Opinion
B201984 x-ref B206180
10-30-2008
THE PEOPLE, Plaintiff and Respondent, v. JASON FRANK ALLEN, Defendant and Appellant.
Heather J. Manolakas, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Stephanie C. Brenan, Joseph P. Lee and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.
Not to be Published
Defendant Jason Allen appeals from his conviction of mayhem in violation of Penal Code section 203, with a finding of personal use of a dangerous weapon as described in section 12022, subdivision (b)(1), and of assault with a deadly weapon in violation of section 245, subdivision (a)(1), with a finding of having inflicted great bodily injury as described in section 12022.7, subdivision (a). He contends that the trial court erred by failing to stay his sentence for assault with a deadly weapon as required by section 654, by various incorrect and prejudicial evidentiary rulings, and by improperly using the elements of mayhem as aggravating factors to justify imposing a midterm sentence for mayhem. The Attorney General concedes, and we agree, that the court should have imposed but stayed the sentence for assault with a deadly weapon. As to Allens other contentions, we disagree and affirm.
All undesignated code section references are to the Penal Code.
BACKGROUND
In February 2007, Allen and his mother, sister, and grandmother were evicted from their apartment. The family vacated the apartment on February 21, 2007. Allen and codefendant George Gillen, who lived at the same apartment complex, moved the familys property to their new apartment or to storage using a truck Gillen had borrowed. That night, they left the truck loaded with items, planning to move them to storage the following day.
At approximately 7:00 the next morning, Azahel Covarrubias and Alan Jerome arrived at the apartment complex to begin cleaning up and repairing the familys former apartment. They parked their truck next to the truck holding the familys property, then entered the apartment and started working.
At approximately 1:00 p.m., Allen, Gillen, and Chris Bassett arrived at the apartment complex. They found that somebody had put an opened bag of cat litter in the back of Gillens truck, and that the litter had spilled over the truck bed and over some items.
At approximately the same time that Allen, Gillen, and Bassett arrived, Covarrubias and Jerome heard male voices making derogatory comments about Mexicans outside the apartment where they were working. From the apartments back porch, Jerome saw men throwing things at Covarrubias truck. He went out the front door to move the truck and encountered Allen, Gillen, and Bassett. Jerome told the men that he had put some toys in a plastic bag and put the bag in Gillens truck. The men thanked him. Jerome then got into Covarrubias truck and drove it to the front of the apartment complex. Using his cell phone, he called Covarrubias to explain why he was moving the truck.
As Jerome was driving away, Covarrubias exited the apartment carrying a can of spackle in one hand and a putty knife in the other hand. When he received Jeromes call, he put the putty knife in his back pocket with his right hand, got out his own cell phone, told Jerome to bring the truck back, and replaced his cell phone in his pocket. Covarrubias then confronted the three men.
Allen, standing several feet away, said, "`Fuck you, Mexican. Go back home." He and Bassett advanced toward Covarrubias. Bassett circled behind Covarrubias as Allen pushed Covarrubias, who dropped the can of spackle. Covarrubias pushed back with both hands. Allen then pulled a box cutter from his back pocket; Covarrubias saw the blade. Bassett hit Covarrubias from behind. Someone threw a bag of cat litter at Covarrubias, which blinded him. Covarrubias put his hands up in front of him to block further attacks. He felt knife cuts on his forehead and his cheek. He then felt blood on his right hand, the hand felt hot, and he could not move the fingers of that hand. At that moment, two men in a red truck who witnessed the incident shouted at the attackers to stop. Allen and Bassett then ran away. Covarrubias threw his putty knife after them. Jerome, who was driving back in Covarrubias truck and saw the red truck drive up and Allen and Bassett flee, chased them until they got into a car, then obtained the license plate number, make, and model of the car before it drove away. Jerome then returned to the scene of the incident, where he found Covarrubias badly cut and bleeding.
Glendora police officers responded to the crime scene. One officer spoke with Allen and Bassett. The officer saw no visible injuries on either of them, but took photographs of a minor scratch on Allens penis that Allen said occurred during the fight with Covarrubias. Allens shirt had a tear in it, and his sweatshirt had blood on it.
Covarrubias was taken to the hospital, where he received six stitches in his forehead, sixteen in his cheek, and four in his right hand. The wound in his cheek became infected and caused him to remain in the hospital for a week. He had surgery on his hand and was still receiving treatment for his injuries at the time of trial. He had no feeling in two of his fingers and had less strength in his injured hand. He also lost the use of a saliva duct in his cheek.
On May 3, 2007, the Los Angeles County District Attorney filed an amended information charging Allen with mayhem (§ 203) with a special allegation of personal use of a deadly weapon (§ 12022, subd. (b)(1)), and with assault with a deadly weapon (§ 245, subd. (a)(1)) with a special allegation of personal infliction of great bodily injury (§ 12022.7, subd. (a)). Allen pleaded not guilty to both counts and denied the special allegations.
At a jury trial during July 2007, Allen and Gillen, who is not a party to this appeal, were tried jointly. The prosecution presented testimony from Covarrubias and Jerome, as well as two of the police officers who responded to the crime scene and two neighbors who witnessed the attack on Covarrubias.
Covarrubias testified first and described how Allen had attacked him and stabbed him without provocation. Following Covarrubias testimony, during recross-examination of Covarrubias, Gillens defense counsel specifically asked Covarrubias about an apparent discrepancy in his testimony: at one point defense counsel asked Covarrubias whether he had seen a police officer pick up the putty knife at the crime scene, and Covarrubias said yes, but in response to a later question whether he saw anybody pick up the putty knife at the scene, he said no. Pressed on the point, Covarrubias said that he did not see anyone pick up the putty knife. Counsel asked, "So when you told me earlier, just a few minutes ago, that you saw a police officer pick it up, put in the evidence box, why did you say that?" Covarrubias answered, "Because thats what the police do." Counsel continued, "Are you guessing then that someone probably picked it up, put it in an evidence box?" Covarrubias answered, "Because its here now." Counsel then asked, "Mr. Covarrubias, do you understand the difference between knowing something and guessing at something?" Covarrubias answered, "Yes." Counsel pressed on, "If youre asked a question here, I ask you a question, you understand that you have to give the answer—" The court broke in, "Counsel, lets go to the next question." Counsel continued, "Next question is why one minute ago did you just lie to me in open court about seeing an officer pick up that piece of evidence?" The prosecutor objected—"Argumentative"—and the court sustained the objection. Gillens counsel then asked, "What reason would you have to not be truthful in court?" The court overruled the prosecutors objection. Covarrubias answered, "I just—I was bleeding, and I was passing out without a blood, and things—I couldnt remember." Counsel asked, "So that gives you an excuse to not be honest here in court?" The court broke in, "Counsel, I dont need the objection. Next question, please." Gillens counsel had no further questions for Covarrubias.
One of the two neighbors, David Madrigal, testified that he saw Allen advancing on Covarrubias as Covarrubias backed up defensively, with his hands in front of his face, as a third person who was not in court and looked like actor Johnny Depp (apparently Bassett) went behind Covarrubias carrying a big, black knife with a "wicked shape." Allen was carrying a bag of cat litter toward Covarrubias when a garage prevented Madrigal from seeing the three men further. Madrigal heard Covarrubias cry for mercy, then heard someone say, "`Lets get out of here. I just [inaudible] him." He then saw Allen and his companion run away rapidly. Madrigal went to render aid to Covarrubias.
The prosecutor asked Madrigal what Covarrubias told him when Madrigal came to his aid. Allens attorney objected on the ground of hearsay, and the court sustained the objection. The prosecutor then explained, "Prior inconsistent [sic] statement," and the court stated, "Overruled." We assume the prosecutor was relying on the "prior consistent statement" exception to hearsay. The prosecutor then asked whether Covarrubias identified the person who "sliced his face," and Madrigal stated that Covarrubias had indicated the "kid that lived here" (Allen), said Allen had stabbed him, then nodded toward a box-cutter lying on the ground. Madrigal also stated that Covarrubias was difficult to understand.
Based upon a later discussion between the court and counsel outside the jurys presence, we assume that either the prosecutor misspoke and said "prior inconsistent statement" when she meant to say "prior consistent statement," or else the court reporter incorrectly heard or reported "prior inconsistent statement" when the prosecutor actually said "prior consistent statement."
Another neighbor testified that she had a clear view of the incident, saw Allen kicking Covarrubias while holding a box cutter in his hand, and saw Allen "stabbing [Covarrubias] in the hands and in the upper torso [and] in the neck" while Covarrubias put his hands up defensively, palms out. Asked, "Did you actually see defendant Allen stab [Covarrubias] in the hand?" the neighbor answered, "Yes." The neighbor also stated that she had seen Bassett holding a longer, thinner knife and "stabbing [Covarrubias] like in the neck area and in the hands and in the upper body." She testified that she had not heard Covarrubias make any comments to his attackers nor seen him throw any punches, kick, or struggle.
The defense presented testimony from Gillen, Allen, and the driver of the red truck who helped to stop the attack on Covarrubias. Gillen testified that after Jerome drove away in Covarrubias truck, Covarrubias exited the apartment and said, "They are not going to do nothing to my mother fucking truck. Fuck them. Fucking assholes." Covarrubias and Bassett then verbally abused each other. Gillen started to walk away, then heard Bassett yell his name, turned around, and saw Covarrubias kick Allen in the groin and punch him in the face while holding a putty knife. Gillen saw no other weapons during the altercation.
Allen testified that Covarrubias emerged from the apartment angrily saying into his cell phone, "I dont give a fuck. Bring my truck back here right now." He was holding a spackle can and a putty knife. Covarrubias and Bassett began verbally abusing each other. Covarrubias approached Bassett in an aggressive manner. Allen told Covarrubias to leave Bassett alone. Covarrubias said that he would "kick [Allens] ass." Allen responded, "Fuck you." Covarrubias then advanced on Allen with the putty knife and threw the spackle at him. Allen, frightened, grabbed a box cutter from a box behind Gillens truck. Covarrubias punched Allen in the face, and when Allen raised his hands to block his face, Covarrubias kicked him in the groin, then threw more punches at him. Allen punched Covarrubias back, then began swinging wildly at him with the box cutter, in fear for his life and trying to escape from Covarrubias grasp. After the men in the red truck arrived and broke up the fight, Allen fled because he had been convicted earlier of a felony and was on probation. After the incident, Allen was covered in blood, his nose was bleeding, and his groin area was hurt. He initially told police that he did not have a weapon because he was afraid that the police would not believe that he only fought to defend himself.
In rebuttal, the prosecution offered the testimony of one of the investigating officers, who stated that Gillen had told him that Allen was the only person who was angry or used profanities before or during the altercation; that he had seen no bloody nose or other injuries on Allen; and that Covarrubias had said that he swung his putty knife at Allen and Bassett to fend them off as he was being stabbed.
On July 27, 2007, the jury found Allen guilty of both counts and found true all special allegations. On August 28, 2007, the court denied probation and sentenced Allen to five years in prison, based on the four-year midterm for mayhem plus a one-year sentence enhancement for personal use of a deadly weapon pursuant to section 12022, subdivision (b)(1). In selecting the midterm for mayhem, the court stated, "[I]n order for mayhem to actually be proven, there has to be, not only, in essence, an assault, but that the victim is disabled, which clearly Mr. Covarrubias was; there is an aspect of malice in depriving Mr. Covarrubias of his member of the body. And so just looking at the elements of mayhem, were looking at, unfortunately, a minimum of extremely horrific injuries. [¶] In no way do I think low term would be appropriate. So what Im struggling with is whether it should be midterm or upper term. My decision is that it be midterm." The court explained that because the record showed no planning, prior violence, or other aggravating factors beyond the injuries constituting mayhem themselves, it found the upper term inappropriate. The court also ordered the three-year midterm for assault with a deadly weapon to run concurrently and imposed but stayed a three-year sentence enhancement for infliction of great bodily injury pursuant to section 12022.7, subdivision (a). The court imposed various statutorily mandated fines and fees, retained jurisdiction regarding victim restitution, and credited Allen with 179 days in custody. Allen timely appealed.
DISCUSSION
I. Section 654
Allen contends that the court erred by imposing a concurrent sentence for assault with a deadly weapon. He maintains that the court was required to stay that sentence pursuant to section 654. Section 654, subdivision (a) provides, in pertinent part, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." The Attorney General concedes that the charges of mayhem and of assault with a deadly weapon alternately described the same criminal act, and that the trial court therefore should have imposed and stayed the sentence for assault with a deadly weapon. We agree.
II. Evidentiary Errors
A. Hearsay
Allen contends that the trial court erred prejudicially, and violated his Sixth and Fourteenth Amendment constitutional rights to a fair trial under the decision in Crawford v. Washington (2004) 541 U.S. 36, by allowing neighbor Madrigal to testify regarding Covarrubias statements immediately after the altercation with Allen and Bassett. Assuming for purposes of argument that the trial court erred by admitting inadmissible hearsay, we conclude that Allen suffered no prejudice.
"We need not determine the constitutional issues raised by appellant . . . if any claimed error by the trial court in admitting [Covarrubias] statements was harmless beyond a reasonable doubt, pursuant to Chapman v. California [(1967) 386 U.S. 18, 24]." (People v. Houston (2005) 130 Cal.App.4th 279, 295-296.) "`Under that test, "we must determine on the basis of `our own reading of the record and on what seems to us to have been the probable impact . . . on the minds of the average jury, [citation], whether [the hearsay was] sufficiently prejudicial to [defendant] as to require reversal." [Citations.] [Citation.]" (Id. at p. 296.) "The admission of cumulative evidence . . . has been found to be harmless error." (Ibid.)
Allen maintains that Covarrubias hearsay statements "supported the prosecutions theory that the attack on Covarrubias was unprovoked and was [sic] used to bolster Covarrubias testimony." We disagree. Covarrubias hearsay statements only provide evidence that Covarrubias believed that Allen had stabbed him and do not contradict Allens claim of self-defense. Even if they did, the evidence only would be cumulative to the non-hearsay testimony of the two independent witnesses (Madrigal and the other neighbor) and Covarrubias, who all stated that Allen attacked Covarrubias and that Covarrubias acted defensively. Accordingly, we conclude that even if improperly admitted, the hearsay was not prejudicial.
B. Limiting Cross-Examination of Covarrubias
Allen contends that the trial court erred prejudicially, and constitutionally, by limiting cross-examination of Covarrubias by Gillens counsel regarding his inconsistent statements about the putty knife and whether he saw police put it in the evidence box. We disagree.
Preliminarily, the Attorney General argues that Allen forfeited any claim of error regarding Gillens counsels cross-examination of Covarrubias, because Allen did not indicate any support of Gillens counsels line of questioning or any desire to pursue such a line of questioning. Allen contends that he was excused from making any such indication of support or interest because it would have been futile under the circumstances. We need not decide the issue, for we conclude that the trial courts actions in limiting the questioning by Gillens counsel were appropriate.
"Argumentative or badgering questions, usually occurring in cross-examination, are improper." (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 168, p. 232.) "An argumentative question is a speech to the jury masquerading as a question. The questioner is not seeking to elicit relevant testimony. Often it is apparent that the questioner does not even expect an answer." (People v. Chatman (2006) 38 Cal.4th 344, 384.) "The court may also refuse to permit questions that have already been asked and answered in substantially the same form." (3 Witkin, Cal. Evidence (4th ed. 2000) Presentation at Trial, § 169, p. 233.) Regarding evidentiary issues, a court has discretion that will not be disturbed unless the court abuses its discretion by acting in an arbitrary, capricious, or patently absurd manner. (People v. Frye (1998) 18 Cal.4th 894, 948.)
After Gillens counsel asked, "Mr. Covarrubias, do you understand the difference between knowing something and guessing at something?" and Covarrubias answered, "Yes," counsels next question, "If youre asked a question here, I ask you a question, you understand that you have to give the answer—" was seeking to instruct the witness, which is the job of the court, not counsel. Counsels next question—"[W]hy one minute ago did you just lie to me in open court about seeing an officer pick up that piece of evidence?"—was badgering and argumentative, a gratuitous speech to the jury that Covarrubias could not be trusted. (See In re Loucks Estate (1911) 160 Cal. 551, 557-558.) The court allowed the next question, "What reason would you have to not be truthful in court?" and Covarrubias answered, "I just—I was bleeding, and I was passing out without a blood, and things—I couldnt remember." Counsels next question, "So that gives you an excuse to not be honest here in court?" was also badgering and argumentative, intended to make a speech to the jury that Covarrubias was a liar, not to elicit relevant facts. The court was justified in controlling the particular questions and the entire line of questioning as it did. Neither Gillens nor Allens counsel was denied the opportunity to further pursue the matter with legitimate questions.
C. Covarrubias 1995 Conviction for Domestic Violence
Allen contends that the trial court erred prejudicially by excluding evidence that Covarrubias was convicted of domestic violence in 1995 in violation of section 273.5. We disagree.
At the beginning of the trial, the court considered a motion by the prosecutor, pursuant to Evidence Code section 352, to exclude evidence of Covarrubias earlier misdemeanor convictions of violating section 245 (assault with a deadly weapon) and of violating section 273.5 (willfully inflicting corporal injury on a spouse). Noting that the convictions were 10 to 12 years old, the court ruled, as to the underlying facts of the cases, that the probative value outweighed the prejudice, but that as to the status of the convictions, the prejudice outweighed their probative value. On cross-examination, when asked about the domestic violence incident, Covarrubias testified that in 1995, he and his wife had a fight in which he grabbed and pulled his wifes shirt and she scratched him, and that nothing similar had occurred since. Allens counsel later requested the court to allow her to ask Covarrubias about the status of the section 273.5 conviction because, in her view, what Covarrubias described was not consistent with a section 273.5 conviction. The court, however, found that it was, particularly in the plea agreement context, and again refused to allow Allen to introduce the fact of the conviction.
"Misdemeanor convictions themselves are not admissible for impeachment, although evidence of the underlying conduct may be admissible subject to the courts exercise of discretion." (People v. Chatman, supra, 38 Cal.4th at p. 373, citing People v. Wheeler (1992) 4 Cal.4th 284, 297-300.) The record indicates that Covarrubias section 273.5 conviction was a misdemeanor. Further, to the extent that the defense wished to introduce the conviction to show Covarrubias propensity for violence, the facts of the incident, which the court allowed, were more probative to accomplish that purpose than the conviction itself, and the courts ruling that the fact of conviction was more prejudicial than probative was not an abuse of discretion. Allens counsels assumption that the facts must show Covarrubias in a light worse than his description of the events and, therefore, the conviction would be stronger evidence of Covarrubias propensity for violence, is unsupported by the record or by any offer of proof.
III. Selection of Midterm Sentence for Mayhem
Allen contends that the trial court erred by relying upon the elements of mayhem—disabling or disfiguring injury—as a basis for rejecting the lower term sentence for Allens mayhem conviction. We disagree.
Section 1170, subdivision (b) currently provides, in pertinent part, "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 court shall select the term which, in the courts discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected[.]" Section 1170, subdivision (c) provides, in pertinent part, "The court shall state the reasons for its sentence choice on the record at the time of sentencing." California Rules of Court, rule 4.420, provides, in pertinent part, "(a) When a sentence is imposed, . . . the sentencing judge must select the upper, middle, or lower term on each count for which the defendant has been convicted, as provided in section 1170(b) and these rules. [¶] (b) In exercising his or her discretion in selecting one of the three authorized prison terms referred to in section 1170(b), the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. . . . [¶] (d) A fact that is an element of the crime upon which punishment is being imposed may not be used to impose a greater term. [¶] (e) The reasons for selecting one of the three authorized prison terms referred to in section 1170(b) must be stated orally on the record." The middle term traditionally has been the presumptive term under section 1170, subdivision (b) and rule 4.420, with a trial court only required to set forth reasons for deviating upward or downward (see, e.g., People v. Weaver (2007) 149 Cal.App.4th 1301, 1320), and the presumptive midterm will be restored to section 1170, subdivision (c) as of January 1, 2009, when recent amendments take effect, but Allen was tried and sentenced after both the code section and the rule were revised in the wake of the United States Supreme Courts decision in Cunningham v. California (2007) 549 U.S. 270 (Cunningham), which held that aspects of Californias determinate sentencing law were unconstitutional.
Allens argument—that the trial court improperly considered the elements of mayhem in refusing to impose the lower term—is based upon reading the courts language out of context. Allen points out that immediately after discussing how mayhem by definition necessarily involves "a minimum of extremely horrific injuries," the court stated, "In no way do I think a low term would be appropriate." Allen argues that this shows that the court used the injuries required to establish mayhem in rejecting the lower term. In context, however, the courts statement regarding the lower term is part of a larger discussion explaining why the court could not impose the upper term because it could not use the elements of mayhem to elevate the sentence above the midterm, as it otherwise might have wished to do. Thus the court demonstrated an understanding that it was not allowed to use the elements of mayhem in determining the sentence, and its statement regarding its rejection of the lower term, which happened to follow the initial part of its discussion of why the elements could not be used in sentencing, does not rely upon those elements.
DISPOSITION
The case is remanded for the trial court to stay the concurrent sentence for assault with a deadly weapon in violation of section 245, subdivision (a)(1). In all other respects, the judgment is affirmed. The trial court is directed to prepare a corrected abstract of judgment and forward a certified copy thereof to the Department of Corrections and Rehabilitation.
We concur:
MALLANO, P. J.
WEISBERG, J.