Opinion
C080688 C080692
01-22-2018
THE PEOPLE, Plaintiff and Respondent, v. NATHAN VAUGHN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 14F05088, 11F03415)
These consolidated appeals challenge judgments entered against defendant Nathan Vaughn in two related cases (Nos. 13F02636 and 14F05088).
In case No. 13F02636, defendant was convicted by jury of violating a protective order prohibiting him from having contact with S., his estranged wife. (Pen. Code, § 273.6, subd. (a).) Defendant failed to appear in court on the date scheduled for the preliminary hearing in that case and led police officers on a high-speed chase when they executed a bench warrant for his arrest. On the basis of that conduct, in case No. 14F05088, he was convicted by jury of failure to appear (Pen. Code, § 1320.5) and evading a pursuing peace officer while driving with willful or wanton disregard for the safety of persons or property (Veh. Code, § 2800.2). In a bifurcated proceeding, the trial court found defendant committed the latter crime while he was out of custody on bail in case No. 13F02636. (Pen. Code, § 12022.1.) Defendant also admitted an allegation he was previously convicted of a strike offense within the meaning of the three strikes law. (Pen. Code, §§ 667, subds. (b)-(i), 1170.12.) That strike offense was a 2011 assault with a deadly weapon conviction, for which he was granted five years formal probation. Because evading a pursuing peace officer violated the terms of his probation, the trial court also revoked that grant of probation.
Defendant was also charged with making a criminal threat (Pen. Code, § 422) and stalking (Pen. Code, § 646.9, subd. (b)), and further alleged to have been previously convicted of a serious felony offense (Pen. Code, § 667, subd. (a)), qualifying as a strike within the meaning of the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). He was acquitted of these charges, making it unnecessary to render a finding with respect to the enhancement allegations.
Defendant was sentenced to serve an aggregate determinate prison term of seven years four months (six years for failure to appear - upper term sentence of three years, doubled), plus a consecutive term of one year four months for evading a pursuing peace officer (one-third the middle term) in case No. 14F05088, plus a consecutive jail sentence of 364 days for violating the protective order in case No. 13F02636.
A three-year prison term for the 2011 assault with a deadly weapon conviction was also imposed and ordered to run concurrently with the sentence imposed in case No. 14F05088; the out-on-bail enhancement of two years was imposed and stayed.
On appeal, with respect to case No. 13F02636, defendant contends: (1) the trial court prejudicially abused its discretion and violated his federal constitutional rights by admitting evidence of the 2011 assault with a deadly weapon; and (2) the trial court also prejudicially abused its discretion and further violated his constitutional rights by admitting evidence of prior acts of domestic violence against S. With respect to case No. 14F05088, defendant contends: (3) the trial court abused its discretion in imposing an upper term sentence for the failure to appear conviction.
We affirm. As we explain, evidence of the 2011 assault with a deadly weapon was properly admitted under Evidence Code section 1101, subdivision (b), and evidence of prior acts of domestic violence was properly admitted under section 1109. The trial court did not abuse its discretion in determining the probative value of this evidence was not substantially outweighed by any of the statutory counterweights set forth in section 352. Nor were defendant's federal constitutional rights violated by the admission of the evidence. Finally, the trial court did not abuse its discretion in imposing the upper term sentence for defendant's failure to appear conviction.
Undesignated statutory references are to the Evidence Code.
FACTS
We recite the facts of defendant's relationship with S., the 2011 assault with a deadly weapon, and the conduct charged in case No. 13F02636 from the record in that case, corresponding to appeal case No. C080692. The facts surrounding the conduct charged in case No. 14F05088 are drawn from the record in that case, corresponding to appeal case No. C080688.
Relationship Between Defendant and S.
Defendant and S. met sometime before 2006 and were married in March of that year. They lived in Sacramento for about a year before defendant was stationed in Hawaii as part of his military service with the Marine Corps. Defendant and S. had one child, J., who was born during this time period. In May 2007, while still living in Sacramento, defendant and S. went to a miniature golf course and got into an argument, during which defendant punched S. in the face. After briefly staying with her sister, S. and J. moved to Hawaii with defendant later that month. Violent incidents occurred in Hawaii as well. During one such incident, defendant made S. get into a closet with J. and forced them to remain there for about an hour. He also threw a baseball at S. and kicked her while wearing his boots, causing bruises. S. reported defendant's behavior to military officials, resulting in defendant spending some time in the brig at the Marine Corps base. At the end of 2007, while defendant was still in the brig, S. and J. returned to Sacramento and moved in with S.'s parents.
At some point after S. and J. left Hawaii, defendant was discharged from the Marine Corps and he returned to Sacramento as well. He and S. resumed their relationship, but no longer lived together. As S. explained, she was "in love with him" and "was willing to make it work if he was willing to change his ways." He did not do so.
Sometime in 2009, S. filed for dissolution of the marriage, but never completed those proceedings. Toward the end of that year, she also filed for a restraining order against defendant that she obtained in January 2010. Despite the existence of the restraining order, S.'s relationship with defendant continued in an on-again, off-again fashion.
In May 2011, defendant and S. were both at the same Mother's Day barbeque, although they were not together at the time. As S. explained during her testimony at trial, defendant wanted her phone for some reason. When she refused to give it to him, defendant tried to physically take it from her and bit both her arm and her hand while attempting to do so, causing bruising and bite marks. At this point, an acquaintance of S. intervened. This acquaintance, Y., testified that defendant "hit [S.] and he was continually hitting her," prompting Y. to get "into the middle of it" and pull S. away from him. At this point, according to both S. and Y., defendant grabbed a full bottle of liquor and hit Y. in the face with it, causing her to bleed profusely but fortunately resulting in no permanent damage. Defendant fled from the party before police were called to the scene. Based on this conduct, defendant was convicted of assault with a deadly weapon and granted five years formal probation.
Sometime after this incident, S. resumed her relationship with defendant, ending it one final time in late 2012 after an incident in which defendant "punched [her] repeatedly in the face."
Charged Conduct in case No. 13F02636
In case No. 13F02636, defendant was charged with making a criminal threat, stalking, and violating the above-mentioned restraining order based on conduct that occurred in 2013.
In February 2013, S. drove her car over to a friend's house. When she went outside to retrieve something from the car, she found defendant inside the car, looking through the glove compartment and center console. As she explained, defendant had a key to the car from the time they were together, but she did not give him permission to search through it. Nor did she know how he knew she was at her friend's house that day. S. did not approach the car while defendant was inside, but defendant left when he noticed she was looking at him.
The following month, defendant began calling S. and sending her text messages. S. notified the Sacramento County Sheriff's Department and began taking screenshots of the text messages she received between March and May 2013 to document defendant's violation of the restraining order. As S. described the text messages in their totality: "One second they were threats, next second they were, you know, trying to get back [together] with me and happy. So they went back and forth." Photographs of these screenshots were admitted into evidence. S. also testified to their content. Because defendant was ultimately acquitted of stalking and making a criminal threat, we dispense with a detailed recounting of their content. For our purposes, the following examples will suffice.
On March 23, 2013, defendant sent S. a text message saying: "I see you dressin' up at work. You look sexy." He then sent her another text message saying: "Don't get mad when I'm sitting in our car tonight waiting on you." The same day S. received those text messages, while she was at a friend's house, she went outside and again found defendant had let himself into her car. This time, he had opened the hood and was "messing around" in the engine compartment. S. used her cell phone to take photographs of defendant while he did so. Three days later, having concluded ignoring the text messages was not causing them to cease, S. responded to one of the messages by saying: "Stop text messaging me." This did not stop the text messaging either. In several subsequent messages, defendant demanded he be allowed to see their son, which was apparently prohibited by the restraining order. In one message, he said she would "hate life" if she "screw[ed him] from seeing [J.]" In another, defendant threatened to "stalk" her until he got to do so. The text messaging stopped during the month of April. When it resumed in May, the tone had become more threatening. One text message read: "I love you. I love [J.] I put that on my son. You are done for. Say by[e] to [J.]" Another said: "You thought your face got messed up that one time was bad, wait." The final text message admitted into evidence read: "On my way home, Bitch. You're dead. Watch out. Almost home. I hope it was worth your life. I'm back. Watch yourself."
Charged Conduct in case No. 14F05088
The preliminary hearing in case No. 13F02636 was scheduled for June 18, 2014. Despite having appeared previously in the matter, defendant failed to appear in court on that date. The trial court revoked the release on bail that had previously been granted. A bench warrant was issued and stayed until July 24, 2014. Defendant also failed to appear on the latter date, prompting the trial court to issue a new bench warrant for defendant's arrest.
The following day, around 12:00 p.m., Detectives Reali and Feil with the Sacramento County Sheriff's Department drove to defendant's mother's house in the Arden-Arcade area of Sacramento in search of defendant. They were driving in a dark blue unmarked Dodge Caravan equipped with a siren, forward-facing red and blue flashing lights located inside the vehicle above the rear view mirror, and alternating "wig-wag lights" on the front of the vehicle by the headlights. Detective Reali, who was the passenger, was wearing a vest with the Sheriff's Department insignia on the front and "Sheriff emblazoned on the back, standard uniform cargo pants, duty belt with gun and holster, and badge clipped to the belt. Detective Feil, the driver, was wearing "pretty much the same outfit." As they approached defendant's mother's house, defendant arrived in a gray Audi, parked along the street next to the house, and got out of the car. Feil parked next to defendant's driver's side door and turned on the red and blue flashing lights. Both detectives got out with their guns drawn as Reali yelled: "Sheriff's department. Step from the vehicle."
Rather than comply with the command, defendant got back in his car and drove away. The detectives got back in their vehicle and activated the siren and wig-wag lights as they followed in pursuit. The chase took them southbound on Eastern Avenue, eastbound on Marconi Avenue, southbound on Greenwood Avenue, and ended at the intersection of Greenwood and Hazelwood Avenues, where defendant's car crashed into a stop sign, drove a short distance across a front lawn, and then came to rest in the street. During the chase, defendant's car reached a top speed of about 60 miles per hour, "a little excessive" for the residential streets where he was driving, and crossed over into the oncoming lane of traffic at one point. When the car chase ended with the crash into the stop sign, defendant got out and fled on foot. The detectives stopped their vehicle next to defendant's car and continued their pursuit on foot, apprehending him a short distance away.
DISCUSSION
Case No. 13F02636
I
Admission of the 2011 Assault with a Deadly Weapon
Defendant contends the trial court prejudicially abused its discretion under sections 1101 and 352, and also violated his federal constitutional rights, by admitting evidence of the 2011 assault with a deadly weapon. We disagree.
With certain exceptions, "evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion." (§ 1101, subd. (a).) Subdivision (b) of this section provides: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact . . . other than his or her disposition to commit such an act." (Id., subd. (b).)
Here, evidence of the 2011 assault with a deadly weapon was not admitted to prove defendant's disposition to commit such an act, and the jury was so instructed. Rather, the evidence was admitted to prove elements of the charged crime of making a criminal threat. That crime requires proof of the following: "(1) that the defendant 'willfully threaten[ed] to commit a crime which will result in death or great bodily injury to another person,' (2) that the defendant made the threat 'with the specific intent that the statement . . . is to be taken as a threat, even if there is no intent of actually carrying it out,' (3) that the threat—which may be 'made verbally, in writing, or by means of an electronic communication device'—was 'on its face and under the circumstances in which it [was] made, . . . so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat,' (4) that the threat actually caused the person threatened 'to be in sustained fear for his or her own safety or for his or her immediate family's safety,' and (5) that the threatened person's fear was 'reasonabl[e]' under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
As the trial court observed in ruling evidence of the 2011 assault with a deadly weapon to be admissible under section 1101, subdivision (b): "I do believe that it is relevant to the victim's state of mind. That it goes to why she may be afraid of the defendant. That she was in sustained fear of the defendant. In addition, it goes to the defendant's intent that his statements be understood as threats." We agree with this assessment. Evidence defendant struck Y. in the face with a full bottle of liquor while she intervened in defendant's violent assault against S. was indeed relevant to elements (2) and (4) described above, i.e., defendant's intent in making the charged threats and whether S. was placed in sustained fear for her immediate safety. We also conclude the evidence was relevant to element (5), i.e., whether such fear was reasonable. (See People v. Fruits (2016) 247 Cal.App.4th 188, 203-204 [evidence of prior threats against the victim "relevant to and probative of whether defendant intended to make a threat, whether the charged threat caused [the victim] to be in sustained fear for her [or his] safety, and whether such fear was reasonable"]; see also People v. Wilson (2010) 186 Cal.App.4th 789, 808 [the victim's knowledge of the defendant's prior conduct is relevant in establishing the victim was in a state of sustained fear]; People v. McCray (1997) 58 Cal.App.4th 159, 172 [evidence of past violence against the victim was relevant to the defendant's intent to place the victim in fear and to whether the victim's fear was reasonable].) Accordingly, section 1101 was not violated by the admission of this evidence.
Nevertheless, defendant argues the evidence was not relevant to prove the charged threats placed S. in sustained fear because "[S.] had known [defendant] for over ten years. There is very little likelihood that this one impulsive act would scare her to a greater degree than the fear she suffered when the attacks and threats were against herself." This argument goes to the weight of the evidence, not its relevance. All that is required for the prior conduct to be relevant on this basis is that it be slightly more likely the charged threats placed S. in sustained fear if defendant struck Y. in the face with a full liquor bottle in S.'s presence than it would be had defendant not done so. (See § 210 [evidence is relevant if it has "any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action," italics added].) We conclude that standard is easily met.
With respect to defendant's intent to threaten, defendant argues People v. Scott (2015) 61 Cal.4th 363 requires a greater similarity between the prior crime and the charged crime to permit admission of the evidence to prove he intended the charged threats to be taken as such. Not so. In Scott, uncharged burglaries were admitted to prove defendant likely had the same intent in committing those burglaries that he had in committing the charged burglary. It was in that context our Supreme Court explained: " 'In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to the charged offense to support the inference that the defendant probably acted with the same intent in each instance.' [Citation.] ' "The inference to be drawn is not that the actor is disposed to commit such acts; instead, the inference to be drawn is that, in light of the first event, the actor, at the time of the second event, must have had the intent attributed to him [or her] by the prosecution." ' [Citation.]" (Scott, supra, 61 Cal.4th at p. 398.)
Here, in contrast, the prosecution did not seek to establish defendant likely had the same intent in assaulting Y. with the liquor bottle as he had in making the charged threats against S. two years later. Such a theory would be absurd, as defendant points out in his briefing on appeal. Instead, the theory of relevance was the fact defendant struck Y. in the face with the liquor bottle, which S. knew because she was there when he did so, made it more likely defendant intended his later statements to S. to be taken as threats. Such an act of violence committed by defendant against a third party, and known by the victim to have occurred, is "extremely relevant and probative" of defendant's intent to threaten. (People v. Garrett (1994) 30 Cal.App.4th 962, 967.)
We now turn to section 352 that provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." This provision "permits the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption," but also "requires that the danger of these evils substantially outweigh the probative value of the evidence." (People v. Lavergne (1971) 4 Cal.3d 735, 744; People v. Tran (2011) 51 Cal.4th 1040, 1047.) Here, as mentioned, the challenged evidence was highly probative of defendant's intent in making the alleged threats. Defendant's argument to the contrary notwithstanding, we also conclude the evidence was highly probative on the question of S.'s fear and whether or not such fear was reasonable. (See People v. Fruits, supra, 247 Cal.App.4th at p. 209 [evidence was "highly probative" on the issues of the defendant's intent, the victim's fear, and the reasonableness of that fear].) This high degree of probative value was not substantially outweighed by any of the statutory counterweights set forth in section 352. "Seldom will evidence of a defendant's prior criminal conduct be ruled inadmissible when it is the primary basis of establishing a crucial element of the charged offense." (People v. Garrett, supra, 30 Cal.App.4th at p. 967.)
Finally, "we also reject defendant's various constitutional claims. The routine and proper application of state evidentiary law does not impinge on a defendant's due process rights." (People v. Riccardi (2012) 54 Cal.4th 758, 809, abrogated on another point by People v. Rangel (2016) 62 Cal.4th 1192.)
The trial court did not abuse its discretion or violate defendant's constitutional rights by admitting evidence of the 2011 assault with a deadly weapon.
II
Admission of Prior Acts of Domestic Violence
Defendant also claims the trial court prejudicially abused its discretion under section 352 and further violated his federal constitutional rights by admitting evidence of prior acts of domestic violence against S. He is mistaken.
Another exception to section 1101's general prohibition against the admission of character evidence to prove conduct on a specified occasion is found in section 1109, subdivision (a)(1), that generally provides, "in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." This provision thus conditions the admissibility of evidence of uncharged acts of domestic violence to prove a defendant committed a charged offense involving domestic violence on a finding that the probative value of the evidence is not substantially outweighed by the danger of undue prejudice flowing from its admission. (See § 352.)
As defendant acknowledges in his briefing on appeal, our Supreme Court rejected a facial due process challenge to section 1108 that provides for a similar exception for evidence of a defendant's uncharged sexual offenses in a criminal action in which the defendant is accused of a sexual offense. (People v. Falsetta (1999) 21 Cal.4th 903, 914-915 (Falsetta); see also People v. Reliford (2003) 29 Cal.4th 1007, 1009 [upholding the constitutionality of the jury instruction on how to weigh evidence admitted under section 1108].) He also acknowledges the Courts of Appeal, including this court, "have rejected due process challenges to section 1109 using the reasoning of Falsetta," i.e., "that section 352 offers ultimate due process protection against a fundamentally unfair trial." (See, e.g., People v. Price (2004) 120 Cal.App.4th 224, 240; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1097; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1310; People v. Hoover (2000) 77 Cal.App.4th 1020, 1025-1029; People v. Johnson (2000) 77 Cal.App.4th 410, 416-420.) Nevertheless, to preserve the issue for federal review, defendant asserts, "Falsetta and Reliford are wrongly decided" and further argues section 1109 and CALCRIM No. 852, the jury instruction on how to weigh evidence admitted under that section, "are facially unconstitutional in that they permit the use of prior crimes as predispositional character evidence." We are bound by our Supreme Court's decisions in Falsetta and Reliford. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Nor are we inclined to reconsider our holding that the reasoning of Falsetta applies equally to section 1109. (See People v. Johnson, supra, 77 Cal.App.4th at pp. 416-420.) And based on Reliford, we have also previously rejected the assertion CALCRIM No. 852 violates a defendant's due process rights. (People v. Reyes (2008) 160 Cal.App.4th 246, 250-253.)
We also reject defendant's argument the trial court abused its discretion under section 352 and therefore admission of the evidence amounted to an as-applied violation of his due process rights. Again, section 352 "permits the trial judge to strike a careful balance between the probative value of the evidence and the danger of prejudice, confusion and undue time consumption," but also "requires that the danger of these evils substantially outweigh the probative value of the evidence." (People v. Lavergne, supra, 4 Cal.3d at p. 744.) This safeguard "ensures that the presumption of innocence and other characteristics of due process are not weakened by an unfair use of evidence of past acts." (People v. Harris (1998) 60 Cal.App.4th 727, 730; People v. Brown (2000) 77 Cal.App.4th 1324, 1334.)
"In the analogous context of evidence of a defendant's prior sex offenses governed by section 1108, our Supreme Court has explained how trial courts should evaluate such evidence under section 352: 'By reason of section 1108, trial courts may no longer deem "propensity" evidence unduly prejudicial per se, but must engage in a careful weighing process under section 352. Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant's other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.' " (People v. Disa (2016) 1 Cal.App.5th 654, 671, quoting Falsetta, supra, 21 Cal.4th at pp. 916-917.)
Here, in addition to being probative of defendant's propensity to commit violent acts against S., the challenged evidence was also highly probative of the same three elements of the crime of making a criminal threat as was the evidence of the 2011 assault with a deadly weapon discussed above, i.e., whether defendant intended to threaten S., whether S. was placed in sustained fear, and whether such fear was reasonable. Thus, the total probative value of the challenged evidence was very high. We conclude this probative value was not substantially outweighed by the danger the jury would, as defendant puts it, "give too much weight to the past uncharged acts." Those uncharged acts were not remote in time. The degree of certainty of their commission was also high, particularly with respect to the 2007 incident in Hawaii considering defendant spent time in the brig and was later discharged from military service. Nor was there a substantial likelihood of confusing, misleading, or distracting the jurors from their main inquiry given the highly probative nature of the evidence to that main inquiry, i.e., whether or not defendant committed the crime of making a criminal threat against S. Finally, none of the uncharged acts of domestic violence contained highly inflammatory details that would pose "an intolerable 'risk to the fairness of the proceedings or the reliability of the outcome.' " (People v. Waidla (2000) 22 Cal.4th 690, 724, quoting People v. Alvarez (1996) 14 Cal.4th 155, 204, fn. 14.)
The trial court did not abuse its discretion or violate defendant's federal due process rights by admitting the challenged evidence of prior acts of domestic violence committed against S.
Case No. 14F05088
III
Imposition of an Upper Term Sentence for Failure to Appear
Finally, we also reject defendant's assertion the trial court abused its discretion in imposing an upper term sentence for the failure to appear in case No. 14F05088.
A.
Additional Background
During the sentencing hearing in case No. 14F05088, the trial court imposed the upper term sentence for defendant's failure to appear conviction, explaining: "I have selected the upper term in this case after considering . . . the California Rules of Court rule 4.421 [and rule] 4.423 and the factors in aggravation that I find do apply are [rule] 4.421(b)(2), which is that he has prior convictions as an adult that are numerous and of increasing seriousness. [¶] In imposing sentence on the 11F case, the violation of probation, I am going to follow [the probation department]'s recommendation and give him concurrent time. So under [rule] 4.421(a)(7), he was convicted of other crimes for which consecutive sentences could have been imposed but for which concurrent sentence is going to be imposed, so that is a factor in aggravation. [¶] Turning back to [rule 4.421](b)(4), [defendant] was on probation when he committed the crime in the instant case. . . . [¶] . . . [¶] Then under [rule 4.421](b)(5), [defendant's] prior performance [on] Probation has not been satisfactory. In fact, I think it is probably safe to say it has been poor. [¶] In 2010 he was granted three years of misdemeanor probation for a [Penal Code section] 487 and a [Penal Code section] 166 charge. Then while on probation, he commits a strike offense in 2011 and he was also convicted of domestic violence. And then while he's on probation for the 2011 offense, he commits this offense. [¶] He is pending charges [in case No. 13F02636] against [S.], which is actually the same victim that was the subject of the domestic violence case . . . in 2011. [¶] As far as circumstances in mitigation, I understand that he has some mental issues that he's suffering from, apparently. But I actually don't believe that has any impact on the charges that we're discussing here, the failure to appear and evading the law enforcement officers. [¶] I don't see how that has any impact to this particular case."
Undesignated rule references are to the California Rules of Court.
B.
Analysis
A trial court is afforded "broad discretion" in sentencing decisions. (People v. Sandoval (2007) 41 Cal.4th 825, 847; see also Pen. Code, § 1170, subd. (b) ["When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court"].) The trial court's discretion "must be exercised in a manner that is not arbitrary and capricious, that is consistent with the letter and spirit of the law, and that is based upon an 'individualized consideration of the offense, the offender, and the public interest.' [Citation.]" (People v. Sandoval, supra, 41 Cal.4th at p. 847.) An upper term sentence may be based upon "any aggravating circumstance that the court deems significant . . . [and] 'reasonably related to the decision being made.' " (Id. at p. 848, quoting rule 4.408(a).) A single valid factor is enough to justify imposition of an aggravated term. (People v. Black (2007) 41 Cal.4th 799, 813; Cunningham v. California (2007) 549 U.S. 270 .)
Defendant argues the trial court's use of rule 4.421(b)(2) as a factor in aggravation is "not supported by the facts" because "failure to appear is not of increasing seriousness compared to the last offense, assault with a deadly weapon in 2011." And because, defendant argues, "all of [his] offenses arise out of his complicated relationship with [S.]," they are "not of increasing seriousness, [but] in fact all-of-a-piece." However, this aggravating factor requires only that "prior convictions as an adult or sustained petitions in juvenile delinquency proceedings are numerous or of increasing seriousness." (Rule 4.421(b)(2), italics added.) Notwithstanding the trial court's use of the word "and," either numerous convictions or increasingly serious convictions will suffice to support use of this factor. Thus, even if we were to accept defendant's argument with respect to increasing seriousness, ample evidence supports the trial court's conclusion defendant's prior convictions were numerous. Because only one factor in aggravation need be supported by substantial evidence to support the trial court's exercise of discretion in imposing an upper term sentence, we need not specifically address defendant's additional arguments on this issue. We do note, however, he does not even attempt to challenge the sufficiency of the evidence to support the trial court's use of rule 4.421(b)(4) and (5) that are also abundantly supported by substantial evidence defendant was on probation when he committed the crime and his prior performance on probation was unsatisfactory.
The trial court did not abuse its discretion in imposing an upper term sentence for the failure to appear conviction.
DISPOSITION
The judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
HULL, Acting P.J. /s/_________
NICHOLSON, J.
Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------