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People v. Hendrix

California Court of Appeals, Second District, Third Division
Dec 27, 2007
No. B190607 (Cal. Ct. App. Dec. 27, 2007)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JAMMIE HENDRIX, Defendant and Appellant. B190607 California Court of Appeal, Second District, Third Division December 27, 2007

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Kennedy-Powell, Judge, Los Angeles County Super. Ct. No. BA220727.

John Lanahan, 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, Paul M. Roadarmel, Jr. and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.

ALDRICH, J.

INTRODUCTION

A jury found defendant and appellant Jammie Hendrix guilty of special circumstance murder, burglary, and sexual penetration by a foreign object. He makes four contentions on appeal. First, the trial court erred when it denied his Wheeler/Batson motion. Second, the court prejudicially erred by excluding third party culpability evidence. Third, the court prejudicially erred by instructing the jury with CALJIC No. 2.90. Finally, defendant’s upper term sentences on the burglary and sexual penetration by a foreign object counts violate Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). We reject all of defendant’s contentions and affirm the judgment.

People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler), overruled in part by Johnson v. California (2005) 545 U.S. 162, and Batson v. Kentucky (1986) 476 U.S. 79 (Batson).

FACTUAL AND PROCEDURAL BACKGROUND

I. Factual background.

A. The murder of Dr. Lourdes Unson.

Dr. Lourdes Unson worked for All American Medical Group, which had several clinics. A private and fearful person, Dr. Unson was concerned for her safety to such an extent that she, for example, routinely checked the air in her tires. In fact, after her house was broken into, Dr. Unson moved into an apartment where she felt safer because neighbors were closer. Dr. Unson’s safety concerns extended to men. When examining male patients, she had a nurse present because she was nervous about being alone with a man. One time, Victor Maldonado, who worked at the clinic with Dr. Unson, tried to hug her in thanks for a present she gave him, but she pulled away and would not let him hug her.

On April 13, 2001, the Friday before Easter, Dr. Unson worked at the clinic. Before leaving work that day, Dr. Unson, who was very religious, mentioned that she would be going to church that night, as well as on Saturday and Easter Sunday. The next day, April 14, from 12:50 to 1:01 in the afternoon, Dr. Unson was at a bank in Los Feliz, where she lived. Later that day, she purchased items and received a receipt time-stamped 5:52 p.m.

Photographs of Dr. Unson taken by the bank’s surveillance system were introduced at trial.

On Monday, April 16, Dr. Unson failed to show up for work at 10:00 a.m. Concerned, because Dr. Unson was conscientious about calling in when she was sick, the clinic’s manager called Dr. Unson. After calling throughout the day and receiving no answer, the manager asked Victor Maldonado to go to Dr. Unson’s home. Maldonado was too busy to go on Monday, but he went the next day, Tuesday, April 17.

Maldonado arrived at Dr. Unson’s second floor apartment in Los Feliz around noon on April 17. The front door was ajar. Maldonado walked into the apartment. Two sets of keys, Dr. Unson’s shoes and broken eyeglasses, and a broken fan were on the floor. Dr. Unson’s purse was on an ironing board. Although the purse was usually full, it was in an empty, flattened condition.

Maldonado continued into the bedroom. Dr. Unson was on the bed. She was naked from the waist down, her legs were open, her knees were bent, and blood was oozing from her vagina. She was dead. Alongside the bed was a pair of pants, which appeared to be the same pair of pants she wore to the bank on April 14. Dr. Unson was wearing the same sweater she wore to the bank on April 14. No documents or receipts were found dated after April 14 at 5:52 p.m.

Using plastic to cover his hand, Maldonado called 911.

B. The investigation of Dr. Unson’s murder.

Sonia Leahong lived in Dr. Unson’s apartment building. She was not familiar with Dr. Unson, but she spoke to her in passing and saw her occasionally in the laundry room. Leahong did not see Dr. Unson with visitors; she appeared to be a private and cautious person.

Leahong met defendant, whose nickname was Jay, in 1999. In April 2001, defendant was staying with Leahong at her apartment. On Saturday, April 14, defendant told Leahong he would be leaving that day for New York. Leahong left her apartment around 3:00 p.m., and she did not get home that night until midnight or later, by which time defendant was already gone. She told defendant to leave the apartment key on the table and not to be there when she returned.

At 9:22 p.m. on April 14 a phone call was made from Leahong’s apartment to a taxicab company. A taxi picked “Jay” up at 9:29 p.m. outside the apartment building. At 9:52 p.m., “Mr. Jay” bought a Greyhound bus ticket dated April 14, 2001, from Los Angeles to Austin, Texas. The bus was scheduled to leave at 11:45 p.m., but it left a little past midnight. The bus stopped in Blythe and arrived in Austin, Texas on April 16. On April 15, defendant called Sonia Leahong and told her he was in Blythe en route to New York. He called her again a couple of days later and told her he was in New York.

Leahong initially lied to detectives about what happened the evening of April 14. She told Detective McCartin that she drove defendant to the bus station at 4:00 p.m., but, in truth, she did not.

On April 17, the same day Dr. Unson’s body was discovered, and on May 15, 2001, defendant pawned jewelry, some of which belonged to Dr. Unson, in Austin, Texas. Dr. Unson never mentioned that any of her jewelry had been lost or stolen and she never filed a police report concerning missing jewelry. Dr. Unson, however, was meticulous about her jewelry: she removed her jewelry, wrapped it in tissue paper, and put it in her purse before leaving work. She put it on only after arriving at work.

Prints matching defendant’s were found on Dr. Unson’s front door and on the bathroom wall next to the toilet, the seat of which was up at the time Dr. Unson’s body was discovered. There was no sign of forced entry on the front door. Prints on the bed’s headboard did not match defendant’s. Prints belonging to Gerry Cruz were on the underside of a glass table in Dr. Unson’s living room.

C. Medical evidence.

1. The examination and autopsy of Dr. Unson’s body.

Dr. Louis Pena, a deputy medical examiner for Los Angeles County, went to the crime scene on April 17. At 4:00 p.m., on April 17, the ambient temperature in Dr. Unson’s apartment was 80 degrees Fahrenheit. Dr. Unson’s liver temperature at 4:03 p.m. was 70 degrees Fahrenheit.

By the time Dr. Unson’s body was first examined at 6:40 p.m., rigor mortis had passed, and she had lividity (a pooling of blood) on her back. She had hemorrhages in her eyes, bruising on her neck, injuries to her legs, blood in her ear canals, bruising to her vagina, and a vaginal tear. According to Dr. Laura Slaughter, the best explanation for the vaginal injuries was they were caused by a foreign object. An autopsy performed on April 18 revealed partially digested white rice, green vegetables, and meat in Dr. Unson’s stomach. In Dr. Pena’s opinion, Dr. Unson was manually strangled.

2. Expert testimony.

Lividity, or rigor mortis, refers to a postmortem change which can be noted mostly by looking at skin. It is a pooling of the blood to the lower parts of the body. Lividity begins immediately after a person dies, but is typically not noticeable until a couple of hours have passed. Thus, a couple of hours after death, if you press a finger where there is lividity, the skin will blanch. But 8 to 10 hours after death, the skin will not blanch. Therefore, although lividity can be used to estimate the time of death, it is only useful during the initial hours after death, because after 8 to 10 hours, the skin will not blanch.

Rigor mortis is another postmortem change. It is a gradual stiffening of the muscles. It takes about six hours for all of the major muscles to become hard and stiff, and the body will remain stiff for a variable amount of time, depending on outside factors, such as temperature. Rigor mortis resolves in an average of 76 hours. Algor mortis refers to the change in body temperature after death. After death, body temperature will change to the surrounding, or ambient, temperature, which means that the body temperature usually cools.

Decomposition refers to the breakdown of body tissues after death. The amount of time it takes for decomposition to take place is extremely variable. For example, if a body is frozen, decomposition will not occur at all. But in hot weather, bodies may reach an advanced stage of decomposition in just 24 hours. Because the rate of decomposition is so variable, it is of limited use in determining time of death.

Based on his review of records, Dr. Frank Sheridan opined that Dr. Unson had been dead for a minimum of 24 to 36 hours and up to a maximum of a week before she was examined at 6:40 p.m. on April 17. In other words, Dr. Unson died any time from one day before her body was examined on the afternoon of April 17 to about seven days before her body was examined.

At the preliminary hearing, Dr. Pena testified that the time of death was up to 36 hours, but not more. At trial, however, Dr. Pena did not stand by that testimony, and he instead said he had no opinion on the time of death.

3. Deoxyribonucleic Acid (DNA) testing.

Nail clippings from Dr. Unson’s right and left hands were sent to Cellmark Diagnostic laboratory for testing. The clippings from Dr. Unson’s right hand contained DNA from at least two individuals. The major DNA contributor was female, and the minor contributor was male. The female contributor’s DNA matched Dr. Unson’s DNA. The male contributor’s DNA was consistent with defendant’s DNA. In other words, defendant could not be excluded as a source of that DNA. No data from the clippings excluded defendant as a source of the DNA. If certain assumptions are made about the right hand fingernail clippings—that Dr. Unson was a donor, that the clippings came from her, and that there were only two donors to the mixture—then only 1 in 220 million individuals would have the DNA profile that might contribute to make that mixture, thereby excluding over 99 percent of the population.

D. The defense case.

A LAPD criminalist who analyzed hair samples was told that a Black suspect had been identified with fingerprints at the crime scene and that she should disregard any other suspect and look for hairs consistent with a Black suspect. Defendant, however, was not a donor of any hair recovered and tested.

Adelina DaSilva lived on the first floor of Dr. Unson’s apartment building. DaSilva and Dr. Unson attended the same church, and DaSilva saw Dr. Unson there a couple of times. At trial, DaSilva testified she saw Dr. Unson at church on Friday, April 13 in the afternoon, but she did not see Dr. Unson at the Easter Mass on Saturday evening, April 14, 2001. But, according to a defense investigator, DaSilva told him she did not remember if she saw Dr. Unson Saturday night at church. On Sunday evening, April 15, she heard somebody walking heavily in front of her door and speaking in a language she didn’t understand. She then heard a noise and a woman say “ ‘huh.’ ” The footsteps went upstairs.

At the time Dr. Unson was murdered, Miles Corwin, a journalist, was writing a book based on his experiences following LAPD detectives. He wrote about Dr. Unson’s murder. He recalled a witness saying something about seeing Dr. Unson at church, but he did not know on what date she was seen.

Nellie Greenwood also lived in the same apartment building as Dr. Unson. On Easter Sunday morning, April 15, 2001, Greenwood saw Dr. Unson in the laundry room. Greenwood knew it was Sunday because that is when she goes to the swap meet.

Dr. Paul Hermann, a pathologist, opined that it is nearly impossible to determine the time of death. Based on his review of records, Dr. Unson had been dead at least 24 to 36 hours based on the absence of signs of decomposition, and she had not been dead more than 48 hours.

II. Procedural background.

Trial was by jury. On January 27, 2006, the jury found defendant guilty of count 1 for murder in the first degree (Pen. Code, § 187, subd. (a)). The jury found true two special circumstance allegations: First, defendant committed the murder while he was engaged in the crime of rape by instrument (§ 190.2, subd. (a)(17)(K)), and, second, that he committed the murder while he was engaged in the crime of residential burglary (§ 190.2, subd. (a)(17)(G)). They jury also found defendant guilty of count 2 for first degree burglary (§ 459) and of count 3 for sexual penetration by a foreign object (§ 289, subd. (a)(1)).

All further undesignated statutory references are to the Penal Code.

On April 17, 2006, the trial court sentenced defendant to life without the possibility of parole on count 1 for murder. The court sentenced defendant to the upper term of six years on count 2 for burglary and to the upper term of eight years on count 3 for sexual penetration by a foreign object. The court stayed the sentences on counts 2 and 3 under section 654.

DISCUSSION

I. Wheeler/Batson.

A. Additional facts.

Defense counsel made a Wheeler/Batson motion on the ground that the People excused a disproportionate number of African-American jurors. Although defense counsel said that three, and possibly four, African-American jurors had been excused, he only identified Jurors Nos. 9087 and 8140 as “ones I feel there was absolutely no reason whatsoever to excuse them.” According to the trial court’s notes, the People had exercised 15 peremptories, three of which were to African-American jurors.

Although the court said it did not know if a prima facie case had been made, the court nevertheless asked the prosecutor to explain the reasons for his peremptories. He said, “The most recent one . . . . She’s a student, and as a rule I don’t like students to be on my juries. I find that they’re in most cases young and in most cases very [i]nexperienced with respect to having a fullness or richness of life experience. And I think that her youth is perhaps more obvious just because of her general exuberance, . . . I just don’t think that she’s had the life experience that’s appropriate for a juror on a murder case especially. But it’s, more than anything else, her capacity as a student that I think makes her – and, of course, her youth that makes her an inappropriate juror for this case.”

Neither the prosecutor nor defense counsel specified by juror badge number to whom they were referring.

The prosecutor continued, “I remember the young man, the claims adjustor [Juror No. 8140]. I actually for a while thought that he would be a great juror in this case. I agreed with [defense counsel] at this point and I think I accepted the panel while he was a seated juror. In the afternoon, . . . he gave me what I would call a sustained hostile look. I was looking at the jurors and for about 5 seconds he looked at me with what I would call a hard core look and I was very uncomfortable with it. I had intended to keep him on the jury, but obviously that was telling and upsetting and I didn’t think he would be a good juror for this case, not for the State.”

When the People asked defense counsel to clarify who was the third juror the motion was directed at, defense counsel said it was Juror No. 9087, but the trial court pointed out, and counsel agreed, that Juror No. 9087 was an Asian woman. The court said, “So I guess maybe there’s only two peremptories that he excused out of the 15, and I don’t find that the excuses were done on a racially motivated basis, and I’m going to deny your motion at this time.”

Ultimately, there were two African-American jurors.

B. General principles.

The state and federal Constitutions prohibit using peremptory challenges to remove prospective jurors based solely on group bias, including race. (Batson, supra, 476 U.S. at p. 89; Wheeler, supra, 22 Cal.3d at pp. 276-277.) Our United States Supreme Court has recently “reaffirmed that Batson states the procedure and standard to be employed by trial courts when challenges such as defendant’s are made. ‘First, the defendant must make out a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” [Citations.] Second, once the defendant has made out a prima facie case, the “burden shifts to the State to explain adequately the racial exclusion” by offering permissible race-neutral justifications for the strikes. [Citations.] Third, “[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination.” [Citation.]’ ” (People v. Cornwell (2005) 37 Cal.4th 50, 66-67, quoting Johnson v. California (2005) 545 U.S. 162, 168, fn. omitted.)

“ ‘[A] defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.’ ” (People v. Cornwell, supra, 37 Cal.4th at p. 67, quoting Johnson v. California, supra, 545 U.S. at p. 170.) An inference is a logical conclusion reached based on a set of facts. (People v. Lancaster (2007) 41 Cal.4th 50, 74.) “ ‘When a trial court denies a Wheeler motion without finding a prima facie case of group bias, the appellate court reviews the record of voir dire for evidence to support the trial court’s ruling. [Citations.] We will affirm the ruling where the record suggests grounds upon which the prosecutor might reasonably have challenged the jurors in question.’ ” (People v. Guerra (2006) 37 Cal.4th 1067, 1101, quoting People v. Farnam (2002) 28 Cal.4th 107, 135; see also Lancaster, at p. 74 [we review the “voir dire of the challenged jurors to determine whether the totality of the relevant facts supports an inference of discrimination”].)

If a prima facie case is made, and the State offers a race-neutral justification for the challenges, then “ ‘the trial court “must make ‘a sincere and reasoned attempt to evaluate the prosecutor’s explanation in light of the circumstances of the case as then known, his knowledge of trial techniques, and his observations of the manner in which the prosecutor has examined members of the venire and has exercised challenges for cause or peremptorily . . . .’ [Citation.]” ’ [Citation.] ‘[T]he trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutor’s race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine.’ [Citation.] Inquiry by the trial court is not even required. [Citation.] ‘All that matters is that the prosecutor’s reason for exercising the peremptory challenge is sincere and legitimate, legitimate in the sense of being nondiscriminatory.’ [Citation.] A reason that makes no sense is nonetheless ‘sincere and legitimate’ as long as it does not deny equal protection. [Citation.]” (People v. Guerra, supra, 37 Cal.4th at pp. 1100-1101.)

“We review the trial court’s ruling on purposeful racial discrimination for substantial evidence. [Citation.] It is presumed that the prosecutor uses peremptory challenges in a constitutional manner. We defer to the court’s ability to distinguish ‘bona fide reasons from sham excuses.’ [Citation.] As long as the court makes ‘a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal.’ ” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1009.)

C. The trial court did not err when it denied the Wheeler/Batson motion.

Defendant contends error arose from the trial court’s acceptance of the prosecution’s reasons for excusing two African-American jurors and from the court’s failure to engage in any comparative juror analysis. There are two initial problems with defendant’s contention. First, the record is not clear which jurors were the subject of the motion. Defense counsel specifically identified Jurors Nos. 8140 and 9087, but Juror No. 9087 was not African-American. She was Asian. Defense counsel then failed to specify for the record who was the other excused African-American juror. Second, defendant’s trial counsel neither asked the trial court to engage in a comparative juror analysis nor did he make any record to aid in that analysis. Nor has defendant’s appellate counsel—other than making a conclusory statement that the trial court should have engaged in a comparative juror analysis—explained, based on the record, which jurors should be a part of a comparative analysis. For example, counsel made no record of the number of African-Americans jurors on the panel.

In any event, defendant’s contentions fail for other reasons. Namely, even if we assume that a prima facie case was made, the prosecutor offered race-neutral justifications for the challenges, and the trial court made a sincere and reasoned attempt to evaluate those justifications. As to Juror No. 8140, the prosecutor explained he excused him because the juror gave him a hostile look. This was a legitimate, race-neutral justification for excusing Juror No. 8140. A prosecutor is entitled to rely “ ‘on the prospective jurors’ body language . . . as a basis for rebutting a prima facie case’ of exclusion for group bias.” (People v. Reynoso (2003) 31 Cal.4th 903, 917, quoting People v. Fuentes (1991) 54 Cal.3d 707, 715.) Even trivial explanations may be valid so long as the explanations are reasonably specific and neutral. (Reynoso, at p. 917; accord People v. Jones (1998) 17 Cal.4th 279, 294.) Moreover, the People twice accepted the panel with Juror No. 8140 on it. Although the court did not make note of this fact, it supports the conclusion that something then happened—a hostile look—that caused the prosecutor to excuse Juror No. 8140.

Defendant argues that the prosecutor’s acceptance of the panel with Juror No. 8140 on it does not support a race-neutral justification for the prosecutor’s later excusal of that juror. He posits that the prosecution excused Juror No. 8140 when it did because it became concerned about the over representation of African-Americans on the panel. The problem with this argument, as we have said, is defense counsel failed to make a record of the number of African-Americans on the panel.

Although neither defendant’s trial counsel nor his appellate counsel in the opening brief on appeal identify who was the second African-American juror included in the Wheeler/Batson motion, the prosecutor, in justifying his challenges, referred to the second juror as the “student.” The record shows that Juror No. 0246, whom the prosecution excused, was a legal receptionist and a student. Juror No. 0246’s status as a student and her youth were the reasons the prosecutor gave for excusing her. He said young people and students do not have the life experience “appropriate for a juror on a murder case especially.” This was a valid reason. (People v. Perez (1994) 29 Cal.App.4th 1313, 1328 [“Limited life experience is a race-neutral explanation”].)

Defendant suggests that the trial court failed to sincerely evaluate these race-neutral reasons, and, instead, denied the Wheeler/Batson motion for a “statistical” reason. The trial court, however, merely noted that the prosecutor had exercised two out of 15 peremptory challenges to African-Americans. The court did not state it was denying the motion based on numbers alone. To the contrary, the court stated it did not “find that the excuses were done on a racially motivated basis.” Moreover, the reasons the prosecutor gave for excusing the jurors were, as discussed above, race-neutral and legitimate. Where such excuses were given, the court was under no obligation to make any further inquiry. (People v. Guerra, supra, 37 Cal.4th at pp. 1100-1101.)

II. Third party culpability.

Before trial, the People moved to exclude third party culpability evidence. Specifically, the People sought to exclude evidence concerning Karo Zhmakoshyan and Gerry Cruz. Zhmakoshyan lived in the same apartment building and on the same floor as Dr. Unson. He had been arrested in 1998 for kidnapping and raping a high school student, but the case was dismissed. Detective McCartin described Zhmakoshyan as evasive and unclear about where he had been in the months since his family moved out of the apartment building. None of the prints recovered from the crime scene matched Zhmakoshyan’s. The defense did not request testing to see if Zhmakoshyan’s DNA was consistent with the DNA found under the victim’s nails. The trial court excluded any reference to Zhmakoshyan.

The trial court also excluded evidence concerning Gerry Cruz. His prints were found on the underside of a glass table in Dr. Unson’s living room. Cruz told the police that he was a furniture mover and that he helped his friend, Joey, move in 1998. The trial court found that evidence of Cruz’s prints was admissible, but precluded any evidence about any investigation into him as a suspect or his criminal background.

Defense counsel said he was not seeking to introduce Cruz’s criminal background or his statements to detectives.

Defendant now contends that the trial court prejudicially erred in excluding this evidence. We disagree.

Evidence that a third party committed the charged offense is admissible if it is “capable of raising a reasonable doubt of defendant’s guilt.” (People v. Hall (1986) 41 Cal.3d 826, 833.) “At the same time, the law does not require that any evidence, however remote, must be admitted to show a third party’s possible culpability. . . . Evidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (Ibid.) Third party culpability evidence should be treated like any other evidence: if relevant it is admissible unless its probative value is substantially outweighed by the risk of undue delay, prejudice or confusion under Evidence Code section 352. (People v. Robinson (2005) 37 Cal.4th 592, 625.) A trial court’s ruling under Evidence Code section 352 will not be disturbed on appeal absent a finding that the court abused its discretion. (Ibid.)

No abuse of discretion occurred here. Karo Zhmakoshyan came under scrutiny only because of his criminal record. As the trial court noted, he was just one of the “usual suspects” because he is a registered sex offender and he lived in Dr. Unson’s apartment building. No evidence, direct or circumstantial, connected him to the crime, for example, none of the prints in Dr. Unson’s apartment matched his. Also, the only evidence connecting Gerry Cruz to Dr. Unson was the presence of his print on the underside of her living room glass table. Importantly, this evidence was admitted at trial. Only Cruz’s statements to the police that he was a furniture mover and that he helped “Joey” move some furniture in 1998 and his criminal background were excluded. But defense counsel did not seek to introduce those statements, and it is unclear, as we discuss below, what difference their admission would have made. Other than the print, no evidence connected Cruz to the crime. Therefore, the third party culpability evidence was properly excluded.

Defendant also claims that the exclusion of the evidence violated his federal constitutional rights to present a defense and to due process of law. As we have said, there was no state law error. Under such a circumstance, the California Supreme Court has “long observed that, ‘[a]s a general matter, the ordinary rules of evidence do not impermissibly infringe on the accused’s [state or federal constitutional] right to present a defense.’ [Citations.]” (People v. Robinson, supra, 37 Cal.4th at pp. 626-627.) In any event, any state law error would be harmless under the reasonable probability test in People v. Watson (1956) 46 Cal.2d 818, 836, and any federal constitutional error would be harmless under the beyond a reasonable doubt test of Chapman v. California (1967) 386 U.S. 18, 23-24. (Robinson, at p. 627.) Strong evidence linked defendant to the crimes. Defendant had been staying in Dr. Unson’s apartment building. Dr. Unson was last seen alive on April 14, the day defendant left town. The last purchase she made before being killed was on April 14 at almost 6:00 p.m. She was found in clothes she had been wearing on April 14. Defendant left the apartment building on April 14, at approximately 9:30 p.m. Based on this evidence and on evidence about the condition in which her body was found, she could have been killed on April 14 between 6:00 p.m., when she made her last purchase, and 9:30 p.m., when a taxi picked up defendant from the apartment building. After leaving town, defendant pawned Dr. Unson’s jewelry—jewelry about which she was meticulous and never reported lost or stolen. Defendant’s prints were found in Dr. Unson’s apartment, notably, in her bathroom, and DNA consistent with defendant’s DNA was found under Dr. Unson’s nails.

In opening argument, defense counsel said that defendant was in Dr. Unson’s apartment and took her jewelry, but he denied raping and murdering her. Defendant did not testify.

Based on this evidence, we conclude that any error in excluding the evidence was harmless under both People v. Watson and Chapman v. California.

III. CALJIC No. 2.90

The trial court instructed the jury with CALJIC No. 2.90 as follows: “A defendant in a criminal action is presumed to be innocent until the contrary is proved. And in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. [¶] This presumption places upon the People the burden of proving him guilty, beyond a reasonable doubt. [¶] Reasonable doubt is defined as follows: It is not a mere possible doubt because everything relating to human affairs is open to some possible or imaginary doubt. [¶] It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge.”

Defendant contends that the instruction is constitutionally deficient because it fails to tell the jury that to find defendant guilty it must find that he committed each of the elements of the offenses charged beyond a reasonable doubt. Our California Supreme Court rejected this contention in People v. Osband (1996) 13 Cal.4th 622, 679 (Osband). The court said: “[W]e find no reasonable likelihood that the jury was misled with regard to its obligation to find each element of each charged crime proven beyond a reasonable doubt.” (Ibid.; see also People v. Ochoa (2001) 26 Cal.4th 398, 444, fn. 13 [“It would be correct to instruct that the People must prove every element of the offense beyond a reasonable doubt, but a defendant is not entitled to that instruction”], disapproved on other grounds in People v. Prieto (2003) 30 Cal.4th 226, 263, fn. 14.) We are bound by Osband. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

Defendant recognizes that we are bound by Osband and states that he raises the issue to preserve it for federal review.

Defendant nonetheless argues that Osband is in tension with United States Supreme Court authority, namely United States v. Gaudin (1995) 515 U.S. 506. Nothing in Gaudin, however, calls into question Osband’s conclusion. Gaudin merely recognized a defendant’s right to have a jury determine guilt on every element of a charged crime beyond a reasonable doubt, but it did not require any specific language in jury instructions. Equally unpersuasive is defendant’s argument that giving CALJIC No. 2.01 regarding sufficiency of circumstantial evidence compounded the alleged error in giving CALJIC No. 2.90 by “reinforcing the gestalt approach to reasonable doubt” in CALJIC No. 2.90. Our California Supreme Court has rejected similar arguments. (People v. Maury (2003) 30 Cal.4th 342, 428.)

The jury was instructed with CALJIC No. 2.01 as follows: “However, a finding of guilt as to any crime may not be based on circumstantial evidence unless the proved circumstances are not only, one, consistent with the theory that the defendant is guilty of the crime; but[,] two, cannot be reconciled with any other rational conclusion. [¶] Further, each fact which is essential to complete a set of circumstances necessary to establish the defendant’s guilt must be proved beyond a reasonable doubt. [¶] In other words, before an inference essential to establish guilt may be found to have been proved beyond a reasonable doubt, each fact or circumstance on which the inference necessarily rests must be proved beyond a reasonable doubt. [¶] Also, if the circumstantial evidence as to any particular count permits two reasonable interpretations, one of which points to the defendant’s guilt and the other to his innocence, you must adopt that interpretation that points to the defendant’s innocence and reject that interpretation which points to his guilt. [¶] If, on the other hand, one interpretation of the evidence appears to you to be reasonable and the other interpretation to be unreasonable, you must accept the reasonable interpretation and reject the unreasonable.”

IV. Cunningham.

On April 17, 2006, the trial court sentenced defendant to life without the possibility of parole on count 1. Without stating any reasons, the court imposed upper term sentences on count 2 for burglary and count 3 for sexual penetration with a foreign object, but stayed the sentences under section 654. Citing Cunningham, supra, 549 U.S. __ [166 L.Ed.2d 856], defendant contends that the imposition of the upper terms violated his federal constitutional right to a jury under the Sixth and Fourteenth Amendments to the United States Constitution.

We reject the People’s argument that defendant, by failing to object to the upper term sentences at his April 17, 2006 sentencing hearing, forfeited the issue on appeal. That sentencing hearing was held after the decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), and before Cunningham was decided in 2007. Under such circumstances, defendant did not forfeit his right to raise the issue on appeal. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.)

In Cunningham, the United States Supreme Court reaffirmed Blakely v. Washington (2004) 542 U.S. 296 and Apprendi v. New Jersey (2000) 530 U .S. 466, and overruled People v. Black (2005) 35 Cal.4th 1238 (Black I). Cunningham held that California’s determinate sentencing law violates a defendant’s right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution to the extent that law authorizes the trial judge to find facts (other than a prior conviction) that expose a defendant to an upper term sentence by a preponderance of the evidence. “This Court has repeatedly held that, under 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. ___ [127 S.Ct. at pp. 863-864].)

After Cunningham, our California Supreme Court, in People v. Black (2007) 41 Cal.4th 799 (Black II), reexamined California’s determinate sentencing system and held that the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. “[I]mposition 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.” (Id. at p. 816.)

Black II also took a broad view of the scope of the prior conviction exception. The court said, “As we recognized in [People v.] McGee [(2006) 38 Cal.4th 682], numerous decisions from other jurisdictions have interpreted the Almendarez-Torres [v. United States (1998) 523 U.S. 224] exception to include 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. . . . [¶] The determinations whether a defendant has suffered prior convictions, and whether those convictions are ‘numerous or of increasing seriousness’ [citation], 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 issues submitted to a jury, and is one more typically and appropriately undertaken by a court.’ ” (Black II, supra, 41 Cal.4th at pp. 819-820.)

We are bound by Black II, as well by its companion case, People v. Sandoval, supra, 41 Cal.4th 825. (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455.) Therefore, given the trial court’s failure to state any reasons for its imposition of the upper terms on counts 1 and 2, we have reviewed the record to determine if aggravating circumstances were present on which the trial court could have based its decision. Our review of the record shows that, in 1990, defendant was convicted in California of grand theft person (§ 487.2) and sentenced to jail and 36 months’ probation. While on probation, defendant, in 1991, was convicted in Texas of burglary and sentenced to five years in prison. Also in Texas, he was twice charged in 1995 with misdemeanor assault causing bodily injury, but both cases were dismissed. In 1997, he pled no contest in Texas to misdemeanor assault. In 1999, he pled no contest to misdemeanor assault in Texas and was sentenced to 200 days in jail. His criminal history thus shows that he has served a prior prison term, which is an aggravating factor justifying imposition of the upper term. (Cal. Rules of Court, rule 4.421(b)(3).) Defendant also had one conviction in California for grand theft person and one misdemeanor conviction in Texas, which also justify the upper term. We therefore must reject defendant’s Cunningham challenge to his upper term sentences.

People v. Sandoval held that any sentencing error is reviewed under the standard in Chapman v. California, supra, 386 U.S. 18. The test for harmless error is whether the reviewing court can conclude, “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[.]” (People v. Sandoval, supra, 41 Cal.4th at p. 839.)

Defendant’s failure to object at the time to this lack of statement of reasons forfeits for appeal any error in such failure. (People v. Scott (1994) 9 Cal.4th 331, 356.) “[T]he statement of reasons is intended to facilitate review of sentencing decisions that otherwise rest within the sound discretion of the trial court. When that court errs in identifying or articulating its sentencing choices, the reviewing court has no choice but to remand the matter for resentencing unless it finds the error nonprejudicial, i.e., it is ‘not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.’ [Citation.]” (Id. at p. 355.) Therefore, even if defendant had not forfeited for appeal any error the trial court committed by failing to state reasons for imposing the upper terms, any error would be nonprejudicial. As we state, the court, under Black II and Sandoval, could impose the upper term based on defendant’s record of prior convictions.

DISPOSITION

The judgment is affirmed.

We concur: KLEIN, P. J., KITCHING, J.


Summaries of

People v. Hendrix

California Court of Appeals, Second District, Third Division
Dec 27, 2007
No. B190607 (Cal. Ct. App. Dec. 27, 2007)
Case details for

People v. Hendrix

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JAMMIE HENDRIX, Defendant and…

Court:California Court of Appeals, Second District, Third Division

Date published: Dec 27, 2007

Citations

No. B190607 (Cal. Ct. App. Dec. 27, 2007)