " 'The prejudice that [Evidence Code] section 352 " 'is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence.' " ' " (People v. Branch (2001) 91 Cal.App.4th 274, 286 (Branch).) Undue prejudice comes from evidence " ' " 'which uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues.' " ' " (People v. Crittenden (1994) 9 Cal.4th 83, 134 (Crittenden).)
Applying the above standard, we conclude that the trial court did not abuse its discretion by admitting Carignan's prior assault and parole status into evidence. While the evidence was undoubtedly prejudicial, it had significant probative value, and Carignan has failed to carry his heavy burden of demonstrating that the trial court abused its discretion in admitting it.
The trial court ruled that the evidence of Carignan's prior assault was relevant to the criminal threat charge. To establish that a defendant made a criminal threat under section 422, the prosecution must prove that the defendant intended that the victim would take a statement as a threat and that the threat placed the victim in a state of "sustained fear." (§ 422; People v. Garrett (1994) 30 Cal.App.4th 962, 966.) Additionally, the prosecution must "show that the nature of the threat, both on 'its face and under the circumstances in which it is made,' was such as to convey to the victim an immediate prospect of execution of the threat and to render the victim's fear reasonable." (Garrett, at pp. 966-967.) A defendant's prior criminal and violent conduct are relevant to establish these elements. (Ibid.; see also People v. Allen (1995) 33 Cal.App.4th 1149, 1156 ["The victim's knowledge of defendant's prior conduct is relevant in establishing that the victim was in a state of sustained fear"].) Consequently, it has been recognized in this context that "[s]eldom will evidence of a defendant's prior criminal conduct be ruled inadmissible" as unduly prejudicial "when it is the primary basis for establishing a crucial element of the charged offense." (Garrett,at p. 967.)
Section 422 makes it unlawful for any person to "willfully threaten to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate family's safety."
In the instant case, the trial court reasonably concluded that Carignan's prior assault was relevant to establish that Carignan committed a criminal threat when he told Cardenas, "[j]ust know that if you go to the cops I'll send some crazy motherfucker to get you. Watch your babies." (Crittenden, supra, 9 Cal.4th at p. 134 [concluding that trial court did not abuse its discretion under Evid. Code, § 352 where "it reasonably could determine that the probative value of the [evidence] outweighed [its] potentially prejudicial effect"].) Indeed, Cardenas's testimony that Carignan told her he assaulted a former girlfriend for "ratt[ing] him out" strongly supported the prosecution's contention that Carignan intended his statement to "be taken as a threat" and that the statement caused Cardenas "reasonably to be in sustained fear" because of a belief that Carignan would carry out the threat if he thought she was going to the authorities. (Garrett, supra, 30 Cal.App.4th at pp. 966, 967 [victim's knowledge that defendant "had killed a man with a gun in the past" was "extremely relevant and probative" in criminal threat prosecution based on threat to " 'put a bullet in [Wife's] head' "]; cf. People v. McCray (1997) 58 Cal.App.4th 159, 172 ["evidence of past domestic abuse was highly relevant and probative" with respect to victim's mental state in § 422 prosecution].)
Carignan's reliance on People v. Brown (1993) 17 Cal.App.4th 1389, 1396-1397 ("As a general rule, the courts have interpreted Evidence Code section 1101 as not permitting introduction of uncharged prior acts solely to corroborate or bolster the credibility of a witness," italics omitted) and People v. Bryden (1998) 63 Cal.App.4th 159, 181 (quoting Brown, at pp. 1396-1397) is unavailing. Neither of the cited cases involved a criminal threat prosecution and consequently the evidence of prior bad acts was relevant in those cases, only to a "collateral issue" (Brown, at p. 1397) and not, as here, to an element of the charged offense. (See Garrett, supra, 30 Cal.App.4th at p. 968 [recognizing that "Evidence Code section 1101 posed no bar to the admission of . . . evidence" where the evidence was relevant to establish victim's mental state in criminal threat prosecution]; People v. Zavala (2005) 130 Cal.App.4th 758, 770 [same].)
Carignan's contention that reversal is warranted because the prosecution could have relied on other evidence (e.g., Carignan's beating of Cardenas) to establish the reasonableness of Cardenas's fear is unavailing. First, the evidence that Carignan retaliated against a former girlfriend specifically for going to the authorities was more probative than his general abusive conduct on the question of whether Cardenas reasonably believed Carignan would retaliate against her and her children as threatened. Second, even if Carignan is correct that the prosecutor could rely on other evidence to support the requisite element of the criminal threat charge, that would not negate the probative value of the evidence offered, or require rejection of the evidence under Evidence Code section 352. (People v. Scheid (1997) 16 Cal.4th 1, 19 [evidence need not be excluded under Evid. Code, § 352 merely because it is "cumulative of the testimonial evidence presented"]; cf. Old Chief v. United States (1997) 519 U.S. 172, 186 [recognizing "familiar, standard rule that the prosecution is entitled to prove its case by evidence of its own choice"].)
Consequently, we cannot conclude that the trial court abused its discretion. The evidence was highly probative on the criminal threat charge, and while Cardenas's testimony held some potential for undue prejudice, we cannot conclude, as a matter of law, that its probative value was "substantially" outweighed by the danger of undue prejudice. (Evid. Code, § 352; Branch, supra, 91 Cal.App.4th at p. 282 [appellate court can reverse based on evidentiary ruling under Evid. Code, § 352 "only if the [trial] court's ruling was 'arbitrary, whimsical or capricious as a matter of law' "].)
With respect to Carignan's parole status, the trial court reasonably concluded that the fact that Carignan was on parole was relevant to establishing an element of count 4 — that Carignan attempted to prevent Cardenas from reporting his crime to a "peace officer or state or local law enforcement officer or probation or parole or correctional officer, prosecuting agency or to any judge." (§ 136.1, subd. (b)(1), italics added.) Carignan's generic threat that Cardenas not inform the "cops" was inextricably intertwined with his assertions that Cardenas would "tell Steve" about his conduct, and consequently the evidence that "Steve" was Carignan's parole officer was extremely probative. (Garrett, supra,30 Cal.App.4th at p. 967 ["Seldom will evidence of a defendant's prior criminal conduct be ruled inadmissible when it is the primary basis for establishing a crucial element of the charged offense"].) In addition, the fact that Cardenas was acquainted with Carignan's parole officer, and thus could readily report to "Steve" what had occurred, and that Carignan specifically referenced "Steve" in the context of his threat, was relevant to the jury's assessment of whether Carignan, in fact, "maliciously" intended to "interfere" with her reporting of his crime to authorities, and was not simply trying to shame her by calling her a "rat." (See CALCRIM No. 2622.) Thus, while, again, the fact that Carignan was on parole had the potential for some prejudice, we cannot conclude that, as a matter of law, this potential substantially outweighed the probative value, particularly as the court offered to provide a limiting instruction with respect to the use of that evidence.
Carignan suggests on appeal that Cardenas's testimony "could easily have been modified" to state that Carignan "had accused her of planning to call the police." We are aware of no authority, and Carignan cites none, however, that would suggest that the trial court was required to do so. The court acted well within its authority in allowing the witness to testify in unaltered form that "Steve," referred to by Carignan, was a parole officer — thus satisfying the element of the section 136.1 charge — and then offering to provide a limiting instruction to the jury with respect to the proper use of the testimony.
Having determined that the trial court did not abuse its discretion by admitting Carignan's parole status and prior assault into evidence, we also reject, for the same reasons, the conclusory claim that admission of the evidence violated his constitutional due process and fair trial rights. It is well settled that a trial court's proper application of the "ordinary rules of evidence" does not, except in unusual circumstances, amount to a constitutional violation. (People v. Hall (1986) 41 Cal.3d 826, 834; People v. Catlin (2001) 26 Cal.4th 81, 133, fn. 12.) No such circumstances are present here.
II
The Court's Consecutive Sentence on Counts 1 and 2 Violated Section 654
Carignan argues that because the evidence at trial demonstrated a "single continuing event" that formed the basis for his convictions for both count 1, infliction of corporal injury on a cohabitant (§ 273.5, subd. (a)), and count 2, assault "by any means of force likely to produce great bodily injury" (§ 245, subd. (a)(1)), the court violated section 654 by sentencing him separately on those counts. We agree that section 654 prohibits separate punishments on counts 1 and 2. In light of the evidence presented, the court's instructions and the prosecutor's closing argument, the jury's verdict on those counts represented a finding that Carignan committed a single criminal "act," punishable by two separate provisions of law, and thus Carignan can receive only one punishment under section 654. (Id., subd. (a).)
Section 654, subdivision (a) provides in part: "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Our Supreme Court has explained that "because the statute is intended to ensure that defendant is punished 'commensurate with his culpability,' " its "protection has been extended to cases in which there are several offenses committed during 'a course of conduct deemed to be indivisible in time.' " (People v. Harrison (1989) 48 Cal.3d 321, 335.)
"[A]t sentencing, a trial court must accept and rely upon the same factual basis which the jury unanimously selected and relied upon to convict the defendant on a particular count." (People v. Coelho (2001) 89 Cal.App.4th 861, 876 (Coelho).) As our colleagues in the Sixth District have explained, this "rule protects the defendant's federal and state constitutional rights to a jury trial and ensures that he or she is punished for only those offenses the jury found beyond a reasonable doubt that he or she committed." (Ibid.; cf. Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856, 870; 127 S.Ct. 856, 865] [" 'the "statutory maximum" for Apprendi[ v. New Jersey (2000) 530 U.S. 466] purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict' " (italics added)].)
In the instant case, the trial court overruled Carignan's objection to separate sentences on counts 1 and 2, based on its interpretation of the jury's verdict as a finding of two distinct criminal "acts." In doing so, the court explicitly relied "on the reasoning in the probation report," which states that count 1 "occurred in the kitchen where the defendant started attacking the victim," and count 2 "occurred in the bedroom when the defendant used the electrical cord to hit the victim." The court emphasized that because there was a "break in time" between counts 1 and count 2 (as characterized by the probation officer), each count could be punished separately.
Contrary to the trial court's conclusion, however, there was nothing in the evidence presented to the jury, the instructions of the court, or the prosecution's argument, that separated Carignan's unlawful conduct into the two discrete criminal acts as suggested in the probation report. Instead, the case (with respect to counts 1 and 2) was presented and argued as if Carignan had engaged in one continuous criminal act, punishable as either an assault with intent to commit great bodily injury, the infliction of corporal injury on a cohabitant, or both.
Consistent with this presentation, the prosecutor, in closing argument, emphasized that any punch or kick in the sequence was sufficient to constitute both infliction of corporal injury upon a cohabitant (count 1) and assault by means likely to produce great bodily injury (count 2). Indeed, it was for this very reason (the indivisibility of the criminal conduct) that the trial court was not required to give any unanimity instruction that would have required the jury to agree as to the specific underlying factual conduct upon which Carignan's convictions were based. (People v. Sutherland (1993) 17 Cal.App.4th 602, 611-612 [a unanimity instruction is required "where the evidence shows that the defendant has committed two or more similar acts, each of which is a separately chargeable offense"]; People v. Crandell (1988) 46 Cal.3d 833, 875 [a "unanimity instruction is not required when the acts are so closely connected in time as to form part of one transaction"], disapproved on other grounds in People v. Crayton (2002) 28 Cal.4th 346, 364-365; People v. Hawkins (2002) 98 Cal.App.4th 1428, 1455 [unanimity instruction not required where the prosecutor made an election as to the factual circumstances that are relied upon to prove the charged crime].)
The prosecutor argued, with respect to count 1, that it was "enough" to find Carignan guilty of inflicting corporal injury if he "meant to punch" and "meant to kick" Cardenas, and then did so, resulting in "some visible injuries," such as "redness," as a "result of the strike." With respect to count 2, the prosecutor argued that Carignan's "punching and kicking" constituted an assault that could have caused great bodily injury because "[y]ou can cause great bodily injury with one punch." Finally, he summed up his position in rebuttal with the contention that the case was "about a woman suffering a beating."
The court provided the jury with a unanimity instruction (i.e., that it had to agree as to the specific unlawful "act [Carignan] committed") as to counts 4 and 5, but not with respect to counts 1 or 2.
The one exception in the trial record where a distinction was made between counts 1 and 2 serves only to reinforce the conclusion that the jury did not accept that distinction. The prosecution separately alleged, for purposes of a sentencing enhancement (§ 1192.7, subd. (c)(23)), that in committing the assault by means likely to produce great bodily injury (count 2), but not the infliction of corporal injury (count 1), Carignan used a "deadly weapon" — the electrical cord. (Ibid.) The allegation was premised on Cardenas's testimony that Carignan held an electrical cord across her neck during the assault. The jury, however, found the allegation "not true," concluding that Carignan did not use an electrical cord "in such a way that it [was] capable of causing and likely to cause death or great bodily injury" (CALCRIM No. 3145), implicitly accepting the prosecutor's alternative contention that the assault by means likely to produce great bodily injury in count 2, like count 1, consisted of a punch or kick delivered somewhere in the course of the "beating" because "[y]ou can cause great bodily injury with one punch." (Cf. People v. Takencareof (1981) 119 Cal.App.3d 492, 498 [conduct for which a defendant has been acquitted should not be relied on to impose an aggravated sentence]; People v. Richards (1976) 17 Cal.3d 614, 624 [stating that defendant who has been able to convince a jury to doubt his guilt "should not have the additional task of persuading the judge regarding the subsequent sentencing disposition on other charges"].)
In sum, there is nothing in the trial record to support the hypothesis that the jury unanimously agreed that Carignan committed two discrete criminal "acts," as later identified by the probation officer and adopted by the trial court. Instead, the record dictates the conclusion that the jury accepted the prosecutor's invitation to decide the much narrower question of whether somewhere in the sequence of events testified to by Cardenas, Carignan unlawfully punched or kicked her — a finding that the prosecutor argued was sufficient for convictions on both counts 1 and 2. (Coelho, supra, 89 Cal.App.4th at p. 876.) As a result, the jury's verdict on counts 1 and 2 reflects a finding of a single "act . . . punishable in different ways by different provisions" and cannot, under section 654, support separate punishments under each of those provisions. (Id., subd. (a); cf. People v. Robles (2000) 23 Cal.4th 1106, 1115 [where "language of a penal law is reasonably susceptible of two interpretations," the courts must "construe the law 'as favorably to criminal defendants as reasonably permitted by the statutory language and circumstances of the application of the particular law at issue' "]; Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357 [emphasizing the " 'prudential rule of judicial restraint' " which "directs that 'if reasonably possible, statutory provisions should be interpreted in a manner that avoids serious constitutional questions' "].)
The Attorney General relies on People v. Nubla (1999) 74 Cal.App.4th 719, 731, for the contention that section 654 does not prohibit multiple sentences based on a continuous course of assaultive conduct. We do not quarrel with the general principle announced in Nubla. That case, however, was an appeal of a court trial, and thus did not consider the much more difficult question presented here, where the trial court rules section 654 inapplicable based on a sentencing finding that is inconsistent with the jury's verdict.
DISPOSITION
The case is remanded for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: HALLER, Acting P. J., McDONALD, J.