Opinion
D045992
5-17-2007
THE PEOPLE, Plaintiff and Respondent, v. RODNEY BERNARD BARNO, Defendant and Appellant.
NOT TO BE PUBLISHED
In November 2004 a jury convicted Rodney Bernard Barno (Barno) of stalking (Pen. Code, § 646.9, subd. (a); count 1); stalking in violation of a restraining order (§ 646.9, subd. (b); count 2); seven counts of making criminal threats (§ 422; counts 3, 4, 6-10); vandalism causing damage exceeding $400 (§ 594, subd. (a)(b)(1); count 11); six counts of vandalism causing damage less than $400, a misdemeanor (§ 594, subd. (a)(b)(2)(A); counts 5, 11-16), and two counts of making harassing telephone calls, a misdemeanor (§ 653m, subd. (a)). Barno admitted he had suffered three prior strike juvenile adjudications, two for assault with a deadly weapon (§ 245, subd. (a)) and one for discharging a firearm in a grossly negligent manner (§ 246).
All further statutory references are to the Penal Code unless otherwise specified.
Barno was sentenced to a prison term of 50 years to life, consisting of 25 years to life on the count 1 stalking conviction and a consecutive 25 years to life on the count 6 criminal threat convictions. The court stayed the sentence on the counts 3 and 4 criminal threat convictions under section 654. The court imposed concurrent terms on the remaining criminal threat convictions (counts 2 & 7-10). The court gave Barno credit for time served on the misdemeanor vandalism and harassing phone call convictions in counts 5 and 12-18.
On appeal Barno asserts (1) the jury was improperly instructed on its use of evidence of his prior acts of domestic violence; (2) the court abused its discretion in admitting evidence of his past acts of domestic violence; (3) the court erred by allowing the People to prove the damage caused by his vandalism to a car with an invoice showing the cost of repair; (4) the court erred in not giving, sua sponte, a unanimity instruction on the facts supporting counts 6, 9 and 10; (5) there is insufficient evidence to support the criminal threat convictions in counts 3, 6 and 7; (6) the court erred by not instructing, sua sponte, on principles of accomplice liability; (7) the court erred in failing to instruct the jury that a prosecution witness was an accomplice as to count 11; (8) he was provided ineffective assistance of counsel because trial counsel failed to argue that the court could not use his prior juvenile adjudications as strikes; (9) the court abused its discretion in failing to strike his prior juvenile adjudications; and (10) the cumulative effect of the errors rendering the proceedings fundamentally unfair. In a supplemental opening brief Barno asserts that (1) the court should have also given a unanimity instruction on count 3, and (2) use of his prior juvenile adjudications as strikes violated the federal Constitution. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Peoples Case
1. Stalking, criminal threats and vandalism targeting Daniell A. (counts 1-5)
Barno and Daniell A. began dating at the end of January 2003. Daniell was then 19 years old. They dated for approximately one to two weeks. Daniell ended the relationship because Barno was getting too possessive and aggressive. Barno became very upset when she broke up with him.
That evening, Daniells mother, Helen A., received harassing phone calls from Barno. Because she did not want any problems, Daniell called Barno and told him that she wanted to remain friends with him, believing it would allow her to ease out of their relationship. At first this seemed to work, but Barno continued to try to have a dating relationship with Daniell. Daniell decided to end the relationship completely.
Daniell left on a four-day vacation with her father, and she did not initiate any contact with Barno when she returned. While Daniell was gone, Barno called her mother, Helen, about three times a day. Barno asked about Daniell and wanted to know where she had gone. Helen assured Barno that Daniell was with family and that when she was ready she would call him.
After Daniell returned from her trip, her friend Josh Cardinal drove her to pick up her car that she had left parked at a friends house. When she arrived, Barno was waiting for her in front of her car. Barno wanted to know why she had not called him. Daniell told him that she did not want anything to do with him. Barno asked her to return the shirts from his cousins bar, where she was working, and informed her that she no longer had a job there. Barno was very upset. He also demanded to know why she was with Cardinal and wanted information about him.
Barno insisted that she return the work shirts immediately and followed her back to her house. At the house they began arguing again. Barno kept arguing and yelling at her. Daniells neighbor, Robert Eliasson, came out and tried to intervene. Eliasson told Barno to leave and he did so.
After Barno left, Daniell went to work at her job at Islands Restaurant. After she arrived at work she started getting phone calls. Because she was not allowed to take phone calls at work unless it was an emergency, the calls were answered by other employees and the caller was told that Daniell could not come to the phone. Finally, the caller spoke to the manager and told her he needed to speak to Daniell because it was a family emergency. The manager took Daniell to the back office where she could take the call. Barno was on the phone. He yelled at her and asked about Cardinal. Barno told Daniell that if she did not give him the information he wanted he was going to "fuck [Daniell] up and fuck up [her] car." The call upset Daniell and she was visibly anxious and nervous.
That evening Daniell drove her Honda Civic home from work and parked it outside her home. The next morning, she discovered that it had been vandalized. There were two large holes in the back window. There was a gash on the side window and damage to the door. Rocks had been thrown through the back window. Daniell reported the incident to police.
San Diego Police Officer John Jillard responded to the call. While he was investigating the incident, either Daniell or her mother Helen received a phone call from Barno. Officer Jillard took the phone and spoke to Barno. The officer asked Barno to come to the scene so he could take a statement. Barno stated that he would be there in five minutes with his lawyer. Officer Jillard waited for 30 minutes, but Barno never came.
After the vandalism incident, Daniell applied for a temporary restraining order against Barno. After she instituted those proceedings, Barnos threatening phone calls became more violent. Barno threatened to kill Daniell. Daniell received calls from February through April 2003. There were continuous calls to her mothers cell phone and at her home phone. Helen reported the calls to police as soon as she received them. At times she could identify the caller as Barno, and at times she could not.
One night during this time period, Helen received 65 phone calls on her home phone. The caller identification on the phone showed that the incoming calls were from Barnos phone number. During this time period the calls would come at all hours of the day and night. Sometimes the calls were hangups, and other times they were threatening. The caller would tell Daniell that she "had fucked up, and that [she] was going to get what was coming to [her]." The calls were made by Barno and others. One of the callers was Lacy Kristofferson, who was dating Barnos younger brother, Chris Barno. In May 2003 Daniell received a call from Kristofferson, who stated, "They know youre behind everything that is going on, and they are coming after you when all these lawsuits are over." She stated, "You talked. You are going to get what you deserve."
Daniell hired an attorney, Lee Haugen, to assist her in getting a permanent restraining order against Barno. Her manager at Islands Restaurant, Patty Niemeyer, her neighbor, Elliasson, and her friend, Frances Laverty, all provided declarations in support of the restraining order. Barno was present at the hearing on the restraining order. On April 25, 2003, the court granted Daniell a three-year permanent restraining order against Barno. The order prohibited Barno from having any contact with Daniell, including following and harassing her, and was in effect from April 2003 through April 2006.
After Daniell obtained the permanent restraining order, her mother received a threat against Daniell from Barno. That threat, along with the others, caused Daniell to be fearful. She was also fearful because Barno had told her about other incidents where he had vandalized other peoples cars. He told her that when he was let go by Omni Express, a hiring company, he threw bricks on two occasions through the windows of the company. She had also seen Barno in possession of two large guns that he kept either behind his bedroom door or under his bed. She saw Barno load the guns on a couple of occasions.
During the time that she and Barno were dating, she witnessed him vandalize a car belonging to Danielle Dotta. Daniell had driven Barno and his cousin to Dottas house. Barno directed her to park at the end of the street and leave the car running, but to turn off the lights and use the emergency brakes instead of the foot brakes so that no brake lights would go on. Barno and his cousin then got out of the car and broke the windows of Dottas car with a hammer and a crowbar. After Dottas car was vandalized, Daniell overheard him call her and threaten her. Barno told Dotta that "he knew girls that could come after her and get her without her knowing who they were; that he had a lot of friends that would do that for him."
Daniell saw Barno drive by her house on one occasion. On another, she was harassed by Barnos brothers girlfriend on the freeway. Barno followed her car on another occasion.
After the restraining order was issued, Daniell received a telephone call at home at 2:30 a.m. Because the callers voice was distorted, she believed it was Barno and called the police. The caller threatened Daniell, described what she was wearing and said he was going to get her. The call caused Daniell to become hysterical. She was crying, screaming and fearful.
Because of Barnos actions, Daniell was forced to change her lifestyle. She moved several times, between six and eight times in two years. She switched jobs several times, changed her phone number and became more cautious. She got a security dog and did not often do activities by herself.
On April 30, 2003, a search warrant was served on Barnos home. The police executing the search warrant overheard a conversation Barno had with his brother Chris. Chris stated, "This is fucking bullshit. I know it is that fucking [Daniell] who did this." Barno responded, "Dont worry. We will take care of her real good. She will get hers."
Later that day, Daniell received a threatening phone call from Barno. Barno told Daniell, "Youll get it, bitch." That same day Daniells mother received a threatening phone call from Barno, who told her, "You fucking bitch, youre dead." The call terrified her.
About a week later Daniells mother received another threatening call from Barno. Barno told her, "Tell Daniell shes dead."
Between February and May 2003, Helen noticed that Daniells demeanor changed. She was often scared and would cry a lot. Sometimes, Helen would find Daniell curled up in a corner crying.
2. Criminal threats to Matthew Ballester (counts 6 & 7)
Matthew Ballester was Daniells boyfriend. Ballester dated Daniell on and off for about six years. Ballester had a 14-year old brother, Michael. Barnos phone records showed that on February 20, 2003, he made three calls to Ballesters home phone and one to his cell phone. On February 25, he made five calls to Ballesters home phone.
Ballester received threatening calls from Barno. In some calls Barno said things like, "he was coming to get me, watch my back, going to fuck me up." Ballester received five similar calls. On another occasion, he told Ballester, "Watch your back. Im coming over."
Barno also spoke on the phone with Ballesters brother, Michael. Michael told Barno that Ballester could not come to the phone and Barno replied, "Tell your brother hes going to get fucked up." Barno called again soon after that call and stated, "So you think this is a joke? Well tell your brother to stay away from my girl. Im coming over there tonight." Michael told Ballester about both calls, which upset him, and made him nervous.
Those calls were reported to police the same night. Ballester spoke to the police and told them that he was "very frightened for my safety and the safety of my family" because of what he had heard about Barno. Ballester changed his lifestyle, took different routes home, and stopped parking his car in his driveway because he was afraid for his car and his family. He took Barnos threats seriously.
3. Criminal threats to Suzanne and Robert Eliasson (counts 8 and 9 )
Robert Eliasson and his mother, Suzanne Eliasson, lived near Daniell. As discussed, ante, Robert Eliasson provided a declaration in support of Daniells application for a restraining order.
Between 4:30 and 7:00 p.m. on July 28, 2003, Robert received disturbing phone calls. Barnos phone records showed that he made eight phone calls to the Eliasson home phone on that date, the next day two calls were made to that phone, and four calls were made to Suzannes cell phone.
Robert testified that in one of the calls the caller said, "Well, how about if I wait for you and your mom some night outside your apartment or condo." Robert replied that he would defend himself. In response, the caller stated, "Ill come over and beat the shit out of you and your mother." In another call, he said, "Ill come over there and kill you as well." The caller told Robert that he knew where he lived, recited his address, and said, "Ill come over one night, Ill wait for you and your mother, and eventually Ill kill you."
Robert called the police and reported the calls. He took the calls seriously and went outside to check his car to make sure a bomb was not planted underneath it. Robert called his mother Suzanne and told her about the calls. He also gave her the callers phone number that had appeared on his phones caller ID. Suzanne called the number and a man who identified himself as "Bob" answered the call. He asked, "Is this Susan?" and began to use profane language. He said, "You bitch, you whore, youre dead." He told her he was going to kill both her and her son. This frightened Suzanne and she called the police and relayed what the caller had said.
4. Criminal threats to Jessica G. (count 10)
Jessica G. dated Barno in 2002. Barno was possessive and controlling. On one occasion when they were having problems Barno told Jessica that he was going to make her suffer slowly.
On October 7, 2002, Jessica was out with Brett, a friend, when she received a threatening phone call from Barno. Barno asked what she was doing. When she told him she was "hanging out" with Brett, Barno became angry and threatened to "fuck her up." The threat frightened her. Over the next two days she received about 10 more calls from Barno.
On October 7, 2002, Alfred G., Jessicas father, also received two phone calls from Barno. In the first call, Barno told Alfred that his daughter was involved in illegal activity. In the second call, Barno told him that he was going to "fuck up his daughter." Alfred called Jessica and told her to come home, which she did. Jessica told police about the calls. While the police were taking a report, she received two more calls from Barno. Jessica feared for her safety and believed Barno would carry out his threats.
By the time of trial Jessica had moved to San Luis Obispo, partly to get away from Barno. She was afraid of what Barno might do to her family. On one occasion, Barno stated to her, "You might not be in town, but your family is still here."
5. Vandalism to Danielle Dottas car (count 11)
Sometime on the night of February 2, 2003, or the morning of February 3, 2003, Danielle Dottas 1997 Honda Civic, which was parked in the driveway of her house, was vandalized. All of the windows, with the exception of the front windshield, were completely shattered. She received a bill for $2,563 to fix her car. She paid the deductible, and her insurance company paid the balance of $2,228.
The day after the vandalism, Dotta received a threatening phone call from Barno. Barno was very angry and threatened to "get" Dotta if she implicated him or Daniell in the incident. He told her he could send someone and it could happen in the parking lot of her work.
Dotta told police that she had also received a phone call from Barno two days before he vandalized Daniells car. Barno told Dotta that he was going to take pictures of Daniells car to show to Dotta. Later, Dotta received another call from Barno who told her he had vandalized Daniells car, that it was worse than Dottas, and so was the vandalism to Daniells "little friends [car]." The "little friend" statement referred to Josh Cardinal.
Barno also told Frances Laverty that he had vandalized Dottas car.
6. Vandalism to Josh Cardinals car (count 12)
Josh Cardinal met Daniell through a mutual friend, Lacy Kristofferson, who was dating Barnos brother, Chris. In February 2003 he gave Daniell a ride to pick up her car that she had left parked at a friends house. Barno pulled up behind Cardinal in a car as he was dropping Daniell off. Barno, who seemed upset, asked Cardinal what he was doing and whether he was Daniells boyfriend. Cardinal waited until Daniell got in her car and then drove away.
That evening Cardinal received a call from a person who was upset, yelled and cursed at him. The caller asked Cardinal to meet him at the park and told him, "Im going to beat you up." Cardinal hung up the phone.
On February 20, 2003, the same night as Daniells car was vandalized, Cardinals car was vandalized. The windows were smashed and a door was dented.
Later, Cardinal saw Barno on the street and stopped to talk to him. Barno offered him $500 to fix the damage to his car. Barno gave Cardinal his cell phone number, but Cardinal did not follow up.
7. Vandalism to the Lavertys vehicles (counts 13-16)
In 2003 Frances Laverty was friends with Daniell and also knew Barno. She submitted a declaration in support of Daniells application for a restraining order against Barno and appeared at the hearing. The Laverty family received a series of threatening phone calls, both before and after the hearing on the restraining order, referring to Frances Lavertys court appearance at that hearing. Jennifer Laverty, Francess sister-in-law, received one of the calls. The caller threatened to come over and damage their property, warned that Frances should "watch her back," and stated that she "was in for hard times." The caller also stated, "I will kill you, and Ill destroy your property. . . . Your sister-in-law Frances should stay out of my business."
On May 1, 2003, shortly after the court issued a restraining order against Barno, three of the Lavertys vehicles were vandalized. A week later, a fourth car was vandalized. The windows were smashed on all four vehicles.
Barnos phone records showed one call to the Laverty home on April 23, 2003, one call on April 24, two calls on April 25, four calls on April 26 (the day after the restraining order was issued), and one call on May 1, 2003 (the day three of the Lavertys vehicles were vandalized).
8. Harassing phone calls to Lee Haugen and Norma Miller (counts 17 & 18)
Haugen was Daniells attorney who assisted her in obtaining a restraining order against Barno. Miller was Haugens administrative assistant. In May 2003 Haugen told Barnos attorney, Vikas Bajaj, that Barno was violating the restraining order, that he needed to get his client under control, and that Barno should not try to threaten him. Later that day, Miller received a call. The caller told her, regarding Haugen, "You tell him to watch his back, watch his fucking back every fucking minute." When Miller asked who the caller was, he stated, "None of your fucking business, fucking bitch." The call frightened Miller. Police tape recorded Barnos voice and played it for Miller, who recognized the voice as the caller who had made the threats to her on May 7, 2003. Phone records confirmed that Barno made a phone call to Haugens office at 3:03 p.m. on May 7, 2003.
9. Prior uncharged acts of domestic violence
Jasmin L. was 17 years old when she began dating Barno, who was 23 years old at the time. They dated on and off for a year and a half, until Jasmin broke off the relationship in 2000. Barno was upset when she ended the relationship. He paged her about 50 times, drove by her house and called her at home. He threatened her and she reported the threats to police. On more than one occasion, Barno threatened to poison her horses, damage her house and kill her and her family.
On March 15, 2001, during a time Jasmin and Barno were not dating, they got into an argument. Jasmin was sitting in a car with a friend, Steve Behnke, when Barno ran up to the car yelling and screaming. Barno screamed at them, "Im going to fuck you up and fuck her up." Barno had a lit cigarette in his hand. Barno then put the cigarette out on her face, which left a burn mark. When she and Barno were not getting along, Barno would be aggressive towards her, use bad language and threaten her. The threats made her very afraid.
B. Defense Case
Barno did not testify or offer any other evidence in his defense.
DISCUSSION
I. PRIOR UNCHARGED ACTS OF DOMESTIC VIOLENCE
Barno asserts that the court erred in instructing the jury under CALJIC No. 2.50.02, which permits the jury to consider, for limited purposes, the prior acts of domestic violence against Jasmin, claiming that none of the charged crimes involved domestic violence. In a related argument, Barno contends that the court abused its discretion under Evidence Code section 352 in admitting that evidence under Evidence Code section 1109. We reject these contentions.
A. Background
In an in limine motion, the People sought to introduce uncharged acts of domestic violence committed against Barnos former girlfriend, Jasmin, described in more detail, ante. Defense counsel objected under Evidence Code section 352, claiming the evidence was more prejudicial than probative. The People responded that the incidents were relevant, admissible and not remote in time. The court, observing that Barnos conduct toward Jasmin was a "carbon-copy" of the charged conduct and, after weighing the evidence under Evidence Code section 352, ruled that the prior acts of domestic violence were relevant and admissible under Evidence Code section 1109. The court, in ruling the evidence was admissible, stated, "I think that the similarity of the uncharged acts to those that are charged in this case show a pattern of intimidation and threats on the part of [Barno] in this particular context, and I think the jurys entitled to know that."
The court instructed the jury under CALJIC No. 2.50.02, which provides in part:
"Evidence has been introduced for the purpose of showing that the defendant engaged in an offense involving domestic violence [on one or more occasions] other than that charged in the case. [¶] [`Domestic violence means abuse committed against an adult or a fully emancipated minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the defendant has had a child or is having or has had a dating or engagement relationship.]
[¶] . . . [¶] Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to himself or herself, or another. [¶] If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit [another] [other] offense[s] involving domestic violence. If you find that the defendant had this disposition, you may, but are not required to, infer that [he] [she] was likely to commit and did commit the crime [or crimes] of which [he] [she] is accused. [¶] However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged offense[s]. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime.
[[Unless you are otherwise instructed, y]ou must not consider this evidence for any other purpose.]" (Italics added.)
B. Applicable Authority
Evidence Code section 1109, subdivision (a)(1) provides:
"Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352." (Italics added.)
Evidence Code section 352 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."
Evidence Code section 1109, subdivision (d)(3) defines the term "domestic violence" as follows:
"As used in this section, [¶] `[d]omestic violence has the meaning set forth in Section 13700 of the Penal Code. . . ."
Section 13700, subdivision (b) provides in part:
"`Domestic violence means abuse committed against an adult or a [fully emancipated] minor who is a spouse, former spouse, cohabitant, former cohabitant, or person with whom the suspect has had a child or is having or has had a dating or engagement relationship. For purposes of this subdivision, `cohabitant means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship." (Italics added.)
Section 13700, subdivision (a) defines "abuse" as "intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable apprehension of imminent serious bodily injury to him or herself, or another."
C. Analysis
1. Instruction under CALJIC No. 2.50.02
The criminal threats against Daniell (counts 3 & 4) and against Jessica (Count 10) were acts of domestic violence as defined in section 13700. They had both been in a dating relationship with Barno. He made threats to inflict bodily injury against both individuals. Moreover, section 422, under which Barno was charged, requires that the threat of bodily injury be "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." (Italics added.) Similarly, section 13700, subdivision (a) requires that the threat must place the victim in "reasonable apprehension of imminent serious bodily injury to himself or herself, or another." (Italics added.)
Barno asserts that the element missing is that there is no evidence that the threats placed Daniell or Jessica in a position to believe the threats were "imminent," and contends that "imminent" and "immediate" do not have the same meaning. We reject this contention.
The definition of "imminent" is "likely to occur at any moment; impending. . . . threateningly; near at hand." (Random House Unabridged Dict. (2d ed. 1993) p. 957.) "Immediate" is defined as "occurring or accomplished without delay; instant. . . . of or pertaining to the present time or moment." (Ibid.) Thus, the definitions of the terms used in section 422, under which Barno was charged, and section 13700, subdivision (a), which defines abuse, are largely synonymous. In order to convict Barno of counts 3, 4 and 10, the jury had to find that the threats placed Daniell and Jessica in "immediate" fear the threats would be carried out. Accordingly, the threats would also have placed them in "imminent" fear they would be acted upon.
However, the problem we encounter with the instruction under CALJIC No. 2.50.2 is that there were several other charged crimes that did not involve domestic violence. Nevertheless, that instruction was not limited by the court to counts 3, 4 and 10. Rather, it states that if the jury found that Barno had the disposition to commit acts involving domestic violence, "you may, but youre not required to, infer that he was likely to commit and did commit the crime or crimes of which he is accused." (Italics added.) Thus, the jury could have understood the instruction to allow them to infer from his prior act of domestic violence that he was likely to commit some or all of the charged offenses, even those not involving domestic violence. The court should have instructed the jury that if it found Barno had the disposition to commit acts involving domestic violence, "you may, but are not required to, infer that he was likely to commit and did commit counts 3, 4 and 10." Barno contends that this error by the court requires a reversal of the other felony counts not involving domestic violence (counts 1, 2 & 6-9).
However, any error by the court in using CALJIC No. 2.50.02 without limiting its application to counts 3, 4 and 10 does not require a reversal. First, defense counsel admitted that Barno committed the acts that formed the basis for the other felony charges, but argued that they only amounted to at most misdemeanor conduct. CALJIC No. 2.50.02 did not tell the jury, and the prosecutor in closing argument in no way argued, that the prior domestic violence evidence tended to prove Barno was guilty of felony, as opposed to misdemeanor conduct. Additionally, the prosecutors argument concerning the prior domestic violence incident involving Jasmin L. consisted of less than two pages of a closing argument that totaled 30 pages. Finally, the evidence overwhelmingly supported the jurys verdict on all charged offenses. Thus, it was not reasonably likely that, but for the courts error in instructing the jury under CALJIC No. 2.50.02, Barno would have received a more favorable result at trial. (People v. Watson (1956) 46 Cal.2d 818, 836.)
2. Evaluation of prior acts under Evidence Code section 352
Barno next contends that the court erred in admitting evidence of past incidents of domestic violence because the evidence was highly inflammatory and its probative value was outweighed by its prejudicial effect. We reject this contention.
A trial court has broad discretion in determining whether to admit or exclude evidence objected to on the basis of Evidence Code section 352, and rulings under this section will not be overturned absent an abuse of that discretion. (People v. Ramos (1997) 15 Cal.4th 1133, 1170.) "[T]he term judicial discretion `implies absence of arbitrary determination, capricious disposition or whimsical thinking. [Citation.]" (People v. Giminez (1975) 14 Cal.3d 68, 72.) "[D]iscretion is abused whenever the court exceeds the bounds of reason, all of the circumstances being considered." (Ibid.)
"The prejudice which exclusion of evidence under Evidence Code section 352 is designed to avoid is not the prejudice or damage to a defense that naturally flows from relevant, highly probative evidence. `[A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is "prejudicial." The "prejudice" referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying [Evidence Code] section 352, "prejudicial" is not synonymous with "damaging." [Citation.]" (People v. Karis (1988) 46 Cal.3d 612, 638, italics added.)
Relevant factors in determining the prejudice resulting from admission of prior acts of domestic violence include whether the prior acts of domestic violence were more inflammatory than the charged conduct, the possibility the jury might confuse the prior acts with the charged acts, how recent the prior acts were, and whether the defendant had already been convicted and punished for the prior offense. (See People v. Poplar (1999) 70 Cal.App.4th 1129, 1139; People v. Jennings (2000) 81 Cal.App.4th 1301, 1315.)
Applying these factors to the instant case, the court did not abuse its discretion in admitting the prior instances of domestic violence involving Jasmin. Contrary to Barnos assertion, the prior incidents of domestic violence were no more egregious than the charged offenses, and posed no danger of confusing the jury. The events were recent in time and remarkably similar to the charged conduct. They involved abusive and threatening conduct after Jasmin ended her relationship with him. Barno made repeated threatening phone calls to her, used abusive and threatening language and threatened bodily harm. This conduct mirrors the charged conduct in this case and showed a pattern of Barnos threats to and intimidation of women he dated. The incident occurred only two years prior to the threats and harassment directed at Daniell. Although one prior incident involved actual physical violence (burning Jasmin with a cigarette), it was not so much more egregious that its prejudicial impact outweighed the highly probative nature of the evidence. Jasmins description of Barnos actions was no more inflammatory than the testimony of Daniell or Jessica.
The most serious "prejudice" this evidence caused Barno was the fact it damaged his defense. However, as stated, ante, "prejudicial" is not synonymous with "damaging." (People v. Karis, supra, 46 Cal.3d at p. 638.)
Finally, Barnos claim that his due process rights were violated by admission of evidence of prior uncharged acts is unavailing. The California Supreme Court rejected such a claim in People v. Falsetta (1999) 21 Cal.4th 903, 917.
II. ADMISSION OF INVOICE REGARDING COST OF REPAIR TO DOTTAS VEHICLE
Barno asserts that the court erred in admitting the repair bill substantiating the damages to Dottas car. Specifically, Barno asserts that the repair bill was inadmissible hearsay that lacked foundation and that its admission violated his right to confront and cross-examine witnesses. We reject these contentions.
A. Background
On direct examination, Dotta testified concerning the repairs to her vehicle following the vandalism by Barno. When asked whether she recalled how much the repairs cost, defense counsel objected on hearsay grounds. The court overruled this objection.
Thereafter, the court heard further argument on the issue outside the presence of the jury. Defense counsel argued that Dotta had no personal knowledge of the cost of repair, and her testimony in this regard was therefore hearsay. The prosecutor responded that she had a bill from the Saturn dealership for the repair work, which was paid by the insurance company. Defense counsel argued that because the bill had not been prepared by Dotta, it had to be authenticated by someone from the Saturn dealership who prepared the bill. The court overruled the objection but cautioned that, out of an abundance of caution, the prosecutor "may want to have somebody come in from the Saturn Dealership from their records and say: Yeah, thats what it cost."
Direct examination of Dotta resumed. She identified a copy of the bill she received for the repair work done on her car. She stated that the bill was for $2,563. Dotta stated that she paid her deductible and her insurance company paid the rest. Photographs showing damage to her vehicle and the repair bill were admitted into evidence, over the objection of defense counsel. Defense counsel renewed his objection to the repair bill, arguing again that the document was hearsay and also that he was denied the right to cross-examine the individual that prepared it.
B. Analysis
Evidence Code section 1200, subdivision (b) states that hearsay evidence is inadmissible except as provided by law, thereby recognizing exceptions created by case law, as well as statute. (Pacific Gas & Electric Co. v. G. W. Thomas Drayage & Rigging Co. (1968) 69 Cal.2d 33 (P.G.&E.) The P.G.&E. case created what is known as the "corroborative evidence" exception to the hearsay rule for admission of business records that would ordinarily be considered hearsay. (Jefferson, Cal. Evidence Benchbook (3d ed. 2007) Hearsay Rule, § 1.18, p. 14 & § 1.24, p. 18.)
P.G.&E. addressed the admissibility of invoices, bills and receipts to prove the amount of damages the plaintiffs sustained. The Supreme Court found the documents to be hearsay and thus unusable as proof of liability, payment for the repairs or the reasonableness of the charges. (P.G.&E., supra, 69 Cal.2d at pp. 42-43.) In doing so, the high court noted, "If, however a party testifies that he incurred or discharged a liability for repairs, any of these documents may be admitted for the limited purpose of corroborating his testimony." (Id. at p. 43.) There was testimony in the record that the invoices had been paid, so that the invoices could be admitted for the limited purpose of corroborating that testimony. (Ibid.)
California courts have invoked this hearsay exception to sustain the admission of invoices (1) from a packing house after the manager of the cattle company testified to receiving them and arranging for payment (Imperial Cattle Co. v. Imperial Irrigation Dist. (1985) 167 Cal.App.3d 263, 272, disapproved on other grounds in Bunch v. Coachella Valley Water Dist. (1997) 15 Cal.4th 432, 443-444); (2) representing dental bills, where the plaintiff/patient testified as to the services received, his receipt of the bill and his payment (McAllister v. George (1977) 73 Cal.App.3d 258, 263); and (3) constituting doctor bills where the plaintiff/patients first identified each bill, testified as to what each charge was for and the amount of each which had been paid. (Rodgers v. Kemper Constr. Co. (1975) 50 Cal.App.3d 608, 626.)
The repair bill here also fell within the corroborative evidence exception to the hearsay rule. Dotta testified that she received the bill. She also testified to the amount of the bill and stated that she paid the deductible and that her insurance company paid the rest.
Barno asserts that the repair bill does not fall within the corroborative evidence exception because Dotta only paid the deductible, and there was no evidence from the insurance company that it paid the remainder. However, Dotta testified on direct examination not merely that she submitted the repair bill to her insurance company for payment, but that the insurance company paid the bill. Defense counsel did not cross-examine her as to the basis for her knowledge the insurance company paid the bill, so her testimony constitutes uncontradicted evidence of payment.
Barno also asserts that the court, in allowing the repair bill into evidence, violated his constitutional right to confront witnesses, citing the United State Supreme Courts decision in Crawford v. Washington (2004) 541 U.S. 36 (Crawford).
In Crawford, the United States Supreme Court held that testimonial evidence is admissible only when the proponent establishes unavailability and a prior opportunity for cross-examination. (Crawford, supra, 541 U.S. at p. 68.) While the court did not define the term "testimonial," the court noted that testimonial evidence at least includes prior testimony made under oath and statements made during a police interrogation. (Ibid.)
Courts have held that certain documentary evidence does not constitute testimonial hearsay and, therefore, its admission into evidence does not implicate the confrontation clause. (See, e.g., People v. Saffold (2005) 127 Cal.App.4th 979, 984 [proof of service]; People v. Johnson (2004) 121 Cal.App.4th 1409, 1413 [criminalists laboratory report].) "Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers design to afford the States flexibility in their development of hearsay law . . . ." (Crawford, supra, 541 U.S. at p. 68.)
In People v. Taulton (2005) 129 Cal.App.4th 1218 (Taulton), a Court of Appeal held that certified prison records also fall within the category of nontestimonial hearsay evidence. In determining whether evidence is testimonial under Crawford, the court held that the appropriate approach is to focus on the purpose for which the statement was made or recorded. (Taulton, supra, 129 Cal.App.4th at pp. 1223-1224.)
The court in Taulton noted that the Supreme Court specifically identified business records as nontestimonial evidence. (Taulton, supra, 129 Cal.App.4th at p. 1224, citing Crawford, supra, 541 U.S. at p. 56.) "Such records are prepared for many purposes but not to provide evidence in a potential criminal trial or to determine whether criminal charges should issue. One of the requirements for the admissibility of business records is that `[t]he writing was made in the regular course of business . . . . (Evid. Code, § 1271, subd. (a).)" (Taulton, supra, 129 Cal.App.4th at p. 1224.) Because business records are not prepared for the purpose of being used as evidence at trial, they are not testimonial under Crawford. (Taulton, supra, at p. 1224.)
Similarly in this case, the repair bill was a business record and therefore not considered testimonial under Crawford. Thus, admission of the repair bill did not violate Barnos constitutional right to confront witnesses.
III. FAILURE TO GIVE UNANIMITY INSTRUCTION ON COUNTS 3, 6, 9 AND 10
Barno asserts the court erred by failing to instruct the jury sua sponte under CALJIC No. 17.01, known as the "unanimity" instruction, as to the charges of making a criminal threat against Ballester (count 6), Eliasson (count 9) and Jessica (count 10). Barno contends that because there was evidence of several statements he made to these individuals that the jury could have relied on to find against him on these counts, and the People did not identify a particular statement it was relying on, the court was required to instruct the jury they must unanimously agree that a particular threat supported the conviction. We reject this contention.
Originally, Barno asserted that a unanimity instruction was required only for counts 6, 9 and 10. However, in a supplemental opening brief he argued that such an instruction should also have been given as to count 3.
The principles governing a trial courts duty to instruct a jury sua sponte were explained in People v. Eilers (1991) 231 Cal.App.3d 288, 292: "`The trial court functions . . . as the jurys guide to the law. This role requires that the court fully instruct the jury on the law applicable to each particular case. [Citation.] `It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citation.]"
"[T]he requirement of jury unanimity in criminal cases is of constitutional origin." (People v. Mickle (1991) 54 Cal.3d 140, 178, citing Cal. Const., art. I, § 16 & People v. Jones (1990) 51 Cal.3d 294, 321.) As this court explained in People v. Muniz (1989) 213 Cal.App.3d 1508, 1517, "[i]t is well established that the entire jury must agree upon the commission of the same act in order to convict a defendant of the charged offense. [Citation.]" In Muniz, we further explained that "it also is well established that a trial court is not obligated to give an instruction — either requested or sua sponte — if the evidence presented at trial is such as to preclude a reasonable jury from finding the instruction is applicable. [Citation.] `A unanimity instruction is required only if the jurors could otherwise disagree which act a defendant committed and yet convict him of the crime charged. [Citation.] In other words, `[i]f under the evidence presented such disagreement is not reasonably possible, the instruction is unnecessary. [Citations.]" (Id. at pp. 1517-1518.)
"When the evidence tends to show a larger number of distinct violations of the charged crime than have been charged and the prosecution has not elected a specific criminal act or event upon which it will rely for each allegation, the court must instruct the jury on the need for unanimous agreement on the distinct criminal act or event supporting each charge. [Citations.]" (People v. Avina (1993) 14 Cal.App.4th 1303, 1309, italics added.)
Moreover, no unanimity instruction is required when the crime is a continuing one, i.e., while the crime may involve the doing of individual acts the conduct is essentially indivisible in a real or evidentiary sense. (People v. Riel (2000) 22 Cal.4th 1153, 1199; People v. Sanchez (2001) 94 Cal.App.4th at p. 631.) "[N]o unanimity instruction is required when the acts alleged are so closely connected as to form part of one continuing transaction or course of criminal conduct. `The "continuous conduct" rule applies when the defendant offers essentially the same defense to each of the acts, and there is no reasonable basis for the jury to distinguish between them. [Citations.]" (People v. Dieguez (2001) 89 Cal.App.4th 266, 275.)
We address Barnos unanimity argument separately as to each count identified.
A. Count 3 (April 30, 2003 Threat to Daniell)
Count 3 involved a criminal threat made to Daniell on April 30, 2003. Barno asserts that because there was evidence of two phone calls on April 30, 2003, in which he made threatening comments to both Daniell and her mother Helen, and the prosecutor failed to specify which of the two calls constituted the criminal threat for count 3, the court was required to give a unanimity instruction. This contention is unavailing.
In closing argument, the prosecutor clearly specified that the criminal threat that supported count 3 was the statement he made directly to Daniell on April 30, 2003, "Youll get it, bitch." No mention is made of the threat to Daniells mother.
Barno points to a statement later in closing argument where the prosecutor also mentioned the threat to Daniells mother. However, the prosecutor only referenced that threat in discussing the circumstances surrounding the threat to Daniell that made it "unconditional, immediate and specific," one element of the crime of making a criminal threat. In this regard, the prosecutor stated:
"The fourth element has to do with the circumstances demonstrating that the threat is unconditional, immediate and specific. And what the instructions tell us is that we look to the circumstances and the relationship between the threatener [sic] and the threatened person. It says the threat on its face and under the circumstances in which it was made was so unequivocal, unconditional, immediate and specific so as to convey to that person a gravity of purpose. [¶] So we look to the circumstances and to the context between the two parties. Did the victim understand what was meant by the threatening statement? Lets look at some of the circumstances surrounding these threats. [¶] On April 30 Daniell was threatened. Her mom was threatened the same day, and Detective Reno called to tell them, "Look, a search warrant just happened. I wanted to let you know because there might be retaliation." (Italics added.)
From this discussion it is clear that the prosecutor was relying on the threat to Daniell to support count 3 and merely discussed the threat to her mother to show the surrounding circumstances and context in which it was made. No unanimity instruction was necessary on count 3.
B. Count 6 (Threat to Matthew Ballester)
The information alleged that between February 20, 2003 and February 25, 2003, Barno made criminal threats against Ballester. Barno asserts that because the evidence showed several threats to Ballester, and the prosecutor did not elect one act as the criminal threat that supported count 6, the court erred in failing to sua sponte give the jury a unanimity instruction.
In closing argument, the prosecutor, as with count 3, did direct the jury to a particular threat that supported this count: "What Ive done is just to go through the counts that charge this section with the specific threats. Count 3, `Youll get it, bitch. [¶] Count 4, `Tell Daniell shes fucking dead. [¶] Count 6, `Im going to fuck you up, followed by his address." (Italics added.)
Barno asserts that the prosecutor was combining two different threats as the statement regarding Ballesters address came in a different telephone call than the "Im going to fuck you up" statement. It is true, as detailed, ante, that the statement regarding Ballesters address did come in a different telephone call than that statement. However, it is clear that the threat the prosecutor was focusing on was made clear to the jury. The prosecutor was either referencing the address statement to show the surrounding circumstances of the threat or was simply mistaken in stating that it was made in the same telephone call as the threat. Regardless, merely reciting Ballesters address was not a threat in and of itself, and it is not reasonably likely that the jury was confused as to which threat the prosecutor was relying on to support count 6.
Further, to the extent that the prosecutors election of a specific threat was not clear enough, any error was harmless. The sole defense to the criminal threat counts was that Barnos conduct amounted to only misdemeanor conduct of making annoying or harassing phone calls under section 653, subdivision (m). Where a defendant offers a unitary defense to all charges, and the jury rejects that defense, the failure to give a unanimity instruction is harmless error. (People v. Wolfe (2003) 114 Cal.App.4th 177, 185-187.)
C. Count 9 (Criminal Threat Against Eliasson)
Under count 9, Barno was charged with making a criminal threat against Robert Eliasson on July 28, 2003. As with count 6, Barno asserts that because he was alleged to have made several separate threats against Eliasson on the afternoon of July 28, 2003, the court erred in failing to give a unanimity instruction on count 6.
Contrary to Barnos argument, the prosecutor did select a specific threat as against Robert Eliasson: "Count [9] to Robert Eliasson, `How about if I come over there and beat the shit out of you and your mother? How about if I come over there and kill you and your mom?"
Barno complains that the two statements were threats made in different phone calls, and therefore the prosecutor did not make an election between threats. However, the prosecutor later clarified that she was focusing only on the death threat in support of count 9: "Robert Eliasson got a very specific death threat. `How about if I come over there and kill you? And heres your address in case you think I cant do it." No unanimity instruction was required as to count 9.
D. Count 10 (Criminal Threat Against Jessica G.)
Count 10 alleged that between October 7 and 10, 2002, Barno made a criminal threat against Jessica G. Barno again asserts that because there was evidence presented as to several threats, and the prosecutor did not elect a specific threat that supported this count, the court was required to give a unanimity instruction. We reject this contention.
In closing arguments the prosecutor made clear which threat she was relying on to support count 10: "In count 10 to Jessica [G.] through her father Alfred [G.], `Im going to fuck up your daughter." Later, the prosecutor again specified the threat that supported count 10: "[To] Jessica [G.] [he] again communicated a threat through a family member: `Im going to fuck up your daughter." There was no unanimity instruction required for count 10.
IV. EVIDENCE SUPPORTING CRIMINAL THREAT CONVICTIONS ON COUNTS 3, 6 AND 7
Barno asserts the evidence is insufficient to support his conviction for making the count 3 criminal threat against Daniell and the count 6 and 7 criminal threats against Ballester. This contention is unavailing.
A. Standard of Review
"In assessing a claim of insufficiency of evidence, [we review] . . . the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence — that is, evidence that is reasonable, credible, and of solid value — such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
B. Elements Necessary To Prove Criminal Threat Under Section 422
Section 422 provides in part: "Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement, made verbally, in writing, or by means of an electronic communication device, is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is 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, and thereby causes that person reasonably to be in sustained fear for his or her own safety or for his or her immediate familys safety, shall be punished by . . . imprisonment in the state prison." (Italics added.)
Thus, in order to prove a violation of section 422 the prosecution must establish the following elements: "(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 familys safety, and (5) that the threatened persons fear was `reasonabl[e] under the circumstances." (People v. Toledo (2001) 26 Cal.4th 221, 227-228.)
We address the evidence supporting counts 3, 6 and 7 in order.
C. Analysis
1. Count 3 (criminal threat against Daniell)
Count 3 alleged that on April 30, 2003, appellant made a criminal threat against Daniell. Barno asserts that the evidence is insufficient on that count based upon Daniells mothers equivocal testimony concerning a phone call she received from Barno on that date.
Her mother, Helen, testified on direct examination that on April 30, 2003, Barno, in a telephone call, threatened to kill both her and her daughter. The caller stated, "You fucking bitch, youre dead. You and Daniell are dead." However, on cross-examination, Helen admitted that she was unsure whether the caller referred to her daughter. Moreover, when she made a report to police shortly after the incident, she did not tell them that her daughter was mentioned in the threat. She told the officer that Barno stated, "Youre dead. Watch your back, bitch." She later told another officer that Barno had stated, "Youre dead, bitch. You better watch your back."
However, Barno ignores the fact that count 3 was not based upon the phone call to Helen, but one to Daniells cell phone on that same date. On April 30, 2003, she received a phone call from Barno, who stated, "Youll get it, bitch." In arguing count 3 to the jury, the prosecutor relied upon that threat, not the phone call to Helen. In fact, in his reply brief Barno concedes that the call to Daniell supported count 3 and that there is substantial evidence to support the count 3 conviction based upon that phone call. Substantial evidence supports the conviction for the count 3 criminal threat made against Daniell.
2. Counts 6 and 7 (criminal threats against Ballester)
Barno asserts that there is no substantial evidence to support elements 1, 3 and 4 of section 422 as to the count 6 and 7 criminal threats made against Ballester. We reject this contention.
The evidence demonstrates that the threats by Barno, made directly and through Ballesters brother Michael, were threats "to commit a crime that would result in death or great bodily injury." Directly to Ballester, Barno stated that "he was coming to get him," told him to "watch his back", and that he was going to "fuck him up." Through his brother Michael, he again threatened to "fuck him up." The only reasonable interpretation of these threats was that Barno intended to cause great bodily injury to Ballester.
Further, Barnos threats were 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." The fact that Barno recited Ballesters address to him in one call conveyed to Ballester that the threat was immediate and could be carried out. After Barno told Ballesters brother Michael that he was going to "fuck up" his brother, he called back and said, "So you think this is a joke?", and stated that he was "coming over there tonight." This evidence amply supports element 3 of section 422.
Moreover, the evidence showed that the threats caused Ballester to be in sustained fear for his safety and that of his family. Section 422 does not define "sustained fear." (People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) However, the California Supreme Court has interpreted the term to mean "a period of time that extends beyond what is momentary, fleeting, or transitory." (Ibid.) Ballester testified that he took Barnos threats seriously. As a result of the threats, he took different routes home, paid more attention to what he was doing, and did not park his truck in the driveway. He was worried for himself and his family. He told police he was "very frightened for [his] safety and the safety of [his] family." His family took security precautions including closing their windows at night and placing a chain lock on the door. This evidence was sufficient to satisfy element 3, as Ballesters fear was for a period of time that was more than "momentary, fleeting, and transitory." Substantial evidence supports the count 6 and 7 criminal threat convictions.
V. AIDING AND ABETTING INSTRUCTIONS
Barno asserts that the court erred by not instructing the jury on aiding and abetting liability because, as to the stalking charges in counts 1 and 2, there was evidence that he did not make all of the threatening phone calls to Daniell and her mother, Helen. Barno asserts that the evidence suggests that an unidentified female made some of the calls, and that Helen testified that she received calls from male individuals that she could not identify. Barno contends that because he "was prosecuted, at least in part, for criminal acts perpetrated by other people, the trial court committed error by failing to instruct on principles of aiding and abetting.
However, as the People point out in their respondents brief, there is no evidence in the record that Barno was prosecuted on an aiding and abetting theory as to counts 1 and 2. Rather, the record is clear that the People based their case for these counts on Barnos actions, not the actions of others. Indeed, as noted, ante, defense counsel at trial admitted Barno committed these acts, but argued they only warranted misdemeanor, not felony, convictions. The court did not err in failing to instruct on aiding and abetting.
VI. ACCOMPLICE INSTRUCTIONS
Barno asserts that Daniell was an accomplice, as a matter of law, to the vandalism committed by Barno against Dottas vehicle because Daniell drove him to the crime scene. Because of this, Barno asserts the court erred by failing to instruct the jury on the law pertaining to accomplices, including the fact that the testimony of a witness who is also an accomplice should be viewed with caution and must be corroborated. This contention is unavailing.
An "accomplice" is "one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given," that is, one who is considered a "principal" in the offense. (People v. Horton (1995) 11 Cal.4th 1068, 1113-1114.) A "principal" is one who is "concerned in the commission of a crime [regardless of] whether [he or she] . . . directly commit[s] the act constituting the offense, or aid[s] and abet[s] in its commission." (§ 31.) One is liable as an aider and abettor if he or she acts with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (People v. Stankewitz (1990) 51 Cal.3d 72, 90-91; People v. Marshall (1997) 15 Cal.4th 1, 40.)
Where the evidence at trial is sufficient to support a conclusion that a witness who implicates the defendant was an accomplice, the court is required to instruct the jury, sua sponte, to determine whether the witness was an accomplice. (People v. Warren (1940) 16 Cal.2d 103, 106; People v. Frye (1998) 18 Cal.4th 894, 965.) If, however, the facts regarding the witnesss criminal culpability are "clear and undisputed" (People v. Williams (1997) 16 Cal.4th 635, 679), the court must instruct the jury that the witness was an accomplice as a matter of law. (People v. Zapien (1993) 4 Cal.4th 929, 982.) In either situation, the court must also instruct the jury that the accomplices testimony implicating the defendant must be corroborated. (§ 1111.)
Here, the evidence does not support a finding that Daniell was an accomplice to Barno when he vandalized Dottas vehicle. The only evidence on this issue was that Daniell drove Barno to the scene and obeyed his commands to park at the end of the street, leave the engine running, and turn the lights off.
This evidence is insufficient to support a theory that Daniell was Barnos accomplice. Whether an individual is an accomplice "depends on whether he promotes, encourages, or assists the perpetrators . . . criminal purpose." (People v. Sully (1991) 53 Cal.3d 1195, 1227.) "It is not sufficient that he merely gives assistance with knowledge of the perpetrators criminal purpose." (Ibid.) Moreover, mere presence at the scene of a crime or a failure to prevent a crime is insufficient to prove accomplice liability. (People v. Nguyen (1993) 21 Cal.App.4th 518, 530.)
In this case, the fact that Daniell drove Barno to the site of his vandalism and waited while he was committing the crime was insufficient evidence to require accomplice instructions as to Daniell, much less that she was an accomplice as a matter of law.
Moreover, the erroneous omission of accomplice instructions is deemed harmless where there is sufficient evidence corroborating the witnesss testimony. (People v. Arias (1996) 13 Cal.4th 92, 143.) Such corroborative evidence need not corroborate every fact to which the witness testified. It is sufficient if it tends to connect the defendant with the crime in such a way as to satisfy the jury that the accomplice is telling the truth. (People v. Williams, supra, 16 Cal.4th at p. 679.)
Here, Daniells testimony concerning the vandalism to Dottas car was corroborated both by Dottas testimony and Barnos statements to her and another individual. After discovering her car had been vandalized, Dotta received a phone call from Barno. He warned her not to implicate him in the vandalism. Later, he called her and told her that he had vandalized Daniells and Cardinals cars and bragged that he had done greater damage to those cars than to hers. Barno also told Laverty that he had vandalized Dottas car. Thus, Daniells testimony was sufficiently corroborated by other witnesses, and Barnos own admissions to them, and any erroneous failure to give accomplice instructions as to Daniell did not result in prejudice.
VII. RIGHT TO A JURY TRIAL ON PRIOR JUVENILE ADJUDICIATIONS
Barno asserts that he was afforded ineffective assistance of counsel because his trial attorney did not object to the courts use of his prior juvenile adjudications as strikes. In a supplemental opening brief Barno directly challenges the courts use of his prior juvenile adjudications as strikes, claiming that the court erred in doing so. On both claims, Barno contends that Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), and United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe) compel the conclusion that the trial courts use of his prior juvenile adjudications as strikes violated his federal constitutional rights to due process and a jury trial. We reject this contention.
In Apprendi, the United States Supreme Court held that the due process clause of the Fourteenth Amendment requires that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt." (Apprendi, supra, 530 U.S. at p. 490.) In Tighe, the Ninth Circuit held that, under Apprendi, a defendants prior juvenile adjudication could not constitutionally qualify as a prior conviction under title 18 United States Code section 924(e), a federal sentencing statute for repeat offenders, if that adjudication did not accord a defendant the right in that adjudication to have the matter submitted to a jury and proved beyond a reasonable doubt. (Tighe, supra, 266 F.3d at pp. 1193-1194.)
Following the Ninth Circuits decision in Tighe, several decisions of the California Court of Appeal have held that it is constitutionally permissible to use a defendants prior juvenile adjudication as a strike for sentencing purposes. (See People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834; People v. Lee (2003) 111 Cal.App.4th 1310, 1312-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1075-1079; In re Travis W. (2003) 107 Cal.App.4th 368, 378; People v. Bowden (2002) 102 Cal.App.4th 387, 390-394.) These cases have distinguished Tighe, noting that Californias Three Strikes law, unlike the federal sentencing law at issue in Tighe, requires that a prior conviction, including a prior juvenile adjudication, be proved beyond a reasonable doubt, and provides for the right to a jury trial on the issue of whether a defendant has suffered a prior conviction. (Andrades, supra, 113 Cal.App.4th at pp. 833-834.) These procedural safeguards satisfy the due process concerns expressed in Apprendi, supra, 530 U.S. 466. (Andrades, supra, 113 Cal.App.4th at pp. 833-834 .)
Based upon these authorities, we also conclude that "a prior juvenile adjudication may constitutionally be used as a `strike despite the fact that there is no right to a jury trial in juvenile proceedings." (Andrades, supra, 113 Cal.App.4th at p. 834.) Thus, the trial court did not err by using Barnos prior juvenile adjudications as strikes for purposes of sentencing under the Three Strikes Law, and trial counsels failure to object to the courts use of the prior juvenile adjudications as strikes also did not amount to ineffective assistance of counsel.
VIII. COURTS REFUSAL TO DISMISS PRIOR STRIKES
Barno contends the court abused its discretion by denying his motion to strike two of his juvenile adjudication strike priors under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). Specifically, Barno asserts it was an abuse of discretion because the two strikes arose from a single criminal act. We reject this contention.
A. Background
Barnos juvenile adjudications stemmed from one incident involving two victims. In July 1994, two months before Barnos 18th birthday, he argued with two individuals, a 15-year-old female and a 19-year-old male, who were at his house. Barno told them to leave. He grabbed what appeared to be an AK-47 machine gun with a loaded clip. He pointed the gun at the female victim. The male victim grabbed the barrel and pushed it away. Barno then said, "[Y]ou dont think I wont shoot your fuckin ass?" The victims started to leave. Barno followed them out of his house, keeping the gun pointed at them. Suddenly, both victims and several neighbors heard a gunshot. The victims then left the area.
At trial, Barno admitted the three prior juvenile adjudications: two counts of assault with a deadly weapon (§ 245, subd. (a)), and one count of negligent discharge of a firearm (§ 246).
At sentencing, Barno moved to strike two of the prior juvenile adjudications. He argued that the case should be treated as a one strike case because the negligent discharge of a firearm and the two counts of assault with a deadly weapon all arose from a single incident.
The court denied the motion to strike. In doing so, the court indicated that it had reviewed the materials submitted by the People and defense counsel, as well as the probation report. The court found that Barno continued to be a danger to others. The court noted that it was reported that during the trial of Barnos case he solicited another inmate to kill Daniell and two other witnesses. The court also stated that the three juvenile adjudications were "serious strikes" involving him pointing a loaded weapon at the victims, threatening to shoot them and then firing a shot. The court also noted that when he was arrested, as a juvenile, he threatened a deputy sheriff stating, "I know where you live. I am going to fuck your wife in front of you, then kill you." The court noted that Barnos record indicated "habitual criminal conduct." As the court put it, "I think one of the most telling things about [Barno] is that hes suffered the consequences and they have slowed him down not at all. Hes suffered being locked up for almost four years in C.Y.A., and the first thing he does when he gets out is start having a relationship with an underage girl, stalking, harassing, threatening her, burning her in the face with a cigarette. . . . [A]nd then we have the amazing series of crimes that you saw in this case . . . ." The probation report indicated that Barnos prior performance on probation and prior performance on C.Y.A. parole were unsatisfactory.
With regard to the current offenses, the court stated that Barno "struck terror into the hearts of many . . . people. They were terrified of him. And its gone on for years. And it doesnt make any difference. He will terrify whoever he can, primarily women." The court noted that Barno committed the acts even though he had restraining orders against him. The court also noted that throughout the proceedings Barno showed no remorse for what he had done. The court found that this was not the unusual case where Barno was outside the spirit of the three strikes law.
B. Analysis
Under section 1385, subdivision (a), a trial court, on its own motion and in furtherance of justice, is permitted to strike prior felony conviction allegations in three strikes cases. (Romero, supra, 13 Cal.4th at pp. 529-530.) "[I]n ruling whether to strike or vacate a prior serious and/or violent felony conviction allegation or finding under the Three Strikes law, on its own motion, `in furtherance of justice pursuant to [section] 1385[, subdivision] (a), or in reviewing such a ruling, the court in question must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
"[A] courts failure to dismiss or strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374.) This determination is guided by two fundamental precepts that "establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.) "`"An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge." [Citations.]" (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978, cited with approval in People v. Carmony, supra, 33 Cal.4th at p. 377.)
The first precept guiding the review places the burden "`"on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary."" (People v. Carmony, supra, 33 Cal.4th at p. 376.) The second establishes "`"a decision will not be reversed merely because reasonable people might disagree."" (Id. at p. 377.)
In asserting that the court abused its discretion in refusing to strike two of his prior juvenile adjudications, Barno relies on the California Supreme Court case, People v. Benson (1998) 18 Cal.4th 24. The defendant in Benson had two strikes: residential burglary and assault with intent to commit murder. Both strikes arose from a knife attack on a single victim inside her apartment. In the underlying prosecution the trial court stayed the sentence imposed for the assault under section 654. When the two convictions were later charged as strikes, the trial court declined to dismiss one of them. The Supreme Court affirmed. It held that the three strikes law reflects a legislative intent to treat as separate strikes convictions for which separate punishment would be barred under section 654. (People v. Benson, supra, 18 Cal.4th at pp. 28-29.)
In a footnote cited by Barno, the high court observed, "Because the proper exercise of a trial courts discretion under section 1385 necessarily relates to the circumstances of a particular defendants current and past criminal conduct, we need not and do not determine whether there are some circumstances in which two prior felony convictions are so closely connected—for example, when multiple convictions arise out of a single act by the defendant as distinguished from multiple acts committed in an indivisible course of conduct—that a trial court would abuse its discretion under section 1385 if it failed to strike one of the priors." (People v. Benson, supra, 18 Cal.4th at p. 36, fn. 8, italics added.)
The Second District Court of Appeal applied the decision in People v. Benson to a situation where there were two prior strikes convictions for attempted carjacking and attempted robbery arising out of one incident, and with one victim. (People v. Burgos (2004) 117 Cal.App.4th 1209, 1216.) The defendant urged the trial court to dismiss one of the strike findings because the convictions arose from a single criminal act when he approached a man and demanded his car, but was frightened off. (Id. at p. 1212, fn. 3.) The trial court denied his request. (Id. at p. 1212.) On appeal, the court agreed with the defendant and concluded that the trial court abused its discretion. (Id. at pp. 1216-1217.) The holding on Burgos, however, was not based solely on the two prior strike convictions being based on a single act; the court also held the defendants current offenses were not "under the circumstances, the worst of crimes," and his criminal history, aside from his current convictions and prior strike convictions, consisted of misdemeanors and one felony that was not a strike. (Id. at pp. 1216-1217.)
The circumstances presented here do not demonstrate that Barno is so far outside of the spirit of the three strikes law that the courts decision not to dismiss two of his strike adjudications was arbitrary or irrational. First, People v. Burgos is distinguishable from the situation presented here because, although the prior juvenile adjudications resulted from one incident, there were two victims. Further, the current convictions, consisting of a total of nine felony counts, were serious crimes. Additionally, Barnos background, character and prospects demonstrate that he falls well within the spirit of the three strikes law. His recidivist nature, and failure in the past to perform satisfactorily on probation and parole, "`reveals that [he] had been taught, through the application of formal sanction, that [such] criminal conduct was unacceptable — but had failed or refused to learn his lesson." (People v. Williams, supra, 17 Cal.4th at p. 163, quoting People v. Gallego (1990) 52 Cal.3d 115, 209, fn. 1 (conc. opn. of Mosk, J.).)
In sum, the courts decision to deny Barnos motion under Romero, supra, 13 Cal.4th 497 was not "so irrational or arbitrary that no reasonable person could agree with it." (People v. Carmony, supra, 33 Cal.4th at p. 377.)
DISPOSITION
The judgment is affirmed.
WE CONCUR:
HALLER, J.
McDONALD, J.