Opinion
C053157
8-6-2008
THE PEOPLE, Plaintiff and Respondent, v. TAPPETHA LORRAINE HOSSACK et al., Defendants and Appellants.
Not to be Published
Following an evening of turmoil, defendant Tappetha Lorraine Hossack drove her car into her boyfriend, Danny Burroughs. As Burroughs attempted to stand, Hossack drove into him again. Hossacks ex-boyfriend, defendant Michael Delarm, then stabbed Burroughs repeatedly, telling him, "You dont know who youre dealing with, youre dead."
An amended information charged Hossack with attempted murder and assault with a deadly weapon. (Pen. Code, §§ 664/187, 245, subd. (a)(1).) A jury found Hossack guilty of the lesser offense of attempted voluntary manslaughter and guilty of assault with a deadly weapon. Sentenced to eight years in state prison, Hossack appeals, contending: (1) the court erred in finding that she failed to make a prima facie case of purposeful discrimination during jury selection, (2) the court erred in denying her motion for a mistrial, (3) insufficient evidence supports her conviction for attempted voluntary manslaughter, and (4) there were a variety of instructional errors. We shall affirm the judgment.
All further statutory references are to the Penal Code unless otherwise indicated.
An amended information charged Delarm with attempted murder and assault with a deadly weapon. A jury found Delarm guilty of both counts. Sentenced to 13 years in state prison, Delarm appeals, arguing the court erred in sentencing him to the upper term based on facts not found by the jury and joining in Hossacks claim of instructional error as to reasonable doubt and the prosecutions burden of proof. Again, we shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Three people clashed violently one evening in April 2005. As a result, an amended information was filed charging Hossack with attempted murder and assault with a deadly weapon. (§§ 664/187, 245, subd. (a)(1).) As to the attempted murder charge, the information alleged Hossack personally used a nonfirearm weapon (a car) during the commission of the offense. (§ 12022, subd. (b)(1).)
The amended information also charged Delarm with attempted murder and assault with a deadly weapon. (§§ 664/187, 245, subd. (a)(1).) As to the attempted murder charge, the information alleged Delarm personally used a nonfirearm weapon (a knife) during the commission of the offense. (§ 12022, subd. (b)(1).)
As to all counts, it was alleged Hossack and Delarm personally inflicted great bodily injury during the commission of the offenses under circumstances involving domestic violence. (§ 12022.7, subd. (e).)
The relationships among the parties, the abrupt shifting of loyalties and the resulting violence necessitate a somewhat lengthy examination of the testimony presented at trial. A jury heard the following evidence.
The Relationships Among Hossack, Delarm, and Burroughs
In April 2005 Hossack and Delarm had a 16-month-old son, and Hossack was pregnant with Delarms child. The couple had broken up. Hossack did not want to reconcile; Delarm did.
Danny Burroughs, the victim, lived with Keith Woods in an apartment in a sober living facility. Burroughs began dating Hossack about two months prior to the incident, and their relationship had become intimate. Burroughs spent the night at Hossacks home almost every night.
Through Hossack, Burroughs met many of her friends, including Brandy Feltz-Patelzick, Jess Thornton, and Ken Golden. Burroughs got along well with Feltz-Patelzick and considered himself a "cordial acquaintance" with Thornton and Golden.
The Day of the Incident
On the morning of the incident, Burroughs called Hossack to tell her he had received a good grade on a college exam. Hossack congratulated Burroughs and arranged to meet at his apartment after Delarm, who was visiting his son, left. Burroughs shopped for a friendship card for Hossack, who he believed was "a little mixed up" about Delarm.
When Hossack failed to arrive at Burroughss apartment, he called her. Hossack told him Delarm had borrowed her car to take their son to the park, and she was waiting to borrow Feltz-Patelzicks car. Hossack said she would be there in an hour, but she never arrived.
That afternoon, Woods, Burroughss roommate, came home and suggested they go to a local strip club, the Déjà Vu. Woods thought Burroughs seemed tired and depressed. Burroughs called Hossack, who offered to give him discount passes to the strip club. They agreed that Hossack and Feltz-Patelzick would meet them later at the club.
Woods and Burroughs picked up the passes at Hossacks house while Delarm was still at the park. Hossack invited them in for a beer and gave Burroughs a card congratulating him on his good grade. Hossack was nervous about Delarms returning and finding Burroughs at her house, so Burroughs and Woods left.
Burroughs and Woods arrived at the Déjà Vu, and Hossack and Feltz-Patelzick came about two hours later. Woods stated he and Burroughs had a few beers; Burroughs testified they "nursed" their beers while waiting for the two women. When the women arrived, Burroughs bought rounds of beers and tequila shots for the group. Burroughs brought $900 in cash to the club. He tucked away $600 and believed Hossack had seen the money.
Burroughs testified he and Hossack were "kissing and hanging out" at the Déjà Vu. Woods testified the pair did not fight or argue at the club. However, Burroughs seemed somewhat upset and confused.
Hossack and Feltz-Patelzick stayed at the club for an hour or two. Hossack left because she was concerned about leaving her son with Delarm. Hossack told Burroughs she would call him and he could come over after Delarm left. Burroughs and Woods stayed at the club and had a few more beers.
Burroughs called Hossack on her cell phone about an hour after she left the Déjà Vu. Hossack said she was not at home yet and asked if she could borrow money for rent. Hossack returned to the club, met Burroughs in the parking lot, and immediately asked him, "You got the money?" Burroughs told Hossack he would not give her $600 in the parking lot but would give her the money when he came to her house. Disappointed, Hossack told Burroughs she wanted him to come over and promised to call him when Delarm left.
Burroughs and Woods left the Déjà Vu and returned to their apartment. Both described themselves as "legally" intoxicated when they left. Burroughs said he was "tipsy" but not drunk, having consumed three beers and two shots of tequila.
Burroughs called Hossack, found out Delarm was still there, and decided to walk over. As he walked, Burroughs called Hossack several more times. A man answered one of the calls. Burroughs believed it was Delarm but later learned it was Golden. Burroughs told the man he needed to leave and that he was a "wife beater." The man uttered an expletive and hung up.
Prior to Burroughss arrival, Thornton, Golden, and Goldens teenage son, Rocky, arrived at Hossacks house. Hossack, Feltz-Patelzick, and Delarm were there when they arrived. The phone rang several times. According to Thornton, Hossack and Burroughs had been dating only a short time, and "they" told Burroughs not to come over. Golden was told that if the person who had been calling showed up at the house, he should "do something about it."
The Incident
When Burroughs arrived at Hossacks house, he saw Hosssacks silver car in the driveway and Thorntons pickup truck parked in front. Golden sat in the truck. As Burroughs approached, Golden asked him why he had been rude on the phone.
According to Burroughs, the pair exchanged words as Burroughs walked up to the house. Golden suddenly grabbed a gun out of the truck. Someone at the front door of the house said something, and as Golden turned to look, Burroughs knocked the gun out of his hand. As the pair struggled, Burroughs hit Golden and then ran down the street.
Golden testified that Burroughs arrived at Hossacks house yelling obscenities. Golden described Burroughs as determined, angry, and smelling of alcohol. However, Golden, who had met Burroughs previously, did not anticipate having any problem with him. Golden told Burroughs to go and "sleep it off." Burroughs continued cursing and threatened to fight Golden. Golden told Burroughs he was not involved in the problems between Hossack, Delarm, and Burroughs.
Golden testified that, as he walked back to the truck, Burroughs jumped him from behind. The pair fought, but Golden denied having a gun. Thornton came out of the house and helped Golden fight off Burroughs. Burroughs got up and walked down the street.
Burroughs came back toward the house, and Thornton chased him away. At one point, both Delarm and Thornton chased Burroughs down the street. Golden testified neither he, Burroughs, nor Thornton had a gun or knife.
Rocky, Goldens son, testified that when he went outside he saw his father and Burroughs fighting. Rocky tried but failed to break up the fight. Rocky went back inside and got Thornton; he denied telling Thornton he saw a gun.
Rocky testified Thornton went outside and began fighting with Burroughs. Rocky did not see Burroughs with a knife but assumed he had one. Burroughs and Thornton stopped fighting, and Burroughs walked away, "talking his stuff." Rocky did not see Burroughs return. Hossack and Delarm left the house and drove away in Hossacks car.
Thornton testified that Rocky ran into the house yelling for help because his father was being beaten. Thornton ran out of the house and pulled Burroughs off of Golden. Burroughs charged at Thornton, who hit him. Thornton told Burroughs to leave, and Burroughs ran down the street.
Burroughs returned to the house, and Thornton heard someone yell "Gun." Hossack, Delarm, Feltz-Patelzick, and Rocky stood on the porch. Thornton did not see Burroughs with a gun. Just in case Burroughs was armed, Thornton got a gun out of his truck, held it in front of him, and ordered Burroughs to leave. Burroughs again left.
Thornton threw the gun into the front seat of the truck and told Hossack to get in her car and leave. Thornton told Hossack that Burroughs was drunk and would not give up and go away. Hossack got into the drivers seat of her car; Delarm got into the passenger seat. Burroughs returned to the house and Thornton again chased him away.
Burroughs testified that as he ran away from Hossacks house, Thornton hit him on the side of the head. Burroughs and Thornton rushed at one another without throwing any punches. Burroughs told Thornton: "[I]f you want to throw [punches], Ill throw, but I got no problems with you. Im just wanting to get outta here." Thornton left. Burroughs testified he did not run toward Hossacks house acting like he had a gun.
As Burroughs turned and walked away down the sidewalk, Hossacks car struck him from behind. Burroughs testified he did not hear the sound of a cars screeching tires before he was hit, nor did he jump into the street to avoid being hit. The car knocked Burroughs to his knees. He tried to stand, but his injured right leg prevented him from doing so. Burroughs was up against a wall as Hossacks car backed up and hit a tree. The car then moved forward toward him. As Burroughs tried to avoid being hit by crawling into a flower bed, Hossack drove her car into him again, striking his left leg. When the car backed up, Burroughs pulled himself into the flower bed. Burroughss leg was bloody and he could not stand.
Hossack stopped the car and Delarm got out. Delarm repeatedly stabbed Burroughs, who lay in the flower bed. Delarm told Burroughs: "You dont know who youre dealing with, youre dead."
As Delarm twice attempted to stab Burroughs in the chest, Burroughs fended off the blows with his arm. After Hossack screamed "Get in the car, get in the car," Delarm ran to the car and Hossack "peel[ed] out" in reverse and drove away.
Burroughs tried unsuccessfully to lift himself out of the flower bed. After he called 911 on his cell phone, officers arrived. Burroughs denied he told officers that he was looking at Hossack when she hit him; instead he testified he did not see Hossack until he was lying in the flower bed.
Thorntons testimony revealed a different scenario surrounding the car incident. After Thornton chased Burroughs away, Burroughs threatened to return with a "buddy." Thornton described Burroughs as drunk and angry about Delarms relationship with Hossack.
Immediately before the car hit Burroughs, as he and Thornton faced each other, Brandy yelled, "Look out." Thornton heard tires screeching and jumped away. Burroughs tried to run but stepped off the curb into the path of Hossacks car.
According to Thornton, Hossack drove her car onto the sidewalk, hitting Burroughs and trapping him between the car and the wall. Burroughs flipped onto the cars hood, and the car hit the wall. The car backed up and Burroughs slid off the hood into the flower bed. Thornton testified Hossack looked "panicked."
Thornton walked past Burroughs, telling him not to come back. As he walked away, Thornton saw Delarm get out of the car and walk toward Burroughs with his hands in his pockets.
Shortly afterward, Hossack and Delarm drove by Hossacks house and Hossack asked, "My God, what do I do?" When Thornton returned to the house he told Golden that Burroughs "got messed up."
Officers arrested Thornton for weapons possession after locating multiple guns, knives, and swords in his car. Thornton testified he never saw Burroughs armed with a knife or gun during the incident. He did see black tire marks in the street the next day.
What the Neighbors Saw and Heard
That evening, Hossacks neighbor, Albert Nessen, heard shouting outside. Nessen saw a man being chased down the street by two men. The men were shouting and running; one of the pursuers was naked. As Nessen called 911, he heard the sound of screeching tires. The next morning he noticed black tire marks across the sidewalk in front of his driveway.
Thornton testified he ran out of the house naked.
Another of Hossacks neighbors, Julie Baker, testified that loud yelling awoke her the evening of the incident. As she looked out her window, Baker saw a group of men and women standing on the porch and in the driveway of Hossacks house. She saw two men fighting and then one of the men ran down the street. The second man, who was naked, chased the man down the street. The naked man returned to the house, and Baker believed she later saw him, clothed, outside the house.
Baker saw two people get into a silver car that had been parked in Hossacks driveway. Because the driveway was blocked by a truck, the car drove across a lawn and "peeled out" of the neighbors driveway. The car sped down the street and out of sight. Baker later saw tire marks on the sidewalk. Baker also called 911.
What Officers Found
Stockton Police Officers Glenn Spitzer and Todd Orlando arrived at Hossacks house at 11:48 p.m. Spitzer heard a cry for help coming from about a block away. The two officers found Burroughs inside an elevated planter box, screaming in extreme pain. Burroughss arm and leg were injured. Spitzer did not smell alcohol on Burroughs, nor did Burroughs appear to be under the influence of alcohol. Burroughs immediately told the officers that Hossack and Delarm had "run him over" and Delarm stabbed him. Burroughs told Spitzer that he had looked Hossack in the eye as she ran him over.
Nessen called 911 at 11:42 p.m. Baker called 911 at 11:43 p.m.
Spitzer went to Hossacks house and saw a pickup blocking the driveway. Spitzer saw a black automatic pistol on the trucks passenger seat. A subsequent search uncovered a second pistol and two rifles in the truck. Hossack and Delarm were not at home, but the officers interviewed other people at the scene.
Spitzer observed very visible tire marks on the front lawn that crossed the sidewalk and went down the street. The planter where the officers found Burroughs was damaged, and the wall behind the planter was bloodied. Spitzer did not see any "brake marks or skidding marks" on the street or sidewalk near the planter.
Stockton Police Officer Anthony Perry arrived shortly after Spitzer and Orlando and unsuccessfully searched for the silver car, which had been described to police as gray. Dovie McCusker, Hossacks stepmother, arrived at Hossacks house and told Perry that Hossack had borrowed her car around midnight. Perry followed McCusker to her house, where she received a phone call from Hossack. Perry spoke with Hossack, who sounded "normal." Perry heard a male voice in the background, and Hossack said she would be at the house in 15 minutes. Although Perry waited an hour, Hossack never appeared.
Perry drove around the block and found Hossacks car parked on the corner. The front end was damaged and there appeared to be blood on the hood.
McCusker and Perry located McCuskers car, which Hossack had borrowed, parked on a different street. The car was unlocked and the keys were on the seat.
Stockton Police Officer Gordon Gray, a major collision investigator, reviewed the crime reports, photographs, and measurements taken at the scene and took the measurements of a 1996 Honda Civic. Gordon believed both of Hossacks tires had been on the sidewalk when it hit the wall. Gray also testified a car would not have to drive onto the sidewalk to avoid a car parked on the street.
Burroughss Injuries
Officers Spitzer and Orlando spoke with Burroughs in the emergency room. Burroughs appeared to be under the influence of pain medication and could not answer questions.
Blood drawn from Burroughs about an hour after the incident revealed he had a blood alcohol content of .19 percent. Further tests revealed Burroughs had no illegal drugs in his system.
Dr. John Dowbak, an orthopedic surgeon, examined Burroughs the morning after the incident. Burroughs had multiple lacerations to his right arm, right leg, and knee. He also sustained a severe fracture to his right tibia. Burroughs had a three-inch stab wound to his right thigh, a two-inch laceration to his right knee that severed an artery in his right leg, a two-inch stab wound to his right leg, lacerations to his right arm consistent with defensive wounds, a laceration on his right buttock, and a 15-inch circumferential wound to his right knee.
All the lacerations were consistent with knife wounds. The circumferential wound to the right knee was consistent with either a knife wound or a crush injury. Dr. Dowbak was extremely concerned about the tibial fracture, which left the bone poking through the skin near Burroughss right knee.
Based on the injury to Burroughss arteries, Dr. Dowbak classified Burroughs as having a grade 3C injury, meaning there was a 40 percent possibility that Burroughss leg would have to be amputated. After many surgeries, Dr. Dowbak was no longer concerned about possible amputation. However, Dr. Dowbak believed Burroughs would always have difficulty walking even after the multiple surgeries.
At the time of trial, Burroughs had 15 staples in his leg. Because of his injury, he needed a cane to walk, and he had to halt his efforts to become an electrician.
A few days after the incident, Stockton Police Investigator Michael Townes spoke with Burroughs in the hospital. Burroughs, hooked to an IV and in pain, was nevertheless coherent and able to speak with Townes. Burroughs told Townes about the incident and stated he did not know why Hossack ran him over.
Hossack After the Incident
Hossacks ex-husband, David Hossack, testified he spoke with her a few days after the incident. She called him and told him she was moving back to French Camp. When David asked why, Hossack replied: "Well, looks like Im going to be going back to jail." David later realized French Camp is where the jail is located.
To avoid confusion, we will refer to David Hossack by his first name.
Hossack told David she had an accident, abandoned her car, and ran away. When David encouraged her to turn herself in, Hossack said she had hit someone and was afraid the person she hit might lose his leg. Hossack then chuckled and said, "Its okay, he has another one." Hossack did not say whom she had hit.
Burroughs testified that Hossack called him at the hospital after the incident. Hossack asked Burroughs, "You dont think I meant to do this on purpose, do you?" Burroughs responded that Hossack had run into him twice and drove Delarm away after the incident. Hossack told Burroughs she had been screaming for him, not Delarm, to get into the car.
Hossack told Burroughs she wanted to visit him but feared arrest. Burroughs encouraged her to turn herself in to the police.
Hossack called Burroughs again the following day, told him she loved him, and asked, "You dont really believe I did that to you[?]" Burroughs said he did not believe she acted unintentionally and again told her to turn herself in. Hossack sent plants and get well cards to the hospital.
When Hossack called again the following day, Burroughs again encouraged her to turn herself in and told her the police were looking for her. Hossack called several more times, but Burroughs hung up on her.
Prior Incidents Between Delarm and Burroughs
About two weeks after Burroughs and Hossack started dating, Burroughs met Delarm at Hossacks house. Delarm rushed into the house and pushed Burroughs against a couch. He told Burroughs to leave and stay away from his son. Burroughs told Delarm he was not going to leave and that he did not know what he was talking about.
Delarm grabbed a cleaver and a butcher knife from the kitchen and again told Burroughs to leave. Burroughs refused, and Delarm ordered Hossack to tell Burroughs to leave or he would "cut him up." Hossack told Burroughs to leave and assured him she would be all right. "Freaked out" by Delarm, Burroughs left.
The next day, Burroughs accompanied Hossack to a location where she was to pick up her son from Delarm. When Delarm arrived, he told Burroughs, "Im gonna get you, you punk." Burroughs saw Hossack and Delarm having an "exchange." When Hossack returned to the car, she said: "Hes putting hands on me. I may need your help." Hossack returned to talk to Delarm while Burroughs watched from the car.
Delarm suddenly grabbed Hossack by the throat and started choking her. Burroughs got out of the car and told him to stop, and Delarm rushed at Burroughs. As the two fought, Burroughs got Delarm in a headlock and Delarm agreed to stop fighting. After Burroughs let him go, Delarm got a cordless drill from his car and ran toward Burroughs with the drill whirling.
Burroughs managed to disarm Delarm, who returned to his car and brought out a box cutter. Hossack offered Burroughs a baseball bat from the cars trunk, but Burroughs declined. Delarm made slicing motions toward Burroughs, but did not cut him. Burroughs and Hossack left. Hossack later reported both incidents to the police.
Delarm later threatened Burroughs over the phone. Burroughs believed he could handle Delarm, and he and Hossack continued to see each other on a regular basis. Burroughs believed they had a good relationship.
The Defense Case
Hossack did not testify. Hossacks landlord testified the streets in the neighborhood where Hossack lived are narrow. He stated it could be "pretty tight" to drive through if a car is parked on the street. Although parking is prohibited on one side of the street, cars often park on the other side.
Some time before the incident, Hossack contacted her landlord and asked for a recommendation for car repair. Her car had been damaged. Hossacks father testified he repaired a crack on the cars back bumper prior to the incident.
Officer Spitzer testified Burroughs told him at the scene: "I looked her in the eyes and she ran me over." Spitzer saw tire marks at the scene that started on the street and went onto the curb near the planter. He did not notice any damage to a tree near the planter.
Officer Orlando testified he attempted to interview Burroughs the day after the incident. Burroughs was "a little bit delirious" and groggy. Burroughs told Orlando he got into an argument with Delarm, who then followed him down the street and stabbed him. He also told Orlando that Hossack had driven off the road and ran into him on the sidewalk.
Hossacks sister, Melissa Butcher, testified she met Burroughs the weekend before the incident. She thought Burroughs was nice and very much in love with Hossack. Burroughs told Butcher that he would stab Delarm if he ever saw him around Hossack again.
Butcher previously told a defense investigator that she thought Burroughs was obsessive and odd around Hossack. Hossack told her Burroughs would not leave her alone, and she needed a break.
The Aftermath
The jury found Hossack not guilty of attempted murder but guilty of the lesser offense of attempted voluntary manslaughter and guilty of assault with a deadly weapon. As to both offenses, the jury found Hossack personally inflicted great bodily injury. As to the manslaughter count, the jury found Hossack personally used a nonfirearm weapon (a car).
The jury found Delarm guilty of attempted murder and assault with a deadly weapon. As to both offenses, the jury found Delarm personally inflicted great bodily injury. As to the attempted murder count, the jury found Delarm personally used a nonfirearm weapon (a knife).
The court sentenced Hossack to eight years in state prison and sentenced Delarm to 13 years. Both filed timely notices of appeal.
DISCUSSION
HOSSACKS APPEAL
1. Discrimination in Jury Selection
Hossack contends the trial court erred finding she had failed to make out a prima facie case of purposeful discrimination by the prosecution during jury selection. According to Hossack, the facts gave rise to an inference of purposeful discrimination. We disagree.
Background
During jury selection, Hossack objected under Batson/Wheeler after the prosecutor exercised her sixth peremptory challenge to excuse an African-American juror, prospective juror Tinsley. Tinsley had remained in the jury box while the prosecutor exercised her four prior peremptory challenges.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler) and Batson v. Kentucky (1986) 476 U.S. 79 (Batson).
During a hearing on the motion, defense counsel stated: "I just want the record to reflect that Ms. Tinsley is an African-American juror who looks to be middle age . . . . [¶] There was nothing about her facial expressions or her face or anything that would indicate shes not going to be fair in this matter. [¶] She seems to be very well dressed. I think she indicated that she had four years of college. She indicated that she could be fair. [¶] [T]heres nothing about her that would suggest shes not going to pay attention or isnt observant of whats going on. Theres nothing about her I think that would indicate she would be a bad juror and wouldnt be fair and listen to the evidence and fairly weigh both sides."
The court asked defense counsel to focus on establishing a prima facie case for discrimination, facts demonstrating a "reasonable likelihood that the People are exercising their challenges in a discriminatory fashion." Defense counsel responded: ". . . I was trying to indicate . . . that shes African-American. [¶] Theres nothing that I can decipher from the way that shes answered the questions and the way that shes acted in court, theres nothing that I could decipher why the prosecutor — other than her being African-American — why the prosecutor would want to kick her off the jury."
In response, the prosecutor stated she did not believe there was a prima facie case of discrimination. According to the prosecution, prospective juror Tinsley "was just very difficult to engage. Her answers . . . I couldnt get very many answers. I didnt think the defense got too many answers out of her, either. I just didnt feel like she would participate in the jury process. [¶] She never took her purse off her lap the whole entire time. It was kind of like she was ready to go."
The trial court requested that the prosecutor focus on the defenses showing. The prosecutor stated: "[T]he fact she was black made no difference to me at all. I think theres other black people on the jury that havent been kicked off . . . that did not factor into my decision whatsoever that she was an African-American."
The trial court determined the defense had failed to make a prima facie case: "Unless Im wrong — and Im open to correction here, because I dont really — and I probably should, but I dont really keep track of the races of the jurors. I try to remember them but — I really probably should write them down, but I dont. [¶] I believe that the People have now used six challenges and I believe that Tinsley is the only African-American they have challenged. They have challenged people all over the scale, all over the continuum here, with regard to their racial background. [¶] . . . [¶] Theres just nothing to indicate here that theres any conceivable basis for a prima facie challenge. Theres just nothing to indicate — and Tinsley was the sixth challenge that the People made here . . . I think she was passed over a couple of times by the People. [¶] So, theres just nothing to indicate that there is a prima facie case at this point, so that challenge is denied."
After the parties exercised more peremptory challenges, the court stated two African-American prospective jurors remained on the panel. The court observed the prosecutor "obviously passed both of those people a couple times and theyre still on the jury. So that is a factor that if anybody is — anybody viewing this they should take into consideration with respect to whether or not theres a prima facie case here." Those two African-Americans were ultimately seated as jurors.
Discussion
The use of peremptory challenges to remove prospective jurors because of their race or gender violates the federal and state Constitutions. Courts follow a three-step process when presented with a claim of improper discrimination in the exercise of peremptory challenges. First, the complaining party must make out a prima facie case of invidious discrimination. Second, the party exercising the challenge must state nondiscriminatory reasons for the challenge. Third, the trial court must decide whether the complaining party has proved purposeful discrimination. (People v. Jurado (2006) 38 Cal.4th 72, 104.)
In the present case, the trial court instructed defense counsel to focus on those facts that demonstrated a prima facie showing of bias. The court described this standard as a "reasonable likelihood that the People are exercising their challenges in a discriminatory fashion." (Italics added.) However, "a prima facie case of discrimination can be made out by offering a wide variety of evidence, so long as the sum of the proffered facts gives `rise to an inference of discriminatory purpose. [Citation.]" (Johnson v. California (2005) 545 U.S. 162, 169 , fn. omitted, italics added.)
The People concede that the trial courts imposition of a reasonable likelihood standard is more stringent than the standard of the existence of facts giving rise to an inference of discriminatory purpose. Both parties agree that since the trial court utilized an inappropriate standard, we independently review the record of the voir dire to determine whether defendant established a prima facie case of discriminatory purpose. (People v. Avila (2006) 38 Cal.4th 491, 553-554 (Avila).)
Our review of the record does not support an inference that the prosecutor excused prospective juror Tinsley on the basis of her race. Tinsley was the sixth prospective juror excused, and the first and only African-American prospective juror excused by the prosecution. While defendant need not show a pattern of impermissible exclusion to draw an inference of group bias, the prosecutions excusing of one African-American juror when two others remained does not support an inference of discriminatory purpose. (People v. Bonilla (2007) 41 Cal.4th 313, 343.)
Nor was the prosecutions questioning of Tinsley cursory or materially different from the questioning of non-African-American jurors. (Bonilla, supra, 41 Cal.4th at p. 343.) The prosecution questioned Tinsley about a variety of issues, including assessing the credibility of witnesses and applying the Peoples burden of proof.
The prosecutor stated she excused prospective juror Tinsley because she was "difficult to engage" and it did not appear she would "participate in the jury process." Defendant argues nothing in the record supports the prosecutions assertion that Tinsley was difficult to engage. However, the prosecutions conclusion that Tinsley appeared unwilling to participate in the deliberative process was a valid reason for excusing her. It is permissible to excuse prospective jurors because they look nervous or tired, or appear unable to relate to the prosecutor. (People v. Johnson (1989) 47 Cal.3d 1194, 1217-1218.)
In addition, our review of the record reveals other race-neutral reasons for the prosecution to excuse prospective juror Tinsley. Tinsley agreed that a police officer "might be biased" in assisting the prosecution. This possible bias, Tinsley opined, might cause the officer to have "tunnel vision" and prevent the officer from seeing the big picture. The prosecution could well have excused Tinsley based on her view that an officers bias could impact his or her investigation of a crime.
Defendant argues the prosecution failed to cite Tinsleys specific responses in explaining why she exercised her challenge against the prospective juror. According to defendant, it is reasonable to infer that Tinsleys responses to particular questions were not part of the reason for the challenge. We disagree.
In evaluating whether the record supports an inference that the prosecutor excused a juror on the basis of race, we examine the entire record, not just the responses of the parties during the Batson/Wheeler motion. (People v. Gray (2005) 37 Cal.4th 168, 186.) Here, the record does not provide evidence sufficient to permit the court to draw an inference that discrimination occurred.
2. Motion for a Mistrial
Hossack argues the trial court erred in denying her motion for a mistrial after her ex-husband testified she had previously served time in jail. The People contend no abuse of discretion occurred and the challenged testimony was admissible to show Hossacks consciousness of guilt. We find no error.
Background
The People filed a motion in limine seeking to introduce facts underlying Hossacks prior misdemeanor conviction, in which she "stabbed another man in the chest after arguing with him over money," to show her intent in the present case. The motion also sought to introduce evidence of three misdemeanor convictions for impeachment purposes should Hossack testify at trial.
The defense filed a motion in limine that no reference "be made to the fact of the alleged prior convictions, or of other alleged criminal conduct not forming a basis for any charge herein, during the course of the trial." In addition, the defense requested that no evidence of Hossacks prior felony convictions be admitted for impeachment purposes. The defense asked that witnesses be admonished regarding evidence ruled inadmissible.
The court ruled the evidence of the facts surrounding Hossacks prior misdemeanor conviction for assault was inadmissible under Evidence Code section 1101, subdivision (b). In addition, the court excluded evidence of any misdemeanor convictions for impeachment purposes and granted the defense request that witnesses be admonished regarding the courts rulings.
During his testimony, Hossacks ex-husband David testified about a phone call with Hossack a few days after the incident. Hossack told David she was in trouble and had an accident in her car.
The prosecutor asked: "When she was talking to you about what has happened, can you describe the tone of her voice? [¶] A. Um, I dont know how to describe it. Just . . . it was kind of normal really. [¶] The first thing she said was . . . `Im moving back to French Camp. [¶] And again I was like, `Moving back to French Camp? [¶] Q. Why did that strike you as odd? [¶] A. Because I knew she just recently moved to Stockton . . . . I thought, `Why are you moving to French Camp? [¶] Then she says, `Well, looks like Im going to be going back to jail. [¶] Q. Okay. [¶] And when she said that did you know what she was talking about? [¶] A. No. Then she told me that shed had the accident, she left the car and left is what she told me."
The prosecutor subsequently asked David: "But when you were talking to her, why did you suggest she turn herself in if she made it sound like it was just an accident? [¶] A. Just for the simple reason that shes been in trouble before and she said she ran away and left the car there. [¶] . . . [¶] And I said, `Thats not good, you know. Shes been in trouble before. And I thought, `Youre just going to make things worse if you dont go . . . and turn yourself in or talk to the police about what happened. [¶] Thats what I meant."
Defense counsel moved for a mistrial, arguing Davids testimony violated the courts in limine ruling and admonishment to the witnesses. Defense counsel noted: "Not only did Mr. Hossack testify that — and I didnt object because I didnt want to bring attention to it on the record in front of the jury — but that [defendant] Hossack had been in trouble before and so he was telling her to turn herself in. But, in fact, it seemed like the prosecutor was trying to bring out of him more information about her past conduct. [¶] And my understanding is — in limine we did address this, it wasnt a boilerplate in limine motion. [¶] And my understanding is that the Court ruled that all of the prior stuff regarding [defendant] Hossack was to be inadmissible. And the Court ruled that the prosecutor was supposed to admonish witnesses about evidence thats been ruled inadmissible. [¶] And, so, Im going to move for a mistrial at this point."
The trial court denied the motion. Defense counsel did not request any admonition regarding Davids testimony.
Discussion
A motion for a mistrial should be granted when a partys chances of receiving a fair trial have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 283.) A witnesss volunteered statement can provide the basis for a finding of incurable prejudice. Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court possesses considerable discretion in ruling on mistrial motions. (Avila, supra, 38 Cal.4th at p. 573; People v. Williams (1997) 16 Cal.4th 153, 211.) We review the trial courts ruling on a motion for a mistrial under the abuse of discretion standard. (People v. Bolden (2002) 29 Cal.4th 515, 555.)
We find no such abuse of discretion in the present case. The prosecution questioned David about a phone call from Hossack in which she described being in trouble and being in a car accident. In the process of describing the call, David expressed surprise that Hossack said she was returning to French Camp. Hossack told him, "looks like Im going to be going back to jail." David also stated Hossack had "been in trouble before."
Davids fleeting references to Hossacks statements about going "back" to French Camp and "back" to jail does not rise to the level of incurable prejudice requiring a mistrial. The prosecution did not "elicit" the testimony as Hossack suggests. Instead, David, in describing the phone call, relayed Hossacks statements. Hossacks brief and rather vague references to a prior jail stay did not improperly emphasize any criminal disposition on her part.
We find the present situation distinguishable from the triad of cases on which Hossack relies. In People v. Allen (1978) 77 Cal.App.3d 924, the court erred in denying a mistrial. A witness volunteered that the defendant was "on parole and he couldnt stand another beef." (Id. at p. 934.) The case was extremely close and the defendants parole status was irrelevant to the issues at trial. (Id. at pp. 938-939.)
In People v. Roof (1963) 216 Cal.App.2d 222, a police officer intentionally disregarded the prosecutions admonition and testified the defendant told him about previous criminal activity. (Id. at pp. 224-225.) The officers statement deprived the defendant of the only defense he had in a close case, and the court reversed the defendants conviction. (Id. at pp. 226-227.)
Finally, in People v. Ozuna (1963) 213 Cal.App.2d 338, the prosecutor intentionally elicited testimony from a police officer that the defendant told him he was an ex-convict. (Id. at pp. 339-340.) The defendants status was irrelevant to the issues at trial, and the officers testimony was a calculated attempt to show the defendants criminal disposition. (Id. at pp. 341-342.) The appellate court reversed the conviction.
Here, the gist of Davids testimony obliquely and fleetingly referred to Hossacks "return" to jail. The evidence was not intentionally elicited, nor was it completely irrelevant to the issues at trial. The jail references arose when David testified about a conversation with Hossack a few days after the crime, a conversation that was relevant as to Hossacks state of mind. Her gloss on the events was certainly closely related to whether or not she purposely aimed her car at Burroughs. We find no error in the trial courts denial of Hossacks mistrial motion.
3. Sufficiency of the Evidence in Support of Attempted Voluntary Manslaughter
Hossack challenges the sufficiency of the evidence in support of her conviction for attempted voluntary manslaughter. Hossack argues the evidence is insufficient to show she intended to kill Burroughs or that she aided and abetted Delarms attempt to kill Burroughs.
When reviewing a challenge to the sufficiency of the evidence, we determine from the entire record whether a reasonable trier of fact could have found that the prosecution had sustained its burden of proof beyond a reasonable doubt. We consider the evidence in the light most favorable to the judgment and presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. We also apply these standards in cases in which the prosecution relies largely on circumstantial evidence. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206 (Ochoa); People v. Mincey (1992) 2 Cal.4th 408, 432; People v. Rodriquez (1999) 20 Cal.4th 1, 11.)
If the verdict is supported by substantial evidence, we give due deference to the trier of fact and do not substitute our evaluation of a witnesss credibility for that of the fact finder. If the verdict is supported by reasonable, credible, and solid evidence, we must affirm the conviction. (Ochoa, supra, 6 Cal.4th at p. 1206; People v. Barnes (1986) 42 Cal.3d 284, 303-304.)
Hossack challenges the evidence supporting her conviction for attempted voluntary manslaughter. Attempted voluntary manslaughter requires proof of an intent to kill. (People v. Montes (2003) 112 Cal.App.4th 1543, 1549-1550.) Since there is rarely direct evidence of a defendants intent, intent is usually derived from the circumstances of the attempt, including the defendants actions. (People v. Smith (2005) 37 Cal.4th 733, 741.)
In disputing the evidence of her intent to kill, Hossack attempts to minimize Burroughss testimony that she ran over him twice. She claims no other evidence supported his version of events, and other testimony and physical elements cast doubts on Burroughss testimony. According to Hossack, "It follows that no rational factfinder could have credited this testimony." We disagree.
Hossack puts more credence in Thorntons version of events, in which he claimed Burroughs stepped off the curb in the direction of the oncoming car. She also questions the severity of the injury to Burroughss left leg, which he claimed was injured when Hossack hit him the second time. Again, we do not substitute our evaluation of a witnesss credibility for that of the jury. Burroughss testimony, that Hossack hit him once with her car, backed up, and hit him again, provided reasonable, credible, and solid evidence of Hossacks intent to kill.
Hossack also argues that even if one could infer she hit Burroughs twice, "hitting someone with a car at a very slow rate of speed is fundamentally different from shooting a bullet at them — there is no rational basis from which to infer an intent to kill rather than an attempt to disable." Intentionally hitting someone with a car, regardless of the rate of speed, and then hitting him again as he tries to crawl away provides evidence of an intent to kill on the part of the driver. No guns are necessary; a mass of steel with the potential of crushing a human body is sufficient. Sufficient evidence supports the attempted voluntary manslaughter conviction.
4. Defense of Others Instruction
Hossack contends the court erred in refusing to instruct on the defense of others. The People argue the trial court correctly found insufficient evidence to support the instruction. The trial court properly refused to give the instruction.
Background
Defense counsel requested an instruction on defense of others, based on evidence that Burroughs and Thornton had been fighting just before Hossack struck Burroughs with her car. The court denied Hossacks request, noting such an instruction "would mean you would have to argue that your client intentionally ran him down." In addition, the court found insufficient evidence to support the instruction.
Defense counsel argued she could argue inconsistent theories and claimed the evidence was sufficient to support the instruction. The court noted defense counsels objection, but stated it would "save [her] from having to make this decision" and refused the instruction. The court did instruct on the defense of accident. (CALCRIM No. 3404.)
Discussion
A trial court must instruct on a defense only if it appears the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense, and the defense is not inconsistent with the defendants theory of the case. (People v. Barton (1995) 12 Cal.4th 186, 195.) If substantial evidence of a defense inconsistent with the defense advanced by the defendant exists, the court should give the instruction on the alternative defense if the defendant requests it. (People v. Elize (1999) 71 Cal.App.4th 605, 615.)
A defendant acts in defense of another if he or she reasonably believed someone else was in imminent danger of suffering bodily injury, the defendant reasonably believed the immediate use of force was necessary to defend against the danger, and the defendant used no more force than was necessary to defend against the danger. (CALCRIM No. 3470.)
Hossack argues evidence at trial established she acted out of a desire to protect Thornton when she struck Burroughs with her car. She contends Burroughs showed up at her house drunk and belligerent and began fighting with Thornton. There was confusion as to whether Burroughs was armed with a knife or gun during the battle.
According to Hossack, "There was evidence that [Burroughs], squared off to fight with [Thornton], may have been pulling something from his pocket just moments before he was hit by the car, and that [Thornton] thought he was going for a gun." A reasonable person could conclude, defendant contends, that Burroughs posed a serious danger and defendant swerved toward Burroughs to prevent his imminent assault on Thornton.
However, a defendant acts in lawful defense of another only if the defendant uses no more force than is necessary to defend against that danger. (CALCRIM No. 3470.) Regardless of whether Hossack reasonably believed Thornton was in danger of being harmed by Burroughs, no evidence suggests that, in response, Hossack "used no more force than was reasonably necessary to defend against that danger." (Ibid.) Instead, Hossack hit Burroughs with her car. As Burroughs, injured and unable to stand, tried to crawl away Hossack hit him again.
Hossack attempts to minimize her reaction, arguing the only evidence she hit Burroughs twice is Burroughss own testimony. Hossack claims Burroughss blood alcohol level and his contradictory testimony at trial as to whether or not he looked her in the eye cast doubt upon his version of events. We disagree. Burroughs testified Hossack hit him once, backed up, and hit him again. Hossack hit him the second time as he attempted to crawl into the flower bed for safety. No witness contradicted Burroughss version of events.
A jury instruction need not be given whenever any evidence is presented, no matter how weak. Instead, the defendant must present evidence sufficient to deserve consideration by the jury, evidence from which a reasonable jury could conclude the particular facts underlying the instruction did exist. (People v. Strozier (1993) 20 Cal.App.4th 55, 63.) Hossack failed to present such evidence, and the trial court did not err in denying the instruction.
5. Failure to Properly Instruct on Elements of Weapons Use Enhancement
Hossack challenges the jurys finding on the weapon use enhancement, arguing the court failed to fully instruct on the elements of the enhancement. The People respond that any omission in the instruction was harmless beyond a reasonable doubt.
Background
The court instructed the jury with a modified version of CALCRIM No. 3145, explaining the elements of the enhancement: "If you find the defendant guilty of the crimes charged or the lesser crime of attempted manslaughter, you must then decide whether for each crime the People have proved the additional allegation that the defendant personally used a deadly or dangerous weapon during the commission or attempted commission of that crime. [¶] You must decide whether the People have proved this allegation for each crime and return a separate finding for each crime. [¶] `A deadly or dangerous weapon is any object, instrument or weapon that is inherently deadly or dangerous or one that is used in such a way that it is capable of causing and likely to cause death or great bodily injury. [¶] In deciding whether or not it is a deadly weapon, consider all the surrounding circumstances, including when and where the object was possessed, and where the person who possessed the object was going, and whether the object was changed from its standard form or any other evidence that indicates whether the object would be used for a dangerous, rather than a harmless purpose. [¶] And again `great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that any allegation has not been so proved."
In modifying CALCRIM No. 3145, the trial court deleted the language: "Someone personally uses a deadly [or dangerous] weapon if he or she intentionally does any of the following: [¶] [1.] Displays the weapon in a menacing manner(./;) [¶] [OR] [¶] [2. Hits someone with the weapon(./;)] [¶] [OR] [¶] (3/2). Fires the weapon.]" (CALCRIM No. 3145.)
Discussion
Hossack argues the trial courts instruction failed to inform the jury that in order to find the enhancement true, it must find Hossack intentionally used a deadly or dangerous weapon. The People concede the deficiency in the instruction, but argue reversal is not required because the factual question omitted from the courts instruction was resolved unfavorably to Hossack based on other instructions given and the jurys verdict.
In order to find "true" a section 12022, subdivision (b) allegation, a jury must conclude that during the crime the defendant intentionally displayed in a menacing manner or struck someone with an instrument capable of inflicting great bodily injury or death. (People v. Wims (1995) 10 Cal.4th 293, 302.) A trial courts failure to instruct the jury on the requisite factual findings requires reversal of the enhancement unless the prosecution can prove beyond a reasonable doubt that the error did not contribute to the jurys verdict. (People v. Sengpadychith (2001) 26 Cal.4th 316, 324-325.)
Here, the jury convicted Hossack of attempted voluntary manslaughter and found that in the commission of the offense Hossack "personally used a car, within the meaning of Penal Code section 12022(b)(1)." The jury instructions stated that in order to find Hossack guilty of attempted voluntary manslaughter, the prosecution must prove (1) the defendant took at least one direct but ineffective step toward killing a person, and (2) the defendant intended to kill that person. In addition, the instructions informed the jury that Hossack could not be found guilty if she "acted or failed to act without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty unless you are convinced beyond a reasonable doubt that [she] acted with the required intent."
We assume jurors are capable of understanding and correlating the instructions given. (People v. Mills (1991) 1 Cal.App.4th 898, 918.) The courts instructions required the jury to find beyond a reasonable doubt that Hossack acted intentionally, not accidentally, when she attempted to run down Burroughs. The jury found that in attempting to kill Burroughs, Hossack personally used a car. The jury, in finding Hossack guilty of attempted voluntary manslaughter, rejected the defense argument that Hossack accidentally ran over Burroughs. Given the instructions and the jurys verdict, any error in failing to instruct the jury that in order to find the section 12022, subdivision (b)(1) enhancement true, it must find Hossack intentionally used a deadly weapon was harmless beyond a reasonable doubt.
6. Reasonable Doubt Instruction
Hossack contends the trial court erred in failing to define reasonable doubt, rendering it reasonably likely the jury applied a constitutionally deficient standard of proof based on the prosecutions statements during closing argument. We are not persuaded.
Background
In its oral instructions to the jury, the trial court omitted the definition of reasonable doubt. The court instructed: "The defendants have pled not guilty to the charges. The fact that a criminal charge has been filed against the defendants is not evidence that the charge or charges is or are true. You must not be biased against the defendants because they have been arrested or charged with a crime or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime or allegation beyond a reasonable doubt. [¶] Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise, which I mentioned the other instruction, previous instruction. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty." (CALCRIM No. 103.)
The trial court provided a written copy of CALCRIM No. 103, which contained the omitted definition of reasonable doubt. The written instruction stated: "Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt."
Discussion
Hossack concedes that the trial courts inadvertent failure to define reasonable doubt does not necessarily constitute federal constitutional error. The concession is appropriate. While "[t]he beyond a reasonable doubt standard is a requirement of due process, . . . the Constitution neither prohibits trial courts from defining reasonable doubt nor requires them to do so as a matter of course." (Victor v. Nebraska (1994) 511 U.S. 1, 5 .) It is sufficient that "`taken as a whole, the instructions [must] correctly conve[y] the concept of reasonable doubt to the jury." (Ibid., quoting Holland v. United States (1954) 348 U.S. 121, 140 .) Hossack argues the courts failure to define reasonable doubt combined with erroneous statements by the prosecutor on the meaning of the term made it reasonably likely that the jurors applied a constitutionally deficient reasonable doubt standard.
As we have already noted, the jury was instructed on the prosecutions obligation to prove its case beyond a reasonable doubt. Although the court inadvertently omitted the definition of reasonable doubt in orally instructing the jury, the jurors received the complete instruction in written form. The misreading of an instruction does not warrant reversal if the jury received the correct written instruction. We presume the jurors were guided by the correct written instruction. (People v. Prieto (2003) 30 Cal.4th 226, 255; People v. Osband (1996) 13 Cal.4th 622, 687.)
Hossack argues the trial court in the present case failed to inform jurors they were required to read or follow the written instructions. However, prior to orally instructing the jury the court stated: "Now . . . ladies and gentlemen, I must now instruct you on the law that applies to this case. I will give you a copy of the instructions to use in the jury room, but I have to read them to you before we do that." The court informed the jury they were to use these written instructions — in other words, to refer to them during deliberations.
The subject of reasonable doubt was raised by counsel during voir dire and closing argument. During voir dire, the prosecution misstated the standard when she told prospective jurors, "you can have some doubt when you convict, it just has to be reasonable." Defense counsel corrected the prosecutions error: "Im going to assume that [the prosecutor] misspoke earlier when she was talking about a reasonable doubt. . . . If you have a doubt, you have to assess the nature of that doubt. [¶] . . . [¶] And if you decide that when youre looking at the basis for that doubt that its reasonable, then the question is all over, the verdict is not guilty because the prosecution has not proved their case beyond a reasonable doubt."
Later the prosecutor stated that reasonable doubt meant the jurors had to have "an abiding conviction for whatever you decide. You have to walk out of the courtroom and not feel like you made the wrong decision. Thats basically what reasonable doubt is." During closing argument, the prosecution noted that although defense counsel might argue the reasonable doubt standard was a very difficult standard to meet, it was not.
Taken in their totality, it is not reasonably likely the jury would have taken these comments as lessening the burden of proof required in order to convict Hossack. The prosecutors various comments never directly undermined the requirement that the jury find Hossack guilty beyond a reasonable doubt. Instead, the prosecutor commented on various ways of considering the evidence presented at trial, none of which vitiated the need to find Hossack guilty beyond a reasonable doubt. In addition, the court instructed: "You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys comments on the law conflict with my instructions, you must follow my instructions on the law." It is not reasonably likely that the jury would have understood these comments as allowing it to convict Hossack under a different, less strenuous standard of proof.
DELARMS APPEAL
Delarm argues the courts imposition of the upper term violated his constitutional rights and defense counsels failure to raise the issue constituted ineffective assistance of counsel. We will conclude that Delarms criminal history authorized imposition of the upper term.
Delarm also joins in Hossacks claims of instructional error on the concept of reasonable doubt and the prosecutions burden of proof, which we addressed ante.
Background
The presentence probation report recommended Delarm be sentenced to state prison. In support, the report found numerous circumstances in aggravation, including that Delarms prior convictions were numerous and of increasing seriousness, Delarm was on probation when the crimes were committed, and Delarms prior performance on probation was unsatisfactory.
The report detailed Delarms criminal history. In 2001 Delarm was convicted of misdemeanor assault with a deadly weapon or by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and placed on three years probation. In 2002 Delarm was convicted of misdemeanor possession of a controlled substance (Health & Saf. Code, § 11377) and placed on three years probation. In January 2003 Delarm was convicted of misdemeanor intentionally and knowingly violating a court order (Pen. Code, § 273.6) and placed on three years probation. Later that year, Delarm was convicted of misdemeanor assault with a deadly weapon (Pen. Code, § 245, subd. (a)) and misdemeanor child endangerment (Pen. Code, § 273a, subd. (b)), placed on probation, and ordered to serve 60 days in jail.
The probation report noted that while in jail for the current offenses, Delarm was the subject of 12 incident reports for disobeying rules, refusing to obey staff, being under the influence, and unruly behavior.
The court sentenced Delarm to the upper term of nine years for attempted murder. The court noted Delarm had been on probation when he committed the current offenses and was ineligible for probation. In addition, the court found Delarms conduct more serious than Hossacks, making the upper term appropriate. The court stated: "[T]his victim was in a particularly vulnerable condition, and it was a cowardly, vicious act for Mr. Delarm here to attack this fellow after his leg had been broken, he was bleeding to death, lying totally disabled on the sidewalk. To stab him with a knife and stab him repeatedly was a cowardly, vicious, and extremely brutal act. So the Court is going to find it is unusually brutal, unusually cruel, and is going to justify the upper term on that basis."
Discussion
In Cunningham v. California (2007) 549 U.S. ___ (Cunningham), the United States Supreme Court held that Californias determinate sentencing law "violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments" to the extent the law allows a judge to impose an upper term sentence "based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant." (Id. at p. ___ .)
However, the California Supreme Court has determined that "imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions." (People v. Black (2007) 41 Cal.4th 799, 816 (Black).) In addition, "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 [v. New Jersey (2000) 530 U.S. 466] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial." (Black, at p. 812.)
Here, Delarms criminal history, including the fact that he was on probation when he committed the current offenses, made him eligible for the upper term. The trial court relied on Delarms probation status in denying probation, and "the same fact may be used both to deny probation and to support the imposition of an upper term sentence." (Black, supra, 41 Cal.4th at p. 817.) Although the trial court did not cite Delarms criminal past or probation status in selecting the upper term, they are "legally sufficient aggravating circumstance[s] . . . justified based upon the defendants record of prior convictions." (Id. at p. 816.) Delarms recidivism made him eligible for the upper term.
Defendant Delarm argues People v. Cardenas (2007) 155 Cal.App.4th 1468 compels a different result. In Cardenas, the court found Black did not establish that "the mere fact one or more prior convictions repose, unnoticed or disregarded by the trial court, in the probation report is enough to make the defendant `eligible for a high term sentence . . . ." (Id. at p. 1482.) Here, the prior convictions were neither unnoticed nor disregarded by the trial court. The court relied on Delarms probation status in denying probation and did not reject or ignore Delarms record.
DISPOSITION
The judgments as to defendants Hossack and Delarm are affirmed.
We concur:
SCOTLAND, P.J.
MORRISON, J.