Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Charlaine F. Olmedo, Judge, Super. Ct. No. BA260824
Gregory L. Rickard for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Chung L. Mar and Susan S. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
WILLHITE, Acting P. J.
Defendant Andaliwa Andrus appeals from the judgment following a jury verdict convicting him of one count of attempted voluntary manslaughter (Pen. Code §§ 664/192, subd. (a)), and finding true the allegations that he personally inflicted great bodily injury under circumstances involving domestic violence (§ 12022.7, subd. (e)) and personally used a deadly and dangerous weapon (§ 12022, subd. (b)(1)). He was sentenced to state prison for a total term of 11 years, 6 months (the upper term of 5 years, 6 months for attempted voluntary manslaughter, plus the 5-year upper term for the great bodily injury enhancement and one year for the deadly weapon enhancement). Defendant contends: (1) prosecutorial misconduct during closing argument requires reversal of his conviction; (2) imposition of the great bodily injury enhancement under section 12022.7, subdivision (e), was improper because attempted voluntary manslaughter is excluded from section 12022.7 by subdivision (g), which provides in relevant part that the section “shall not apply to . . . manslaughter”; (3) imposition of the upper term for attempted voluntary manslaughter and infliction of great bodily injury violates Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856, 166 L.Ed.2d 856]; (4) the trial court abused its discretion in imposing the upper terms on the basis of defendant’s prior misdemeanor record; and (5) trial counsel was ineffective for failing to object that the trial court’s reliance on defendant’s prior record in sentencing violated Blakely v. Washington (2004) 542 U.S. 296. Finding none of defendant’s arguments persuasive, we affirm.
All undesignated section references are to the Penal Code.
Defendant was charged with three counts: attempted first degree murder (§§ 664/187, subd. (a)), inflicting corporal injury to a spouse or cohabitant (§ 273.5, subd. (a)), and assault with a deadly weapon (§ 245, subd. (a)(1)). The jury acquitted defendant of attempted first degree murder, convicted him of attempted voluntary manslaughter as a lesser included offense, and acquitted him of the remaining charges.
STATEMENT OF FACTS
1. The Prosecution’s Case
Celia Escobar and defendant had known each other since 1995. Although they had never lived together, they had one child, Eddason who was eight years old when the crime was committed. They shared custody of their son.
The reporter’s transcript spells the child’s name as “Edison” but the parties agree that the correct spelling is “Eddason.”
During the morning of February 17, 2004, Escobar brought Eddason to the home of defendant’s mother, Asilah Shakoor. Escobar and defendant spoke briefly, intending to meet later that morning at defendant’s home. Defendant left, taking Eddason to school. Escobar stayed briefly at Shakoor’s home before driving to defendant’s house. Defendant was home. She asked him to show her papers relating to dates Eddason would attend camp. Defendant handed her a paper. Escobar looked at it, commenting: “This doesn’t make sense.” As she turned to speak to defendant, defendant grabbed a telephone cord and wrapped it around her neck. He held the cord tightly, lifting her up from the seat. He said: “Today you will die. Today is your day to die.” The two struggled and Escobar was able to release the telephone cord. Defendant punched her many times in the face with his fist. As Escobar tried to crawl away, he stabbed her multiple times in the chest with a pocket knife, causing her to pass out.
When Escobar regained consciousness, defendant was standing over her. He said “Oh, you are not dead. Don’t worry. I will take care of that right now” and proceeded to stab her again with the pocket knife. Escobar tried to fight back and to reach the front door. Defendant pinned her to the floor, bound her feet with telephone cord, and continued to stab her. Defendant then retrieved a long knife and stabbed Escobar in the stomach and cut her throat. He placed plastic bags on her head and again stabbed her in the stomach. She pretended to be dead. Soon thereafter, defendant left his house.
Escobar crawled out of the home and cried for help. Neighbors came to her aid and contacted 911. An ambulance transported Escobar to the hospital. She had suffered multiple life-threatening stab wounds. She underwent three surgeries and remained in the hospital for eight days.
The police arrested defendant that afternoon. That day, a criminalist removed a plethora of evidence from defendant’s home corroborative of Escobar’s testimony. On February 23, the police conducted a videotaped interview of Escobar at the hospital, following which a search warrant was obtained for defendant’s home. (The videotape was not entered into evidence.) When the police executed the warrant, they found further evidence corroborative of Escobar’s testimony.
2. The Defense Case
Defendant testified on his own behalf and admitted that he had stabbed Escobar. He claimed that he had done so after Escobar had told him that her boyfriend Patrick Reagan was moving in with her and Eddason. Defendant became enraged because he believed Reagan had been sexually molesting Eddason. According to defendant, Eddason had told both him and Shakoor that Reagan was molesting him. Defendant believed Eddason because the child had acted in inappropriate sexual ways with other children. Defendant testified that he had made multiple efforts to stop Reagan’s molestation of Eddason. These efforts included including informing the police, contacting Eddason’s school, and going to family court. None of them had been successful.
Defendant denied some of the particulars of Escobar’s testimony but none of them is relevant to the issues raised on appeal.
Defendant’s concern about Reagan was exacerbated by the fact that several years earlier, Escobar’s brother had raped Eddason and that his (defendant’s) subsequent contact with the police and other authorities had done nothing to stop that molestation. Defendant explained that he had stabbed Escobar to protect Eddason by preventing Escobar from permitting Reagan to move in with her and Eddason. Defendant had not planned to kill Escobar.
To further explain his state of mind on the day of the stabbing, defendant testified that he had confronted Escobar about Eddason’s statements that she had forced him to eat out of the trash can. According to defendant, Escobar replied “it was not that big a deal” since it was only fruit.
Defendant did not present evidence to corroborate his claim that Eddason had been sexually molested because the trial court had ruled such evidence would not be admitted. The court instructed the jury that defendant’s testimony about the (alleged) molestations of Eddason by Reagan and Escobar’s brother was offered only to establish defendant’s state of mind, not as proof that the molestations had occurred.
Defendant’s appeal does not challenge the trial court’s ruling barring proof that Eddason had been molested. Nor does he challenge the court’s pre-trial ruling that it would not instruct about the complete privileges of necessity or defense of others.
To further impugn the prosecution case, the defense suggested Escobar had a financial motive to have defendant convicted: she had filed a lawsuit against defendant, defendant’s mother (Shakoor) and defendant’s stepfather based upon the attacks. The lawsuit, filed on September 9, 2004, alleged that Shakoor and her husband were liable because they owned the house in which defendant had attacked Escobar and that they knew or should have known of defendant’s violent propensity. The lawsuit sought compensatory and punitive damages.
Pursuant to defense counsel’s request, the complaint, which was entered into evidence at trial, has been transmitted to this court. (Cal. Rules of Court, rule 8.224(b).)
3. Jury Instructions
The trial court submitted the pattern instructions defining the charged crimes and all lesser included offenses, including attempted voluntary manslaughter.
DISCUSSION
A. PROSECUTORIAL MISCONDUCT
Defendant claims that the prosecutor committed multiple acts of misconduct during closing argument requiring reversal. We find no prejudicial misconduct.
1. Factual Background
Immediately before the parties presented their closing arguments, the court told the jury: “The attorneys in making these arguments to you will be commenting upon the testimony that you have heard and evidence that was presented in this case. [¶] Please keep in mind that what they say is not evidence.” (After argument, the court submitted the pattern instructions that counsel’s statements are not evidence and the jury is to base its decision on the facts and the law.)
The opening portion of the prosecutor’s closing argument simply applied the facts to the law and asked the jury to find defendant guilty of the three charged crimes. The prosecutor urged that the evidence did not support a finding of attempted voluntary manslaughter, the verdict that he claimed the defense sought. The prosecutor characterized the defense’s in-court treatment of Escobar as “humiliation and degradation.” Defense counsel did not object to that statement.
When the prosecutor began to discuss the concept of heat of passion, he stated: “This whole case boils down to this. . . . [B]asically the defense is making a play for this. They want you to come back with this. They want you to find that [defendant] was operating under a heat of passion when he attempted to kill Celia Escobar. [¶] This is the whole ball game. This is what they want. If they get it, they win. We lose. . . . This is what all the marbles are for.”
Defense counsel’s closing argument largely failed to address the relevant facts and law. In his few references to attempted voluntary manslaughter, he disagreed with the prosecutor’s claim that the defense sought a conviction of that offense and, in fact, explicitly disavowed seeking such a verdict. Other than a passing, unfocused reference to the concept of heat of passion, defense counsel did not rely upon the legal principles set forth in the jury instructions.
Defense counsel explained it as follows: “He argued if they get this, they’re the winners; we’re the losers. That is just absolutely, positive 100 percent not true. [¶] There is a little boy [Eddason] in this case who the prosecutor doesn’t want to talk about. The prosecutor doesn’t want to believe you to think about him. The prosecutor wants to ignore him. The prosecutor wants to pretend that that little boy doesn’t exist. [¶] And ultimately it is easy to call [defendant] a big liar, but it is rather difficult to address the fact that the person who facilitated a little boy being molested over and over is being propped up by the District Attorney’s office as the saint.”
Defense counsel stated: “The idea that he [the prosecutor] tells you that what the defense wants – defense wants you to come back with this attempted voluntary manslaughter. That is the whole ball game. He told you that is what the defense wants. That is a lie. [¶] To walk back and to convict this man of defending his child and putting millions of dollars in Celia Escobar’s pocket[,] attempted voluntary manslaughter, attempted jay walking, attempted anything with a conviction behind it, I don’t want anything to do with because it would be immoral to me.” (Italics added.)
Defense counsel stated: “Unimaginable situations create unimaginable results. Then when unimaginable results happen, I do think it is fair to ask you to look at the circumstances surround it and sit there and say was this man moved by the heat of passion? Was he attempting to protect his son? And right now, I am done.”
Instead, defense counsel’s closing argument proceeded on the unproven assumption that Eddason had been molested. Building on that premise, he implicitly argued for jury nullification on the theory that defendant should not be punished for trying to protect his son from sexual abuse. Appealing to the passion of the jury, he not only spoke about the importance of protecting children from molestation but lauded vigilantism. In addition, defense counsel vouched for his own credibility and stated that the prosecutor had lied to the jury.
For instance, defense counsel argued: “[W]hen a prosecutor . . . talks about the law, it always reminds me that in 1971 I couldn’t have been here because I am part black and part white and that was against the law.” The prosecutor objected and the court directed defense counsel to move on. Nonetheless, defense counsel continued: “When the prosecutor doesn’t have a factual leg to stand on, a moral leg to stand on, they argue the law. It was the law that we can own black people, we can own women.” After the prosecutor again objected, defense counsel went on to say: “It was the law in other countries that they killed certain ethnic groups. Because it is the law, it does not make it just and it does not make it right and it does not mean that it is okay to hide from what really is at issue in this case.” (Italics added.)
For instance, defense counsel stated there “is a recognition that there is a dignity above what a prosecutor tells you is the law. There is a dignity in something that is created in my opinion by a higher power that bestows a little boy or little girl with the power to say, Daddy I love you, Mommy, I love you; but incumbent on that is duty to what? To protect that child.” (Italics added.) Later on, he argued: “[W]hat I am asking you to do is to recognize the thousands and thousands of lives that are destroyed when people use children. [¶] I believe it should stop. Everyone believes it should stop. I remember when Ellie Nesler was in Stockton. Pulled out a gun and shot a guy who molested her kid in the head three times or four times. I had a bumper sticker that said, ‘Great Shooting Ellie.’”
Defense counsel also urged that the prosecutor had falsely represented that there was a videotape of the interview Detective Elva Soriano had conducted with Escobar on February 23, 2004. Relying upon the fact that no videotape had been produced at trial, defense counsel called the representation a lie.
The prosecutor began his rebuttal argument by stating that the People “would have been more than happy to litigate” whether Eddason had been molested but that the trial “court ruled that it was not proper . . . to get into that.” The trial court sustained defense counsel’s objection to the remarks and directed the prosecutor to move on. Shortly thereafter, the prosecutor stated: “The defense told you at the beginning of their case they were going to prove that [Eddason] had been molested. Did they put on any proof of that? [¶] [Defense counsel’s] whole argument was laced with things that were not true which he knew that he could never prove.” Defense counsel objected. The court overruled the objection, telling the jury to “keep in mind the court’s admonition.”
The prosecutor also addressed defense counsel’s claim that he (the prosecutor) had falsely stated there was a videotape of the February 23 interview with Escobar. He argued that “the officer [Detective Soriano] told you that there was a videotape. And if the court would have allowed it, we would have played it.” The court sustained defense counsel’s objection to the argument and instructed the jury: “[K]eep in mind that what the attorneys say is not evidence. You remember what the evidence is.”
The prosecutor next argued that defense counsel had emphasized Eddason’s molestation because he did not want to address the facts of this case. The prosecutor continued: “[B]ut what he wants to tell you and he says it very clearly is that Celia Escobar deserved to get her throat cut. And he just said it. She deserved it. She deserved to get her throat cut. What else did he say? He just sat up here and told you be careful what you wish for you might get it. [¶] This is the kind of Neanderthal thinking that gets women abused and victims of domestic violence. . . . This is the guy that doesn’t get it. He is so lost, he can’t see the forest through the trees. And he is going to sit up here and tell you that doesn’t like to hear his own voice. That is all he wants to do is hear his own voice. He just loves to hear himself talk and pat himself in the back and not deal with the facts in this case.” (Italics added.) Defense counsel objected that it was “prosecutorial misconduct to attack an attorney.” The court overruled the objection. When the prosecutor continued to mock defense counsel, the court interrupted and told him to address the facts of the case. Soon thereafter, the prosecutor tried to imitate defense counsel’s voice tone. Defense counsel objected. The court directed the prosecutor to address the facts and lower his voice.
At the end of his argument, the prosecutor stated that Escobar had “stood up to some horrific . . . questioning and humiliation by the defense, but told you the truth.” Defense counsel objected. The court told the jury to disregard the statement and directed the prosecutor to address the facts. The prosecutor, without any objection from defense counsel, told the jury that Escobar had told the truth and asked that it find defendant guilty of all charges.
After the jury returned with its verdicts, the defense moved for a mistrial based upon prosecutorial misconduct. The trial court denied the motion for two reasons. It first found that “with regard to the arguments . . . many of the objections that [defense] counsel made, . . . were sustained by the court with an admonition to follow.” It then explained that the ultimate inquiry was whether defendant was prejudiced which it defined “to mean would there be a different result, or would a different result have been likely?” The court reasoned that because defendant had testified and “admitted to stabbing [Escobar] and physically harming her[,] . . . based upon the law that the court did instruct the jurors on, that the best result under these circumstances would have been attempted voluntary manslaughter based upon the provocation, and that was in fact what the jury returned a verdict of. So that was the best result that could have happened for [defendant], and that’s what he got here. [¶] . . . So the motion for a new trial is denied because I don’t believe there is any prejudice in this case. I don’t believe that different result would have been likely.”
4. Analysis
Two of defendant’s claims of prosecutorial misconduct can be quickly dispatched. The first is based upon the prosecutor’s statement, made at the end of the first portion of his closing argument, in which he characterized the defense’s treatment of Escobar as “humiliation and degradation.” Defendant failed to object to that statement. “To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.” (People v. Price (1991) 1 Cal.4th 324, 447.) Even assuming the statement was misconduct, an admonition to the jury to disregard it would have cured any harm.
In a similar vein, defendant’s failure to object the very last remark the prosecutor made (“[Escobar] told you the truth.”) constitutes a forfeiture of any claim of misconduct. In any event, defendant errs when he characterizes the statement as improper prosecutorial vouching for the victim’s credibility. Improper vouching “usually involves an attempt to bolster a witness by reference to facts outside the record. [Citation.] Here, the prosecutor properly relied on facts of record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief. [Citations.]” (People v. Medina (1995) 11 Cal.4th 694, 757.)
We now turn to the claims of misconduct which have been preserved for appellate review.
The first group involves remarks in which the prosecutor denigrated defense counsel. These include the statements generally mocking him, the statement that he had subjected Escobar to “horrific questioning and humiliation,” and the statement that he displayed the type of Neanderthal thinking which leads to physical abuse of women. Defense counsel objected to all of them. “A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel. [Citations.] ‘An attack on the defendant’s attorney can be seriously prejudicial as an attack on the defendant himself, and, in view of the accepted doctrines of legal ethics and decorum [citation], it is never excusable.’ [Citation.]” (People v. Hill (1998) 17 Cal.4th 800, 832.) That defense counsel presented improper closing argument, including attacks on the prosecutor’s integrity, does not excuse the prosecutor because his remarks went beyond giving a fair response to defense counsel’s (improper) argument. (People v. Frye (1998) 18 Cal.4th 894, 978.) (Whether the comments constitute prejudicial misconduct will be discussed later.)
Defense counsel also objected to the prosecutor’s statements that but for the trial court’s ruling, he would have litigated whether Eddason had actually been molested. This statement was misconduct. It improperly suggested that the prosecutor could prove no molestation had occurred and it improperly informed the jury about a ruling the trial court had made outside the jury’s presence. (See People v. Hill, supra, 17 Cal.4th at pp. 827-828, and cases cited therein.) In a similar vein, defense counsel properly objected when the prosecutor stated that he would have produced the videotaped February 23 interview with Escobar had the trial court permitted him to do so. In fact, the record contains no indication that the parties litigated or the court ruled upon the admissibility of the videotape.
Lastly, it was improper for the prosecutor to argue that the defense failed to fulfill a promise made in opening statement that it would prove Eddason had been molested. While the defense had made that promise, the trial court sustained the prosecutor’s objection, struck any references to proof of molestation, and instructed the jury to disregard it. Consequently, this was not a situation in which a prosecutor properly highlighted the discrepancies between the defense counsel’s opening statement and the evidence; instead, it was a situation in which the prosecutor improperly accused defense counsel of fabricating a defense. (See People v. Bemore (2000) 22 Cal.4th 809, 846, and cases cited therein.)
The dispositive question is whether the prosecutor’s misconduct requires reversal. It does not.
Defendant first urges the prosecutor’s misconduct violated the federal constitution, requiring a showing that the misconduct was harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.) We disagree. “‘A prosecutor’s rude and intemperate behavior violates the federal Constitution when it comprises a pattern of conduct “so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” [Citations.]’” (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.) Here, while the prosecutor’s comments were improper, they did not deprive defendant of a fair trial. The comments were limited to the rebuttal phase of closing argument and the court often sustained the defense objections and admonished the jury or instructed the prosecutor to move on. No due process violation occurred.
Under state law, “a prosecutor who uses deceptive or reprehensible methods to persuade either the court or the jury has committed misconduct, even if such action does not render the trial fundamentally unfair. [Citations.]” (People v. Frye, supra, 18 Cal.4th at p. 969.) In that situation, “we determine whether it is ‘reasonably probable that a result more favorable to the defendant would have occurred’ absent the misconduct.” (People v. Welch (1999) 20 Cal.4th 701, 753.)
Here, we conclude, as did the trial court, that the prosecutorial misconduct was not prejudicial. The jury acquitted defendant of two charges (inflicting corporal injury on his son’s mother and assault with a deadly weapon) and their lesser included offenses. In addition, it acquitted defendant of attempted first degree murder and instead convicted him of the lesser included offense of attempted voluntary manslaughter. Hence, the inquiry is whether it is reasonably probable that absent the misconduct, defendant would have been acquitted of attempted voluntary manslaughter. On this record, it is not because there was absolutely no basis in law or fact to acquit him of that offense. By his own testimony, defendant admitted that he had attacked Escobar; hence, identity of Escobar’s assailant was not in issue. And on appeal, defendant does not contend that the record fails to contain substantial evidence to support his conviction. Because there was no basis upon which a jury could entertain a reasonable doubt as to defendant’s guilt of attempted voluntary manslaughter, its verdict could not have been influenced by the prosecutor’s misconduct.
Defendant’s contrary argument is not persuasive. Noting that the jury inconsistently acquitted him of the two other charges arising out of the same events, he argues: “Given the willingness of the jury to acquit [defendant] on these charges in spite of the prosecution’s evidence, it is more likely that jurors were influenced by the prosecutor’s suggestion that the case was all about whether they would deliver a victory to the defense in the form of an attempted voluntary manslaughter conviction. . . . [¶] . . . [I]t is quite likely that jurors believed that their attempted voluntary manslaughter verdict constituted a victory for the defense which would result in only a short time in prison for [defendant]. Under these circumstances, [the prosecutor’s] misconduct was the pivotal factor which salvaged a conviction for the prosecution.”
One well known treatise explains that such inconsistency can result when “the jury, in deliberate disregard of the law, compromises its disagreements or extends leniency by convicting on one count and inconsistently acquitting on another. [Citations.]” (6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Judgment, § 74, pp. 108-109.)
In his opening brief, defendant argues “If a single juror would have voted differently to create a hung verdict, the result would have been more favorable than a conviction” but he fails to explain how, based upon the facts and law, a reasonable juror would have reached that conclusion.
Given that there was no basis in law or fact to acquit defendant, this argument proceeds upon the unstated premise that he was entitled to ask the jury for a verdict nullifying his prosecution for attempted first degree murder and that because of the prosecutor’s comments, the jury incorrectly concluded that conviction of attempted voluntary manslaughter would be such a nullification. In other words, defendant urges he was prejudiced because the prosecutor’s misconduct denied him the right to nullification on count one. But “[j]ury nullification is contrary to our ideal of equal justice for all and permits both the prosecution’s case and the defendant’s fate to depend upon the whims of a particular jury, rather than upon the equal application of settled rules of law. . . . [Therefore,] jurors are required to determine the facts and render a verdict in accordance with the court’s instructions on the law.” (People v. Williams (2001) 25 Cal.4th 441, 463.)
That the jury may well have engaged in nullification in acquitting defendant of the other charges (a reasonable conclusion given the evidentiary record and defense counsel’s closing argument) does not establish that his conviction for attempted voluntary manslaughter was improper. Simply stated, defendant obtained more than he deserved with those acquittals. He cannot parlay the prosecutor’s misconduct during closing argument into a new trial so that he may again seek an acquittal on an improper basis.
B.
ENHANCEMENT UNDER SECTION 12022.7, SUBDIVISION (E)
The trial court sentenced defendant to the upper term of five years, six months for his conviction of attempted voluntary manslaughter, and also imposed the upper term of five years under section 12022.7, subdivision (e), for infliction of great bodily injury under circumstances involving domestic violence. Relying on the dissent in People v. Lewis (1993) 21 Cal.App.4th 243, 252-258 (Lewis) (Newsom, Acting P.J., dis.), defendant contends that the section 12022.7, subdivision (e), enhancement should be stricken. We disagree.
In substance, the argument set forth by the dissent in Lewis (as applicable to the instant case) and urged by defendant here is as follows. Section 12022.7, subdivision (g), precludes imposition of a section 12022.7 enhancement for the completed crime of voluntary manslaughter. Therefore, it would be incongruous to permit such an enhancement for attempted voluntary manslaughter. The supposed incongruity flows from section 664, which provides (with exceptions not here relevant) that the punishment for an attempted felony is half the term of imprisonment prescribed for the completed offense. (§ 664, subd. (a).) To permit a section 12022.7 enhancement for an attempt, the argument goes, would violate the principle expressed in section 664 and result in an inordinately long sentence as compared to the completed crime. Therefore, section 12022.7, subdivision (g), should be read to exclude attempted voluntary manslaughter from the section 12022.7, subdivision (e) enhancement.
Subdivision (g) provides in relevant part that “[t]his section shall not apply to murder or manslaughter or [arson] in violation of Section 451 or 452.” (Italics added.)
As pointed out by the majority in Lewis, this argument suffers from several fatal flaws. First, it is inconsistent with the plain language of section 12022.7. (Lewis, supra, 21 Cal.App.4th at p. 247.) As here relevant, subdivision (e) provides that its enhancement applies to “[a]ny person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony.” (Italics added.) Further, subdivision (g) expressly exempts only murder, manslaughter, and two forms of arson; it does not exempt attempts to commit these crimes. “In the face of this clear language, there is no reason to construe section 12022.7 to exempt attempted manslaughter from the enhancement for infliction of great bodily injury.” (Lewis, supra, 21 Cal.App.4th at p. 247.)
Second, “[o]ther courts have considered the analogous argument that attempted murder must by implication be exempted from the application of [section 12022.7], and uniformly have rejected the proposition.” (Id. at p. 247; see People v. Allen (1985) 165 Cal.App.3d 616, 631; People v. Wells (1983) 149 Cal.App.3d 497, 505.) Third, “[t]he legislative histories of sections 12022.7 and 664 do not support an implied exclusion of attempted manslaughter from the application of section 12022.7.” (Lewis, supra, 21 Cal.App.4th at p. 248.)
Fourth, on the facts presented here, the five-year enhancement of defendant’s sentence under section 12022.7, subdivision (e), did not result in an incongruous sentence when compared to the sentence defendant could have received for the completed crime of voluntary manslaughter alone. (See Lewis, supra, 21 Cal.App.4th at p. 250.) The upper term for voluntary manslaughter is 11 years (§ 193, subd. (a)), more than the 10 year, 6 month portion of defendant’s sentence attributable to his conviction of attempted voluntary manslaughter with the section 12022.7, subdivision (e) enhancement. Moreover, the Legislature could rationally conclude that an attempted voluntary manslaughter in which the victim suffers great bodily injury under circumstances of domestic violence deserves significantly enhanced punishment. Because defendant’s sentence for attempted voluntary manslaughter, enhanced by section 12022.7, subdivision (e), is less than that for voluntary manslaughter, and is the result of a rational legislative policy, it cannot be said that defendant’s sentence is incongruous. (See Lewis, supra, 21 Cal.App.4th at p. 250.)
Finally, defendant argues that the reasoning of the majority in Lewis should be reexamined because after “the Lewis decision, additional great bodily injury enhancements have been added to [section] 12022.7 with increased punishment,” thus making the possible sentences for attempted voluntary manslaughter with the section 12022.7 enhancement even more incongruously long. However, the post-Lewis amendments to section 12022.7 suggest the Legislature’s approval of the Lewis majority’s decision. “Because the Legislature is presumed to know existing case law, its failure to alter judicial interpretation [of a statute] when it amended the section . . . indicates an intent to leave the law as it stood in the aspects not amended.” (People v. Green (1996) 50 Cal.App.4th 1076, 1090.) Here, after Lewis, the Legislature amended section 12022.7 to add additional enhancements without amending the language of subdivision (g) to exclude attempted voluntary manslaughter from the section 12022.7 enhancements. Thus, the inference to be drawn is that the Lewis majority’s interpretation of section 12022.7 is consistent with legislative intent. (Green, supra, 50 Cal.App.4th at p. 1091.)
C. CUNNINGHAM ERROR
Defendant contends that the trial court’s selection of the upper term for the attempted voluntary manslaughter conviction and for the finding that he inflicted great bodily injury violated Cunningham v. California, supra, [127 S.Ct. 856; 166 L.Ed. 856]. Assuming (without deciding) that defendant’s failure to object on constitutional grounds in the trial court does not forfeit the issue, we disagree. The trial court imposed the upper terms “based upon [defendant’s] prior record. He has seven misdemeanor convictions, six of which were committed while under grants of summary probation.” The court also cited the fact that in defendant’s 1996 conviction of battery (§ 242), the victim was Celia Escobar, the same victim as in the instant case. A trial court’s reliance on a defendant’s prior convictions and related issues that may be determined by examining the records of prior convictions (such as the defendant’s probationary status and the identity of the victim in a prior crime of violence) does not violate Cunningham. (People v. Black (2007) 41 Cal.4th 799, 819 (Black II), cert. den. Black v. California (2008) 128 S.Ct. 1063.) Further, the existence of one such constitutionally permissible aggravating factor makes the defendant eligible for the upper term, and any additional judicial fact-finding in choosing the appropriate sentence dose not violate the right to a jury trial. (Black II, supra, 41 Cal.4th at p. 813.) Thus, the trial court’s imposition of the upper terms here did not violate Cunningham.
In the trial court, defense counsel specifically noted that he objected to the use of defendant’s prior convictions in sentencing on the ground that the prior convictions had not been proven, not on the ground that consideration of them violated Blakely v. Washington, supra, 542 U.S. 296. Defendant argues that trial counsel’s failure to object on constitutional grounds under Blakely constituted ineffective assistance of counsel. However, as we explain, the court’s reliance on defendant’s record and related facts was constitutionally permissible. Hence, trial counsel’s failure to object on constitutional grounds under Blakely was not ineffective assistance, but rather a correct assessment of the law.
Defendant’s probation report showed that he had suffered one prior conviction of reckless driving (Veh. Code, § 23103) in 1990, four prior convictions of driving with a suspended license (Veh. Code, § 14601.1, subd. (a), one occurring in 1992, two in 1996, and one in 1998), one prior conviction of petty theft (§ 484, subd. (a)) in 1992, and one conviction of battery (§ 242) in 1996.
D. ABUSE OF DISCRETION
Defendant contends that the trial court abused its discretion in imposing the upper terms for attempted voluntary manslaughter and infliction of great bodily injury. According to defendant, his prior convictions were minor and remote in time, and thus could not form a reasoned basis for selection of the upper term. Of course, the trial court has wide discretion in sentencing, and its decision will be overturned only if it is arbitrary, capricious, or exceeds the bounds of reason. (People v. Trausch (1995) 36 Cal.App.4th 1239, 1247.) Here the trial court cited three aggravating factors: defendant’s numerous prior misdemeanor convictions (seven in all), the fact that defendant was on summary probation when he committed six of them, and the fact that in his prior battery conviction the victim was Celia Escobar, the same victim as in the instant case. In mitigation, the court found that the jury concluded defendant had committed the instant crime while under provocation. The court concluded that the aggravating factors outweighed the mitigating factors, and imposed the upper terms.
No abuse of discretion appears in the court’s reasoning. It is true that defendant’s prior convictions were for misdemeanors, that they occurred between 1990 and 1998, and that only one involved violence (the battery conviction in 1996 against Celia Escobar). However, the court could reasonably conclude that the number of defendant’s prior convictions, and his probationary status when he committed six of them, suggested that he had little regard for the law and for obeying court orders. Further, his prior conviction of battery against Celia Escobar illustrated that his potential for domestic violence was longstanding, and elevated the seriousness of his attempted voluntary manslaughter against her in the instant case.
Defendant’s reliance on People v. Piceno (1987) 195 Cal.App.3d 1353 is misplaced. There, the court concluded that the defendant’s juvenile record – a “half dozen or so entries” for minor non-violent offenses –could not alone justify imposition of the upper term for vehicular manslaughter without gross negligence committed when the defendant was “two months past his eighteenth birthday.” (Piceno, supra, 195 Cal.App.3d at p. 1360.) Here, by contrast, defendant’s prior convictions occurred as an adult, he violated probation when committing six of them, and he had previously battered the woman whom he victimized in the instant case. There is no comparison to be drawn between the present case and Piceno.
DISPOSITION
The judgment is affirmed.
We concur: MANELLA, J., SUZUKAWA, J.
Later on, defense counsel stated: “When the prosecution asked you to find my client – punish my client to the fullest extent of the law, there are different types of laws I suggest to you. I don’t care what Hitler said to me, I am not going to do it. [¶] I don’t care what anybody says to me about harming a child, I am not going to do it. It is a question of conscience.” (Italics added.) At another point, he stated: “[T]he realm of reality that many of us deal with . . . is doing the right thing. Not the popular thing, but the right thing, the just thing.” Later on, he explained: “I would like to believe that we understand that it is sometimes time to do it or sometimes do the right thing. I wonder about the law. I wonder about the right thing. And also you do have to put yourself in that man’s shoes no matter how painful it is.” (Italics added.)
In his concluding remarks, defense counsel explained: “I hope it never happens to me. But if something like this ever happened to one of my children, I will tell you flat out any time, anywhere, any place I see that man or woman[,] adult, old, young who did that to one of my children whether it is a car, truck, a knife[,] an axe, a bat, she is going to get it.”