Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
San Mateo County Super. Ct. No. 58965
Siggins, J.
Shakeyma Yvette Brooks was convicted by a jury of assault with a deadly weapon. In this appeal, she argues that the trial court erred because it improperly instructed the jury on self-defense, admitted evidence that was irrelevant or unduly prejudicial, and imposed an upper term sentence that violated her federal constitutional rights.
FACTUAL AND PROCEDURAL BACKGROUND
Pamela Bourne was working as a plainclothes loss prevention officer at a FoodsCo store, along with her partner Kevin Thomas, when she saw a woman hide a bottle of seasoning salt in her purse, and leave the store without paying for it. The woman was defendant’s mother, Pamela McNair. Bourne encountered McNair pushing her shopping cart outside the store, identified herself to McNair as a loss prevention officer, and showed McNair her badge.
McNair was uncooperative with requests that she return to the store and attempted to leave the scene. Another woman, later identified as defendant’s sister, approached McNair, Bourne and Thomas. Defendant’s sister told Bourne and Thomas to leave her mother alone. Although Bourne and Thomas identified themselves as loss prevention officers, defendant’s sister appeared to be violently angry and joined the struggle between her mother and the store officers over the shopping cart. The four were also joined by Nicholas Mendez, an assistant store manager who was dressed in his store uniform and wearing an identification badge.
Defendant approached the group and said, “That’s my mom. Let her go.” As she approached, she swung a metal baseball bat. Thomas warned Bourne to duck and defendant’s bat missed Bourne’s head. When defendant swung the bat, Thomas kicked her in an attempt to block it. Defendant then ran to a parked car, got in, and drove the car at the group. Defendant would have run over Bourne and Mendez if Bourne had not pushed Mendez out of the way as the car approached. Defendant then reversed and drove the car at Thomas, who also jumped out of the way to avoid being hit. Defendant then drove away.
Guadalupe Lara noticed the commotion as she was driving by, and stopped to watch the incident from a few feet away. Lara described the same essential sequence of events and identified defendant as the person who swung the bat and drove at the group. She heard both Bourne and Thomas repeatedly identify themselves to defendant as loss prevention officers.
San Mateo Police Officer Russ Hughes responded to the incident, spoke with the witnesses and began to search for defendant. Hughes was hailed by Les Webster, a bystander who provided Hughes a direction in which defendant had fled. When he was unable to locate defendant by following Webster’s directions, Officer Hughes returned to the scene to find defendant getting out of the driver’s seat of her red Pontiac Grand Am. Lara, Bourne, and Mendez, without hesitation, identified defendant at the scene. She was cited and released.
Defendant was charged with five counts of assault with a deadly weapon, two counts for use of the baseball bat on Bourne and Thomas, and three counts for the attempt to hit Bourne, Thomas, and Mendez with her red Pontiac Grand Am. The information alleged defendant was ineligible for probation because she was on probation at the time of the offenses and had two prior convictions.
The same information charged defendant’s mother with petty theft with a prior and she was apparently tried separately.
Lara testified about her observations at the scene, and Bourne and Mendez described defendant’s assault on them with a baseball bat and her red car. Officer Hughes described his investigation. Webster testified for the defense. He denied giving directions to Officer Hughes, and said he saw a White or Mexican man pushing and hitting defendant at the beginning of the altercation, when no one else was present. Webster also testified that defendant did not have a bat during the altercation, and drove a car that was tan, not red.
Defendant was convicted by the jury on all five counts and sentenced to the four-year upper term on count one, with the remaining sentences to run concurrently or stayed. She timely appealed.
The court initially stated it would suspend imposition of sentence on the remaining counts, but later recalled the sentence and imposed concurrent terms on those counts. The minute order and abstract of judgment listed the terms on the remaining counts as stayed pending completion of the term on count one. Defendant does not challenge this discrepancy, nor does it affect her total term of imprisonment. (See People v. Matthews (1999) 70 Cal.App.4th 164, 169, fn. 4.)
DISCUSSION
A. Jury Instructions on Self-Defense
Defendant makes two arguments challenging the court’s instructions on self-defense. She says the instructions were not warranted because the issue of self-defense was not raised by the evidence. She also claims that the self-defense instructions, in combination with an instruction on the defense of others that was requested by the defendant, erroneously led the jury to believe the defendant could have acted in defense of her mother only if her mother had a reasonable belief force was necessary to prevent her injury. We disagree with both arguments.
“The trial court is obligated to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request.” (People v. Blair (2005) 36 Cal.4th 686, 744; People v. Breverman (1998) 19 Cal.4th 142, 154 [sua sponte duty]; People v. Flannel (1979) 25 Cal.3d 668, 684 [duty upon request].) But as defendant points out, in doing so, it must “refrain from instructing on principles of law which not only are irrelevant to the issues raised by the evidence but also have the effect of confusing the jury or relieving it from making findings on relevant issues.” (People v. Satchell (1971) 6 Cal.3d 28, 33, fn. 10.) Here, we conclude that the instructions on self-defense were neither irrelevant in light of the evidence nor confusing to the jury.
Several witnesses at trial described the defendant reacting to blows that were inflicted upon her. Witnesses Bourne and Mendez testified that Thomas kicked defendant in the hip as she swung the bat. Lara also testified that Thomas kicked out at defendant, but thought his foot hit the bat. Webster testified that he saw a “[w]hite guy or a Mexican guy” pushing and hitting defendant at the beginning of the confrontation, when no others were present. Even though the defense did not argue self-defense to the jury, there was evidence to support giving the self-defense instructions.
Defendant also contends the self-defense instructions were erroneous because when considered with the defense of other instructions that were given by the court, the jury was required to place the defendant in her mother’s shoes in order to determine whether she could have defended her mother with force. Defendant correctly points out that California law requires only that defendant acted upon her perception of danger and as a reasonable person would act in a similar situation. (See People v. Randle (2005) 35 Cal.4th 987, 997-1001.) But defendant is incorrect in her claim that the instructions in this case directed the jury to apply a different standard.
In order to assess this claim of error, we must consider “whether it is reasonably likely the jurors understood the instruction as appellant suggests. [Citation.] In making that determination, we must consider several factors including the language of the instruction in question [citation], the record of the trial [citation], and the arguments of counsel.” (People v. Nem (2003) 114 Cal.App.4th 160, 165.) The self-defense instructions repeatedly stated that the exercise of the right of self-defense is based upon what appears to be reasonably necessary to a reasonable person in a similar situation as the defendant. The defense of others instruction, requested by defendant, states that defendant could use force which would appear “reasonably necessary and which would appear to a reasonable person in the same or similar circumstances necessary to prevent” imminent injury. None of these instructions directed the jury to analyze whether the defendant was justified in using force by considering the circumstances from her mother’s perspective, or as defendant claims, in her mother’s shoes. The language of the instructions does not support defendant’s interpretation.
Neither does anything else in the record support a conclusion that the jury was misled or confused about these instructions. The prosecution’s closing argument reiterated the defense of others instruction that defendant could use all force that “would appear to a reasonable person in the same or similar circumstances to be necessary to prevent injury to that third party.” The prosecutor also argued that defendant did not act in defense of her mother, but acted because she was angry that her mother was detained for suspected shoplifting. Defense counsel barely mentioned defense of others, except to state in a conclusory fashion that defendant “can actually go and use force in the defense of another, whether it’s the sister, whether it’s the mother.” Thus, defendant’s argument was that her use of force was justified to protect either her sister or her mother. There is nothing about these arguments that reasonably can be said to implore the jury to consider defendant’s need to use force as seen through her mother’s perspective, or “in her shoes.”
We conclude that it was not error for the court to instruct on self-defense, and that as given, the instructions did not mislead or confuse the jury. In light of our conclusion, we will not address defendant’s claim that the alleged error in the instructions was prejudicial.
B. Evidentiary Rulings
Defendant also contends the cumulative effect of irrelevant and unduly prejudicial testimony by Officer Hughes requires reversal. Defendant argues this is especially true when the cumulative effective of these erroneous evidentiary rulings is considered in light of the instructional error. We have already determined the instructions were not erroneous. We will now address the admissibility and cumulative effect of Officer Hughes’s testimony.
The arguments challenging Officer Hughes’s testimony take issue with the court’s decisions to allow the prosecution to explore four areas of inquiry. The court allowed the officer to testify about what the police dispatcher told him while he was on his way to the scene of the crime. He was permitted to testify that he concluded witness Les Webster provided him incorrect information when he pointed out the direction of defendant’s flight from the scene. He was allowed to testify regarding a later separate incident at the FoodsCo store involving defendant’s father. He was allowed to testify that the statements offered by certain witnesses during trial were consistent with what he learned from those witnesses when he was investigating the crime.
We review the admission of Officer Hughes’s testimony for an abuse of discretion. (People v. Garceau (1993) 6 Cal.4th 140, 177.) If we conclude it was error to admit some or all of the challenged testimony, we must consider whether the error was prejudicial by determining whether in absence of the error, a more favorable outcome for defendant would have been reasonably probable. (See People v. Samuels (2005) 36 Cal.4th 96, 113-114 [evidentiary errors found harmless under Watson standard of review].)
Defendant argues that the “errors should be reviewed under a Chapman standard.” But Chapman would apply were we to find errors of constitutional significance, and we find none. (Cf. People v. Williams (1971) 22 Cal.App.3d 34, 45-46, 57-58 [court was “not satisfied beyond a reasonable doubt that the totality of error [it had] analyzed did not contribute to the guilty verdict” when comment upon defendant’s failure to testify was compounded by erroneous jury instructions and the defendant suffered “inadequa[te] legal representation in a crucial stage of the trial”]; see also In re Rodriguez (1981) 119 Cal.App.3d 457, 469-470 [applying Chapman standard to multiple violations of defendant’s federal constitutional rights].) Moreover, even were we to analyze error in this case under a Chapman standard here, we would find it harmless.
Officer Hughes’s testimony about what the dispatcher told him was admitted to explain his actions following receipt of the police dispatch directing him to the scene, and the jury was instructed that it was admitted for that limited purpose. Defendant objected on the grounds that the testimony about what the dispatcher said was hearsay. But this testimony was not offered to prove the truth of the dispatcher’s statements. It was offered to explain Officer Hughes’s actions following the call. Officer Hughes’s testimony about what he was told by the police dispatcher was not hearsay and was properly admitted. (See People v. Mitchell (2005) 131 Cal.App.4th 1210, 1224.)
Defendant argues Officer Hughes’s testimony about his conclusion that witness Les Webster provided him incorrect directions of defendant’s flight from the scene was irrelevant. The court allowed it to explain Officer Hughes’s state of mind during his investigation at the scene of the crime and gave the jury a limiting instruction to that effect. We also conclude it was relevant to show the officer’s state of mind and impressions at the scene. We also consider it relevant because in his answer explaining how he concluded Mr. Webster was incorrect, he said it was because Webster’s account was at odds with other witnesses at the scene. Both what Officer Hughes learned at the scene and prior statements by witness Webster were relevant.
We agree with defendant that the testimony concerning the incident at the FoodsCo store involving defendant’s father was irrelevant and it was error to allow it into evidence.
Finally, Officer Hughes was allowed to testify that the trial testimony of witnesses Lara and Bourne was consistent with what they told him when he responded to the scene of the crime. Defense counsel objected to questions concerning those prior statements because they exceeded the scope of the officer’s direct examination and sought irrelevant evidence. The objections were properly overruled. The subject of Lara and Bourne’s statements to Officer Hughes was a topic of defense counsel in her cross-examination. There is no reason why the prosecutor could not discuss those prior statements in her redirect examination. The objection based upon the scope of direct examination was without merit. The testimony was also relevant and properly could be used to rehabilitate witnesses Lara and Bourne. In her examination of Lara and Bourne, defense counsel challenged their credibility and raised an inference their accounts were not accurate. It was therefore permissible for the prosecution to introduce the evidence of their prior consistent statements. (Evid. Code, § 791.)
Accordingly, we conclude the court erred in allowing Officer Hughes to testify about the incident at the FoodsCo store that occurred after the events giving rise to the charges in this case. Defendant argues that allowing the officer to testify regarding an angry exchange between her father and store personnel created “the impression that Ms. Brooks was a member of [a] violent, intemperate family, and that the allegations of her behavior were consistent with that of her parents.” In light of all the other evidence in this case, we cannot conclude that the admission of evidence regarding this later incident was a significant error. It is not reasonably probable this trial would have ended differently had the court excluded it. (People v. Samuels, supra, 36 Cal.4th at p. 113.)
C. Imposition of Upper Term Sentence
Defendant argues that the imposition of an upper term sentence on count one violated her federal constitutional rights because it was based on aggravating factors not found by a jury beyond a reasonable doubt. The court stated that it imposed the upper term because, in part, defendant had suffered prior convictions and was on probation at the time the crime was committed. Defendant relies on Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856], where the high court concluded California’s determinate sentencing law violated the Sixth Amendment because it “allocate[d] to judges sole authority to find facts permitting the imposition of an upper term sentence[.]” (Id. at p. 876.)
In its recent decision in People v. Black (2007) 41 Cal.4th 799, our Supreme Court concluded that “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Id. at p. 813.) Noting “the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term” under California’s determinate sentencing law, the court therefore concluded that “if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely [v. Washington (2004) 542 U.S. 296], the defendant is not ‘legally entitled’ to the middle term sentence, and the upper term sentence is the ‘statutory maximum’ ” for Sixth Amendment purposes. (Ibid.)
Applying these conclusions to the facts before it, the Black court noted the high court “consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction[,] [citations] [and that] ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ ” (People v. Black, supra, 41 Cal.4th at p. 818.) On that basis, the court reasoned defendant’s criminal history alone rendered him eligible for the upper term sentence. (Ibid.)
Similarly here, the court identified at least two recidivist factors—defendant had prior convictions and was on probation at the time she committed these crimes—which rendered her eligible for the upper term. (People v. Black, supra, 41 Cal.4th at p. 819 [numerous decisions have held that consistent with the Sixth Amendment, trial courts may determine “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions”].) Thus, defendant suffered no Sixth Amendment violation by the trial court’s exercise of its discretion in selecting the upper term in this case. (Id. at p. 820.) As defendant acknowledges, we are bound by our Supreme Court’s ruling under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.
DISPOSITION
The judgment is affirmed.
We concur:
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.