Opinion
F066779
08-27-2014
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH ANTHONY JARAMILLO, Defendant and Appellant.
Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. F12905397)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Fresno County. Arlan L. Harrell, Judge. Sylvia Whatley Beckham, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
Before Cornell, Acting P.J., Gomes, J., and Detjen, J.
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A jury convicted appellant, Joseph Anthony Jaramillo, of infliction of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a); count 1) and assault with a deadly weapon (§ 245, subd. (a)(1); count 2), and found true enhancement allegations that in committing the count 1 offense, appellant personally used a deadly weapon (§ 12022, subd. (b)(1)) and that in committing both offenses, he personally inflicted great bodily injury under circumstances involving domestic violence (DV) within the meaning of section 12022.7, subdivision (e). In a separate proceeding, the court found true allegations that appellant had suffered a prior conviction that qualified as both a "strike" and as a prior serious felony conviction (§ 667, subd. (a)).
All statutory references are to the Penal Code.
We use the term "strike," in its noun form, as a synonym for "prior felony conviction" within the meaning of the "three strikes" law (§§ 667, subds. (b)-(i), 1170.12), i.e., a prior felony conviction or juvenile adjudication that subjects a defendant to the increased punishment specified in the three strikes law.
The court imposed a prison term of 19 years, consisting of the four-year upper term on count 1, doubled pursuant to the three strikes law (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)), for a total of eight years; the five-year upper term on the accompanying DV great bodily injury enhancement; one year on the accompanying weapon use enhancement; and five years on the section 667, subdivision (a) prior serious felony enhancement. On count 2, the court imposed, and stayed pursuant to section 654, an eight-year term on the substantive offense and a term, the length of which the court did not specify, on the DV great bodily injury enhancement.
Appellant's appointed appellate counsel has filed an opening brief which summarizes the pertinent facts, with citations to the record, raises no issues, and asks that this court independently review the record. (People v. Wende (1979) 25 Cal.3d 436.) Appellant, apparently in response to this court's invitation to submit additional briefing, has submitted two supplemental briefs, dated September 10, 2013, and September 16, 2013, respectively, in which he makes various claims which we address below. We will modify the judgment to correct the court's oversight in failing to specify a term for the count 2 DV great bodily injury enhancement, and in all other respects affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Facts
A. The Instant Offense
Lanette Acuna testified to the following: At approximately 4:00 p.m. to 5:00 p.m. on May 12, 2012 (May 12), she was at her apartment located near Mayfair and Normal, with her adult son, Shawn Kelly, when she heard yelling outside. Her front door was open and the screen door was closed, and looking through the screen door, she saw appellant and Sonia Rocha. Appellant was yelling, "Bitch, I'm going to cut you," and it appeared Rocha was trying to get away from him. Rocha had picked up a chair at some point and she was trying to use it to fend off appellant, and in doing so, she fell to the ground. At that point, appellant removed a knife from his pocket, leaned down and stabbed Rocha in her left leg. Appellant then took a few steps back, said "I cut you, bitch," and ran off. Shortly thereafter, Acuna called 911.
Acuna was shown a photograph and she testified it showed the woman she saw with appellant outside her apartment. Subsequently, Rocha's 13-year-old son, in his testimony, identified the photograph as being that of his mother.
Kelly testified that on May 12, he saw a man outside his mother's apartment stabbing a woman in the leg, as the woman was lying on the ground, after she had tried to push the man away with a chair. When asked if knew whether the attacker was in the courtroom, he responded, "No, I do not."
Joshua M. (Joshua) testified to the following: He is 13 years old, his mother is Sonia Rocha, and in May 2012, he was living in an apartment with his mother, appellant, appellant's son-in-law, whose name is David, and David's wife and children.
One night in May 2012, Joshua was in the living room of the apartment with his mother, who was sleeping, when appellant entered the room and told Rocha to "get up." Rocha and appellant went into one of the bedrooms, at which point Joshua heard "screaming, hitting." When asked if appellant and Rocha were arguing about "[appellant] leaving [Rocha] for another woman," Joshua answered "Yes."
David and his wife entered the bedroom and appellant and Rocha "started calming down for a little bit." However, "it started all over again." Appellant and Rocha left the apartment, and Joshua, who was then in the living room, again heard screaming. At some point thereafter, appellant and Rocha returned. Joshua saw appellant, whose "hand [was] covered in blood," put something metal in his pocket. Appellant said he had "cut" Rocha.
Fresno Police Officer Cassandra Stevens testified that at approximately 5:00 p.m. on May 12, in response to a police dispatch report, she went to the area of Mayfair and Normal, where she made contact with Rocha, who was bleeding from an injury to her upper left thigh.
Appellant testified to the following on direct examination: He did not assault Rocha with a knife on May 12. On one occasion, while appellant and Rocha were at appellant's house in Pinedale, the two argued about appellant "being with" another woman, Virginia Esparza. During this argument, the following occurred: Rocha "came at" appellant with a knife, and cut him as he "blocked it." In addition, Rocha attempted to "slap" and "hit" appellant, threatened to kill him, Esparza and herself, and threw a bottle at appellant.
On May 12, Rocha did not brandish a knife at appellant. On that date, he saw that she had received an injury to her leg. Rocha "told [appellant] she cut it in a swimming pool."
On cross-examination, appellant testified to the following: He was engaged in a sexual relationship with Rocha in May 2012 and the two had lived together "[o]n and off." They were not living together, when, on May 12, appellant went to Rocha's house to help her move and to have sex with her. There was blood "all over the front porch," and Rocha "said she cut it in the swimming pool." The two argued, after Rocha asked appellant where he had been. Thereafter, appellant left and walked the approximately four-to-five mile distance to his sister's house in Clovis, where he spent the night. He returned to Rocha's house the next day, but she was not there. She had gone to the hospital.
Appellant was "[r]eally, really under the influence" of alcohol on May 12. As a result, he was "mess[ed] up so [he] can't remember."
B. Prior Conviction
It was established by documentary evidence admitted at the bifurcated portion of the trial on the prior serious felony enhancement and strike allegations that appellant had suffered a conviction in 1988 of assault with a deadly weapon (§ 245, subd. (a)), with enhancements for, inter alia, personal infliction of great bodily injury (§ 12022.7) and personal use of a firearm (§ 12022.5).
Procedural Background
Appellant was sentenced on February 14, 2013. Immediately prior to sentencing, appellant moved for an order appointing substitute counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118, and the court conducted a hearing and denied the motion.
At sentencing, defense counsel asked the court to strike appellant's strike, on the grounds that it had occurred more than 20 years previously, and that a 19-year prison term "is an awful long time for someone of [appellant's] age." The court denied the request.
Appellant was 58 years old at the time of sentencing.
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DISCUSSION
Appellant's Contentions
Appellant argues prosecution witnesses testified falsely in various respects, he never had a knife, and Shawn Kelly was unable to identify him as the attacker. These claims, in effect, constitute a request that we reweigh the evidence. This we will not do.
In reviewing a judgment of conviction or true finding on an enhancement allegation, "the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—evidence that is reasonable, credible and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Kraft (2000) 23 Cal.4th 978, 1053.) "Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact." (People v. Young (2005) 34 Cal.4th 1149, 1181.) We resolve neither credibility issues nor evidentiary conflicts. (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
Accordingly, we will not accept appellant's invitation to reweigh the evidence. Appellant's convictions and the true findings on the weapon use allegations were supported by substantial evidence. Therefore, reversal is not warranted.
Appellant also argues, as best we can determine, that he was denied his due process rights because, he asserts, Virginia Esparza was not allowed to testify. However, although Esparza did not testify, there is nothing in the record to support the claim that she was not allowed to do so. Therefore, we reject this claim. (People v. Barnett (1998) 17 Cal.4th 1044, 1183 ["review on a direct appeal is limited to the appellate record"].)
Finally, appellant argues that Rocha, though under subpoena, did not appear at trial, and therefore, appellant "was denied the right to face his accuser." (Unnecessary capitalization omitted.)
The relevant procedural background to this claim is as follows: During the hearing on pretrial motions, the prosecutor informed the court that although Rocha was "currently under body attachment," he did not know her whereabouts and was uncertain as to whether he would be able to "bring her into court." When the hearing on pretrial motions continued the next day, defense counsel moved for a continuance, stating, "[appellant] has indicated to me that it is his desire to have the chief complaining witness, who is apparently not available, available." Defense counsel asked the prosecutor if he (prosecutor) had secured Rocha's presence, and the prosecutor answered that he had not. Defense counsel confirmed, in response to a question by the court, that "[Rocha] has already been subject to a personally-served subpoena and ... there is an outstanding body attachment." The court then denied the defense request, stating: "Unfortunately, there is not much that the Court can do to require a witness who has been personally served and who is apparently failing to appear to cause that person to miraculously appear. That is not a basis for a continuance."
We interpret appellant's argument as claims that the court, in denying the defense request for a continuance, (1) abused its discretion and (2) denied appellant his rights under the Confrontation and Due Process Clauses of the United States and California Constitutions. These claims are without merit.
"The granting or denial of a continuance during trial traditionally rests within the sound discretion of the trial judge. [Citations.] To establish good cause for a continuance, defendant had the burden of showing that he had exercised due diligence to secure the witness's attendance, that the witness's expected testimony was material and not cumulative, that the testimony could be obtained within a reasonable time, and that the facts to which the witness would testify could not otherwise be proven. [Citations.]" (People v. Howard (1992) 1 Cal.4th 1132, 1171 (Howard).)
Under this standard, appellant failed to establish good cause for a continuance. It appears from the record it was the prosecution, not the defense, who subpoenaed Rocha. Appellant made no showing that he exercised any diligence in seeking to secure Rocha's attendance, nor has he made any showing of any of the other factors required to establish good cause. And for these same reasons, appellant has failed to demonstrate any constitutional violation. (See Howard, supra, 1 Cal.4th at p. 1172.)
Sentencing Error
We note, as indicated earlier, that the court imposed the five-year upper term on the count 1 DV great bodily injury enhancement, but in imposing sentence on count 2, the court stated, "The eight-year term [on the count 2 substantive offense] will be enhanced under Penal Code section 12022.7[, subdivision] (e) for the great bodily injury in the context of domestic violence," but did not specify the length of the term. We also note the abstract of judgment does not indicate any term imposed for the count 2 DV great bodily injury enhancement. Given the court's imposition of the five-year upper term on the same enhancement in count 1, it is clear the court's failure to specify the same term on count 2 was an oversight. We will modify the judgment accordingly and direct the court to prepare an amended abstract of judgment indicating the imposition of this term, which, along with the remainder of the count 2 sentence, the court stayed pursuant to section 654.
Independent Review of the Record
Following independent review of the record, we have concluded that no other reasonably arguable legal or factual issues exist.
DISPOSITION
The judgment is modified to provide that a term of five years was imposed on the Penal Code section 12022.7, subdivision (e) enhancement found true in connection with count 2, and that that term is stayed pursuant to Penal Code section 654, along with the eight years imposed on the count 2 substantive offense. The trial court is directed to prepare an amended abstract of judgment reflecting this modification and to forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.