Opinion
B157865.
7-28-2003
THE PEOPLE, Plaintiff and Respondent, v. TERRENCE LEE BROWN, Defendant and Appellant.
Jeffrey S. Kross, under appointment by the Court of Appeal, for Defendant and Appellant. Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Susan Sullivan Pithey and Jeffrey A. Hoskinson, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Terrence Lee Brown appeals from the judgment entered following a jury trial that resulted in his convictions for first degree burglary, assault by means likely to produce great bodily injury, and inflicting corporal
injury upon a cohabitant. Brown was sentenced to a prison term of 25 years to life pursuant to the Three Strikes law, plus six years.
Brown contends: (1) the trial court abused its discretion by denying his motion for a mistrial after the victim revealed Browns gang name; (2) the trial court erred by instructing the jury with CALJIC No. 2.50.02; (3) the trial court erred by failing to instruct the jury on lesser included offenses; (4) use of his prior juvenile adjudication as a strike violated Apprendi v. New Jersey; (5) his sentences for assault and inflicting corporal injury upon a cohabitant must be stayed pursuant to Penal Code section 654; (6) the evidence was insufficient to prove his Washington state conviction qualified as a section 667.5, subdivision (b) enhancement; and (7) his sentence amounts to cruel and unusual punishment under the state and federal Constitutions. We modify the judgment to stay Browns sentence on counts 2 and 3 pursuant to section 654. We set aside the jurys true finding on Browns 1992 Washington state conviction in case no. 92-1-02853-2, vacate the one-year enhancement imposed based upon that true finding pursuant to section 667.5, subdivision (b), and remand for a new trial on the prior conviction allegation. In all other respects, we affirm. open the door. Before Deidra was able to telephone police, Brown grabbed her. He stated that he intended to look through her apartment because he believed he had heard a male voice inside. He dragged Deidra into her bedroom and pulled the contents from her closet while holding her by the hair. He then beat her with closed fists on her face, head, chest, and arms. He pulled a mirror from the hallway wall and hit her over the head with it, causing the glass to break onto Deidras head and back. She fell to the ground, and Brown kicked and stomped her until she lost consciousness.
Apprendi v. New Jersey (2000) 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (Apprendi).
All further undesignated statutory references are to the Penal Code.
When Deidra regained consciousness, Brown was still hitting and kicking her. He demanded that she return to the kitchen to finish cooking "his" dinner. In the kitchen, Brown cut Deidras face and neck with a knife. He insisted she wash her face and explained that after he took a shower, he would "fix [her] face for [her]." While Brown was showering, Deidra escaped.
Deidra was treated at a hospital for injuries to her eye, lip, and back. She had a laceration that split her upper eyelid into two parts, and there was hemorrhaging in her eye, which was lacerated. Her cheeks were swollen. She was hospitalized for a week as a result of her injuries, and underwent eye surgery. At the time of trial, she still suffered from periodic eye pain, blurry vision, and a sagging eyelid. A doctor testified that her eye injuries were consistent with being punched and cut by glass or metal, but not with being hit by a door.
While Deidra was at the hospital, Hawthorne police officer Jeff Salmon interviewed her and observed her injuries. He, along with two other officers, went to her apartment and observed the front door open, a footprint in the center of the door, the door jamb broken, a broken mirror in the hallway, bloodstains on the carpet, and uncooked food in the kitchen. Officers discovered Brown near his residence, hiding under a truck. Stains on his boots appeared to be dried blood.
Brown wrote Deidra a letter dated October 22, in which he stated, "Damn, baby, I tripped out." Brown threatened to kill her family unless she visited him in jail and wrote letters attesting that her injuries were the result of her kicking open her own door. In January 2002, a car pulled up next to hers and the occupants stated she should visit Brown in jail or he would send someone to kill her family. One of the men pulled off her exterior rearview mirror; as she drove away, the other car hit hers. As a result of Browns threats, Deidra visited him in jail four or five times. During one of those visits, he asked whether she had been injured in the car accident. Deidra also sent letters to Brown in which she apologized for lying at the preliminary hearing and claimed that her injuries occurred when she kicked in and was hit by her own door. When she initially failed to appear to testify at Browns trial, he called to thank her and told her not to go to work, because the court could find her there. He stated that without her testimony, "they wouldnt have a case" and he would not hurt her family.
b. Defense evidence.
Browns mother testified that she had seen Brown and Deidra together several times between September 7 and October 15. After September 7, Brown had moved back into Deidras apartment.
2. Procedure.
Trial was by jury. Brown was convicted of first degree burglary (& sect; 459), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), and inflicting corporal injury on a cohabitant or former cohabitant (§ 273.5, subd. (a)). In a bifurcated proceeding, the jury found true allegations that Brown had suffered previous convictions for robbery and attempted robbery, and had served two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court denied Browns Romero motion and sentenced Brown to a term of 25 years to life in prison pursuant to the Three Strikes law, plus six years, and imposed restitution and parole revocation fines. Brown appeals.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 917 P.2d 628.
DISCUSSION
1. The trial court properly denied Browns motion for a mistrial.
a. Additional facts.
Before trial, the trial court granted Browns unopposed motion in limine to exclude evidence related to his alleged gang membership. At trial, when Deidra was testifying regarding the incident in which she was threatened by men in the car that pulled up next to hers, the following exchange transpired:
"[Prosecutor]: What happened?
"[Deidra]: I had stopped at a red light and a car with three guys pulled up on the side of it and the guy on the passenger side said that he had a message from Terrence - well, first he asked me did I know Black.
"[Prosecutor]: Now, who is Black?
"[Deidra]: Terrence.
"[Prosecutor]: Is that a certain kind of name?
"[Deidra]: Yes.
"[Prosecutor]: What kind of name is that?
"[Deidra]: Thats his gang name."
Brown objected and moved for a mistrial. The prosecutor explained that in his view, defense counsel had "opened the door" to his elicitation of testimony regarding Deidras fear of Brown due to his gang membership. The court denied Browns motion for a mistrial, but admonished the jury that "the testimony by the witness that Black is the defendants gang name is to be disregarded by you. There is no evidence in this case of anything gang related, it is irrelevant to anything in this case and you are just to disregard any reference to gang."
b. Discussion.
Brown asserts that the trial court abused its discretion by denying his mistrial motion. He urges that evidence of Browns gang membership would have caused the jury to improperly infer that he had a criminal disposition. He points out that evidence of a defendants gang membership may have a highly inflammatory impact on a jury. (People v. Champion (1995) 9 Cal.4th 879, 922, 891 P.2d 93.) According to Brown, the trial courts admonition to the jury to disregard the testimony was ineffective.
A mistrial motion should be granted only when the moving partys chances of receiving a fair trial have been irreparably damaged. (People v. Ayala (2000) 23 Cal.4th 225, 283-284.) " "A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. [Citation.] Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions." [Citation.] [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1154, 885 P.2d 1.) Therefore, we review a trial courts ruling on whether to grant a mistrial for abuse of discretion. (People v. Ayala, supra, 23 Cal.4th at p. 283.)
We discern no abuse of discretion here. The testimony regarding gangs was extremely brief, and amounted to nothing more than Deidras statement that Browns gang name was "Black." There was no testimony regarding whether he was an active gang member, his gang activities, or the name of the gang itself. The moniker itself was not pejorative. Given the limited nature of the challenged evidence, the trial courts admonition was sufficient to cure any prejudice. We presume jurors follow the trial courts instructions. (People v. Waidla (2000) 22 Cal.4th 690, 725, 996 P.2d 46 ["The presumption is that limiting instructions are followed by the jury."]; People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17, 286 Cal. Rptr. 801, 818 P.2d 84 ["The crucial assumption underlying our constitutional system of trial by jury is that jurors generally understand and faithfully follow instructions."]; People v. Williams (2000) 79 Cal.App.4th 1157, 1171.) Whether it would be impossible for a jury to follow limiting instructions is determined by the circumstances of each case, primarily in the trial courts discretion under Evidence Code section 352. (Rufo v. Simpson (2001) 86 Cal.App.4th 573, 599.) Here, the trial court explicitly found it could "unring the bell." We see nothing in the record suggesting this was an abuse of discretion.
In any event, assuming arguendo that the evidence had been erroneously admitted, we discern no prejudicial error. We evaluate the erroneous admission of gang evidence under the standard articulated in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, and reverse only if it is reasonably probable that admission of the evidence affected the verdict. (People v. Champion, supra, 9 Cal.4th at p. 923; cf. People v. Malone (1988) 47 Cal.3d 1, 22, 252 Cal. Rptr. 525, 762 P.2d 1249; People v. Felix (1993) 14 Cal.App.4th 997, 1007-1008.) Here, the evidence was overwhelming that Brown committed the charged offenses. Many of the officers observations corroborated Deidras story, including the kicked-in door, the broken mirror, and the uncooked food in the kitchen. Deidra suffered injuries serious enough to require surgery and hospitalization. These facts were essentially undisputed. While initially being treated for her injuries at the hospital, and before she could reasonably have had a chance to fabricate a story, Deidra told a doctor and a police officer that Brown had beaten her and inflicted the injuries. Brown was found with blood on his boots, hiding under a truck, shortly after the crimes were committed. Given this evidence, there is no likelihood that the brief reference to Browns gang name could have affected the verdict.
Brown argues, however, "Deidras testimony was rife with inconsistencies and was contradicted in myriad respects by physical and other testimonial evidence." He posits that had Deidra really been kicked, hit, and stomped approximately 30 to 40 times, as she testified, her injuries would have been far more extensive. He also points to the facts that: (1) her testimony was inconsistent with an officers regarding the time of the September 7 incident and how many cigarette burns Brown inflicted; (2) Deidra omitted many details of the October 15 incident when Officer Salmon interviewed her at the hospital, including that Brown had pulled clothing from her closet; (3) Deidra did not tell emergency personnel that she had been hit with a mirror; (4) Deidra testified that Browns clothing was bloody, but he had blood stains only on his boots, not his clothing, when he was arrested; (5) Officer Salmon did not see any "carving" on Deidras face, as she had testified, nor did the medical records reflect such injuries; and (6) the fact that Deidra admittedly found Browns clothing at her apartment after she was released from the hospital showed that he had, in fact, moved back in with her after the September 7 incident. Brown also suggests that Deidras continued jail visits and letters to him were inconsistent with her account that he had beaten her. He contends, "given the weaknesses in Deidras testimony," it is reasonably probable the jury would not have convicted him had his gang name not been mentioned.
We are unconvinced. Many of the inconsistencies Brown points to were persuasively explained. For example, Deidra explained that her visits and letters were the result of his threats to kill her family. Officer Salmon testified that Brown was wearing a jacket, but not a shirt, when he was apprehended; this circumstance could have accounted for the lack of blood. Salmon also testified that when he interviewed Deidra at the hospital, she was being treated by nurses and was wincing in pain; he had to talk slowly and repeat questions; and while he elicited the "basic story of what happened," it was difficult to obtain "small details" from Deidra. That Deidra did not recount the entire ordeal in minute detail while receiving initial treatment for her injuries is hardly surprising. Even assuming Deidra exaggerated or was confused about the extent of the beating, the facts remained that she immediately told Salmon and medical personnel that Brown had beaten her, her injuries necessitated surgery and a week in the hospital, much evidence corroborated her story, and Brown was found hiding from the police, with blood on his shoes. Based upon this evidence, we believe Brown overstates the purported weaknesses in Deidras testimony.
2. Instruction with CALJIC No. 2.50.02 was proper.
As described supra, evidence was adduced at trial that Brown had committed uncharged domestic violence against Deidra on September 7, 2001. The trial court instructed with CALJIC No. 2.50.02, which informed the jury that if it found Brown had committed a prior offense involving domestic violence, it might, but was not required to, infer that Brown had a disposition to commit the charged crime. However, such evidence was not, by itself, sufficient to prove commission of the charged crime beyond a reasonable doubt.
CALJIC No. 2.50.02 provided: "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. [P] 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. [Cohabitant means two unrelated adult persons living together for a substantial period of time, resulting in some permanency of relationship. Factors that may determine whether persons are cohabiting include, but are not limited to, (1) sexual relations between the parties while sharing the same living quarters, (2) sharing of income or expenses, (3) joint use or ownership of property, (4) whether the parties hold themselves out as husband and wife, (5) the continuity of the relationship, and (6) the length of the relationship.] [P] 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. [P] 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] offense involving domestic violence. If you find that the defendant had this disposition, you may, but are not required to, infer that he was likely to commit and did commit the crime of which he is accused. [P]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 committed the charged offense. The weight and significance, if any, are for you to decide. You must not consider this evidence for any other purpose." (Italics added.)
Brown asserts that use of this instruction was error. He contends that CALJIC No. 2.50.02 lessened the Peoples burden of proof and allowed the jury to find him guilty based solely upon his propensity to commit domestic violence, if the prior acts of domestic violence were proved beyond a reasonable doubt. He complains that "informing a jury prior domestic violence proved by a preponderance of the evidence is not sufficient to prove the present offense beyond a reasonable doubt implies by way of a negative pregnant that prior domestic violence proved beyond a reasonable doubt is indeed sufficient to prove the present offense beyond a reasonable doubt." Further, according to Brown, the instruction suggested that the prosecution could meet its evidentiary burden by proving the prior domestic violence, in conjunction with other circumstances, only by a preponderance of the evidence. Therefore, he urges, use of the instruction violated his federal constitutional rights to due process and a jury trial.
Browns arguments are foreclosed by the recent case of People v. Reliford (2003) 29 Cal.4th 1007. In Reliford, the California Supreme Court approved CALJIC No. 2.50.01, a substantively identical instruction addressing the jurys consideration of prior sex crimes evidence. (Id. at p. 1009.) Reliford rejected the same arguments raised here. It explained, "We likewise reject defendants contention that the instruction implies by way of a negative pregnant that prior sex offenses proved beyond a reasonable doubt are indeed sufficient to prove the present offense beyond a reasonable doubt. . . . No juror could reasonably interpret the instructions to authorize conviction of a charged offense based solely on proof of an uncharged sexual offense. It is not possible, for example, to find each element of the charged crimes, as the jury was instructed to do before returning a guilty verdict, based solely on the 1991 offense. Nor is it possible to find a union or joint operation of act or conduct and the requisite intent for each charged crime, as the jury was also instructed to do. Hence, no reasonable jury could have been misled in this regard. [Citation.]" (People v. Reliford, supra, at p. 1015.) Reliford also rejected the notion that CALJIC No. 2.50.01 might be interpreted by jurors to authorize a conviction based upon the preponderance of the evidence standard. (Id. at p. 1016.)
Here, as in Reliford, Browns jury was instructed that it should consider the instructions as a whole and each in light of the others (CALJIC No. 1.01); that a guilty verdict required a union or joint operation of act or conduct and the requisite intent for the charged crimes (CALJIC Nos. 3.30, 1.20, 3.31, 9.00, 9.35, 14.50); and that a conviction required proof of each element of each charged offense (CALJIC Nos. 9.00, 9.02, 9.35, 14.50.) For the reasons stated in Reliford, we conclude the use of CALJIC No. 2.50.02 was not error.
3. The trial court did not err by declining to instruct the jury on lesser included offenses.
Brown requested that the trial court instruct the jury on the lesser included offenses of simple battery and battery on a cohabitant. The trial court declined, finding that, based upon the severity of the offenses, if the jury believed any offense was committed it would have to convict Brown of the greater offense. Brown complains that this was error. He also asserts that the trial court erred by failing to instruct sua sponte on simple assault, a lesser included offense to assault by means likely to produce great bodily injury. The People agree that these are lesser included offenses of the charged crimes of infliction of corporal injury upon a cohabitant and assault by means likely to produce great bodily injury, respectively. However, the People urge that instruction on the lesser offenses was not required because the evidence showed Brown was guilty of the greater offenses or of no crime. We agree with the People.
A lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts alleged in the accusatory pleading, include all the elements of the lesser offense, so that the greater cannot be committed without also committing the lesser. (People v. Sanchez (2001) 24 Cal.4th 983, 988; People v. Ortega (1998) 19 Cal.4th 686, 692, 968 P.2d 48.) To determine whether an offense cannot be committed without necessarily committing the included offense, we look to the statutory definitions of both offenses and the language of the accusatory pleading, but do not consider the evidence in support of the conviction. (People v. Ortega, supra, at p. 698; People v. King (2001) 81 Cal.App.4th 472, 475.)
California law requires a trial court to "instruct fully on all lesser necessarily included offenses supported by the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 148-149, 960 P.2d 1094.) "On the other hand, the court is not obliged to instruct on theories that have no such evidentiary support." (Id. at p. 162.) An instruction is not warranted unless there is "substantial evidence," meaning " "evidence from which a jury composed of reasonable [persons] could . . . conclude[] "that the lesser offense, but not the greater, was committed. [Citations.]" (Ibid.) "The existence of any evidence, no matter how weak will not justify instructions on a lesser included offense . . . ." (Ibid.)
Simple battery (§ 242) and misdemeanor battery on a cohabitant (& sect; 243, subd. (e)) are lesser included offenses to inflicting corporal injury upon a cohabitant (§ 273.5, subd. (a)). (People v. Jackson (2000) 77 Cal.App.4th 574, 575, 580; People v. Gutierrez (1985) 171 Cal. App. 3d 944, 952, 217 Cal. Rptr. 616.) Battery is any willful and unlawful use of force or violence upon the person of another. (§ 242.) Violation of section 273.5, subdivision (a), has as an additional element that the corporal injury result in a traumatic condition, i.e., a condition of the body such as a wound or external or internal injury, whether of a minor or serious nature, caused by physical force. (§ 273.5, subds. (a), (c).)
Simple assault (§ 240) is a lesser included offense to the charged offense of assault by means likely to cause great bodily injury (§ 245, subd. (a)(1)). (People v. Yeats (1977) 66 Cal. App. 3d 874, 879, 136 Cal. Rptr. 243; People v. Rupert (1971) 20 Cal. App. 3d 961, 968, 98 Cal. Rptr. 203.) Assault is defined as "an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) The additional element required for a violation of section 245, subdivision (a)(1), is that the assault be committed by means likely to produce great bodily injury.
Here, there was no evidence that would have allowed a reasonable jury to find that Brown committed only the lesser offenses. It was undisputed that Deidra suffered injuries that required surgery. Either Brown attacked Deidra, causing the injuries, or she sustained them accidentally. The jury could not reasonably have found that Brown attacked Deidra but did not cause a traumatic condition, as defined above. Likewise, for the same reasons, no reasonable jury could have found Brown committed only a simple battery, i.e., used means not likely to result in great bodily injury. Brown hit Deidra over the head with a mirror. This, by itself, demonstrated an attack by means likely to cause great bodily injury. Even assuming arguendo that Deidra exaggerated or was confused about how many times Brown hit, kicked, and stomped her, and whether he "carved" her face or not, if the jury credited her testimony that Brown was the attacker, it must have found he used force likely to cause great bodily injury by virtue of the fact that the attack caused serious injuries. Upon this evidence, no reasonable jury could have found commission of the lesser, but not the greater, offenses. (Cf. People v. Lesnick (1987) 189 Cal. App. 3d 637, 642-643, 234 Cal. Rptr. 491 [trial court had no sua sponte duty to instruct on simple assault as a lesser included offense of assault with a deadly weapon, where the uncontroverted evidence showed the defendant used a deadly weapon].)
Moreover, given the absence of evidence from which the jury could have found simple battery and simple assault, we would conclude any error in failing to instruct was harmless. (People v. Breverman, supra, 19 Cal.4th at p. 165 [failure to instruct sua sponte on a lesser included offense in a noncapital case is, at most, an error of California law alone, and reversal is not required unless it appears reasonably probable the defendant would have obtained a more favorable result had the error not occurred].)
4. Issues related to sentencing.
a. Use of Browns prior juvenile adjudication as a "strike" does not violate Apprendi v. New Jersey.
As noted, in a bifurcated proceeding the jury found true two prior strike allegations: a 1990 juvenile adjudication for robbery in case no. J422298, and a 1995 conviction for attempted robbery in case no VA028973. Accordingly, the trial court sentenced Brown to a term of 25-years-to-life on the burglary charge, and concurrent 25-years-to-life terms on counts 2 and 3.
Relying on United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, Brown urges that the use of his prior juvenile adjudication as a "strike" violated his federal constitutional rights under Apprendi v. New Jersey, supra, 530 U.S. 466. This contention has recently been rejected in People v. Bowden (2002) 102 Cal.App.4th 387.) We reject it as well.
In Apprendi the United States Supreme Court stated, "[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, italics added.) Thus, under Apprendi, the federal constitution does not require a jury finding on the fact of a prior conviction as a prerequisite to its use as a strike for sentencing purposes. (People v. Epps (2001) 25 Cal.4th 19, 23, 28 [Apprendi "reaffirms that defendants have no right to a jury trial of the fact of a prior conviction "]; Thompson v. Superior Court (2001) 91 Cal.App.4th 144, 154.)
In United States v. Tighe, supra, 266 F.3d 1187, a divided panel of the Ninth Circuit held that prior juvenile adjudications do not fall within Apprendis "prior conviction" exception. (Id. at pp. 1194-1195.) In Tighe, a defendant was sentenced pursuant to the Armed Career Criminal Act (ACCA), 18 United States Code section 924(e), which mandates additional prison time for felons who possess firearms and have three prior convictions for specified offenses. (Id. at pp. 1189, 1191.) The Tighe majority differentiated between prior convictions suffered as an adult, and prior juvenile adjudications. Tighe acknowledged that, "at first blush, it may appear that [the defendants] 1988 juvenile adjudication, which Congress has characterized as a prior conviction for the purposes of ACCA, falls precisely within Apprendis exception for the fact of a prior conviction . . . ." (Id. at p. 1192.) However, a review of Apprendi and the cases leading up to it convinced the Tighe majority otherwise. In Almendarez-Torres v. United States (1998) 523 U.S. 224, 243-247, 140 L. Ed. 2d 350, 118 S. Ct. 1219, the Supreme Court had held that prior convictions could be treated as sentencing factors. The next year, Jones v. United States (1999) 526 U.S. 227, 251-252, 143 L. Ed. 2d 311, 119 S. Ct. 1215, held that other sentence-enhancing facts, such as serious bodily injury, amounted to elements of distinct offenses that had to be charged and proved beyond a reasonable doubt to a jury. Jones differentiated prior convictions from other sentence-enhancing facts, reasoning, "one basis for that possible constitutional distinctiveness is not hard to see: unlike virtually any other consideration used to enlarge the possible penalty for an offense . . . a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees." (Id. at p. 249.) Tighe opined, "Thus, Jones recognition of prior convictions as a constitutionally permissible sentencing factor was rooted in the concept that prior convictions have been, by their very nature, subject to the fundamental triumvirate of procedural protections intended to guarantee the reliability of criminal convictions: fair notice, reasonable doubt and the right to a jury trial." (United States v. Tighe, supra, at p. 1193.)
Tighe pointed to similar reasoning in Apprendi: "One year later, in Apprendi, the Court further elaborated on the importance of such procedural protections being inherent in prior convictions used as sentencing factors to increase statutory penalties. The Court explained that the certainty that procedural safeguards attached to the "fact" of prior conviction was crucial to Almendarez-Torres constitutional holding regarding prior convictions as sentencing factors. [Citation.] The Court identified the right to a jury trial as one of the requisite procedural safeguards to which it referred: There is a vast difference between accepting the validity of a prior judgment of conviction entered in a proceeding in which the defendant had the right to a jury trial and the right to require the prosecutor to prove guilt beyond a reasonable doubt, and allowing the judge to find the required fact under a lesser standard of proof. [Citation.]" (United States v. Tighe, supra, 266 F.3d at pp. 1193-1194.)
Tighe concluded: "The Courts continued acceptance of Almendarez-Torres holding regarding prior convictions, then, was premised on sentence-enhancing prior convictions being the product of proceedings that afford crucial procedural protections - particularly the right to a jury trial and proof beyond a reasonable doubt. [P] Thus, as we read Jones and Apprendi, the prior conviction exception to Apprendis general rule must be limited to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. Juvenile adjudications that do not afford the right to a jury trial and beyond-a-reasonable-doubt burden of proof, therefore, do not fall within Apprendis prior conviction exception." (United States v. Tighe, supra, 266 F.3d at p. 1194.) The court also pointed out that Apprendi had characterized the prior conviction exception as "narrow." (Ibid. [citing Apprendi, supra, 530 U.S. at pp. 489-490].)
Judge Brunetti authored a strong dissent in Tighe. He reasoned: "In my view, the language in Jones stands for the basic proposition that Congress has the constitutional power to treat prior convictions as sentencing factors subject to a lesser standard of proof because the defendant presumably received all the process that was due when he was convicted of the predicate crime. For adults, this would indeed include the right to a jury trial. For juveniles, it does not. Extending Jones logic to juvenile adjudications, when a juvenile receives all the process constitutionally due at the juvenile stage, there is no constitutional problem (on which Apprendi focused) in using that adjudication to support a later sentencing enhancement." (United States v. Tighe, supra, 266 F.3d at p. 1200 [Brunetti, J., dissenting].)
Brown urges that the majority opinion in Tighe compels the conclusion that his prior juvenile adjudication could not be used as a strike for sentencing purposes, because he was not afforded the right to a jury trial at the adjudication. (People v. Fowler (1999) 72 Cal.App.4th 581, 585 [juveniles enjoy no state or federal due process or equal protection right to a jury trial in delinquency proceedings].)
Division Four of this district recently rejected the arguments raised by Brown. People v. Bowden, supra, 102 Cal.App.4th 387, concluded that the Tighe majority opinion was unpersuasive, and agreed instead with the Tighe dissents analysis. (People v. Bowden, supra, at p. 393.) Bowden concluded that Apprendi and Tighe were not directly applicable to the question before us, because a criminal defendant in California has a statutory right to a jury trial on the issue of whether he suffered the prior conviction. (Id. at pp. 392-393.) Bowden pointed out that, prior to Apprendi, People v. Fowler, supra, 72 Cal.App.4th at page 586, had held that because a juvenile constitutionally and reliably can be adjudicated a delinquent without a jury trial, no constitutional impediment bars use of a juvenile adjudication to increase a defendants sentence following a later adult conviction. (Id. at p. 394.) Fowlers holding, Bowden reasoned, was unaffected by Apprendi or Tighe. Bowden thus declined to extend Tighes reasoning to the Three Strikes law. (Ibid.)
We are, of course, not bound by the decisions of the lower federal courts, even on federal questions. (People v. Cleveland (2001) 25 Cal.4th 466, 480.) We also observe that Tighe has not met with universal acceptance. (United States v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1032-1033 [disagreeing with Tighe and concluding that, despite the absence of jury trial, the substantial procedural protections afforded to juveniles are "more than sufficient to ensure the reliability that Apprendi requires"]; United States v. Jones (3d Cir. 2003) 332 F.3d 688, 694-696; State v. Hitt (Kan. 2002) 273 Kan. 224, 42 P.3d 732, 740 [concluding that because juvenile adjudications "are included within the historical cloak of recidivism and enjoy ample procedural safeguards," the Apprendi "exception for prior convictions encompasses juvenile adjudications"].)
Moreover, even assuming arguendo that the Tighe majority was correct and the federal Constitution requires that the fact of a prior juvenile adjudication be proved to a jury beyond a reasonable doubt as a prerequisite to its use as a strike for sentencing purposes, Brown was provided with such a trial. As the Tighe dissent pointed out, assuming arguendo that a juvenile adjudication falls outside Apprendis exception for prior convictions, then "prosecutors will be required to prove the fact of the prior convictions to the jury . . . ." (United States v. Tighe, supra, 266 F.3d at p. 1200, Brunetti, J., dissenting.) The prosecutor did just that in this case. There is therefore no impediment to the use of Browns prior juvenile adjudication as a strike.
b. Sentence on counts 2 and 3 must be stayed pursuant to section 654.
The trial court sentenced Brown to a term of 25 years to life in prison on count 1, the burglary charge, and two concurrent 25-years-to-life sentences on counts 2 and 3 (the assault by means likely to produce great bodily injury and corporal injury to a cohabitant charges, respectively). Brown asserts that the trial court erred by imposing concurrent terms on counts 2 and 3, instead of staying sentence pursuant to section 654. As the People concede, this contention has merit.
Count 1 of the information charged Brown with first degree residential burglary (§ 459) based on the October 15, 2001 incident. Count 2 of the information charged Brown with assault by means likely to produce great bodily injury in the same incident. Count 3 charged Brown with corporal injury to a spouse or cohabitant, again based on the same incident.
Section 654 provides, "an act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." Section 654 bars multiple punishment where the convictions arise out of an indivisible transaction and are undertaken pursuant to a single intent and objective. (People v. Jones (2002) 103 Cal.App.4th 1139, 1143; People v. Monarrez (1998) 67 Cal. App. 4th 46A, 66 Cal.App.4th 710, 713.) "If all the offenses are incidental to one objective, the defendant may be punished for any one of them, but not for more than one." (People v. Liu (1996) 46 Cal.App.4th 1119, 1135.)
A person who enters an inhabited dwelling house "with intent to commit grand or petit larceny or any felony is guilty of burglary." (§§ 459.) Section 273.5, subdivision (a), provides that any person who willfully inflicts a corporal injury resulting in a traumatic condition upon a cohabitant or former cohabitant, is guilty of a felony. Here, the evidence showed Brown entered Deidras apartment with the intent to commit the felonies of inflicting corporal injury and assault upon her. There was no evidence supporting a different intent or objective. The jury was instructed that to find Brown guilty on the burglary charge, it had to find he entered the apartment with the intent to inflict corporal injury upon or assault Deidra by means likely to produce great bodily injury. Thus, to convict Brown of burglary as charged in count 1, the jury necessarily found he entered Deidras apartment with the intent and objective to injure or assault her. The evidence showed only a single intent: to attack Deidra. Accordingly, all three offenses were committed as part of an indivisible transaction and with a single intent and objective.
When multiple punishment is precluded by section 654, both concurrent and consecutive sentences are prohibited. (People v. Deloza (1998) 18 Cal.4th 585, 592, 957 P.2d 945.) The proper procedure is to impose sentence on the offenses, and stay execution of sentence on the offenses carrying the lesser penalty, with the stay to become permanent when service of the greater sentence is complete. (People v. Austin (1994) 23 Cal.App.4th 1596, 1614, overruled on other grounds in People v. Palmer (2001) 24 Cal.4th 856, 861; People v. Dominguez (1995) 38 Cal.App.4th 410, 420; People v. Monarrez, supra, 66 Cal.App.4th at p. 713.) Therefore, we order sentence stayed on counts 2 and 3 pursuant to section 654.
c. Prior Washington conviction.
The information alleged that Brown had suffered a 1992 conviction in Washington state in case no. 92-1-02853-2 for soliciting the delivery of a controlled substance, cocaine, and failed to remain free of custody for more than five years following his release from prison in that case, within the meaning of section 667.5, subdivision (b). The jury found the allegation true and the trial court sentenced Brown to an additional one year for the Washington prior pursuant to section 667.5, subdivision (b). Brown urges that the evidence was insufficient to prove that the Washington conviction for soliciting qualified as a prior felony conviction within the meaning of section 667.5, subdivision (b).
The People concede the evidence was insufficient. We agree. Section 667.5, subdivision (b), mandates that "the court shall impose a one-year term for each prior separate prison term served for any felony . . . ." (Italics added; People v. Riel (2000) 22 Cal.4th 1153, 1203, 998 P.2d 969.) The section 667.5, subdivision (b) enhancement "applies to out-of-state prison terms only if the underlying conviction, if committed in California, is punishable by imprisonment in state prison, i.e., if it would be a felony under California law. (§ 667.5, subd. (f).)" (People v. Riel, supra, at p. 1203.) A prior conviction of a particular felony includes a conviction in another jurisdiction " for an offense which includes all of the elements of the particular felony as defined under California law . . . . [Citations.]" (Ibid.)
To determine whether a foreign conviction qualifies as an enhancement, "the trier of fact may consider the entire record of the proceedings leading to imposition of judgment on the prior conviction to determine whether the offense of which the defendant was previously convicted involved conduct which satisfies all of the elements of the comparable California" offense. (People v. Myers (1993) 5 Cal.4th 1193, 1195, 858 P.2d 301.) When the record does not disclose the facts of the offense actually committed, " a presumption arises that the prior conviction was for the least offense punishable [citation]. However, the record need only contain additional evidence from which the court can reasonably presume that an element of the crime was adjudicated in the prior conviction. [Citation.] [Citation.]" (People v. Zangari (2001) 89 Cal.App.4th 1436, 1440; People v. Franz (2001) 88 Cal.App.4th 1426, 1451.)
Here, the evidence shows Brown pleaded guilty to soliciting the unlawful delivery of a controlled substance, cocaine (Wash. Rev. Code, §§ 69.50.401, 9A.28.030). The documentary evidence produced by the People at trial does not disclose any of the facts underlying the Washington conviction; therefore, we must presume Brown committed the least offense punishable. Washington Revised Code section 9A.28.030 provides, in pertinent part: "(1) A person is guilty of criminal solicitation when, with intent to promote or facilitate the commission of crime, he offers to give or gives money or other thing of value to another to engage in specific conduct which would constitute such crime or which would establish complicity of such other person in its commission or attempted commission had such crime been attempted or committed." Washington Revised Code section 69.50.401 defines the underlying crime of delivery of a controlled substance. Under Washington law, a person can be convicted of soliciting merely by "asking or enticing someone to commit a crime." (In re Bowman (2001) 109 Wn. App. 869 [38 P.3d 1017, 1020, fn. 20]; State v. Clapp (1992) 67 Wn. App. 263 [834 P.2d 1101, 1105]; State v. Gay (1971) 4 Wn. App. 834 [486 P.2d 341, 345].)
As the People concede, under California law, soliciting another to deliver cocaine is not a felony absent additional evidence. In California, the mere offer to give something of value in exchange for cocaine amounts to misdemeanor solicitation. (People v. York (1998) 60 Cal.App.4th 1499, 1502-1503; People v. Sanchez (1998) 60 Cal.App.4th 1490, 1493-1494.) The comparable California statute, section 653f, subdivision (d), makes solicitation of a violation of Health and Safety Code section 11352 punishable by imprisonment in county jail. (§ 653f, subd, (d)). The offense can be a felony only if the perpetrator has been convicted previously of the same offense. (§ 653f, subd. (d); § 17.) Therefore the evidence was insufficient to prove the prior conviction was a felony under California law.
Brown requests that we strike the one year enhancement. The People, however, correctly point out that the proper remedy is to remand to the trial court for further proceedings on the question of whether Browns prior conviction constituted a felony under California law. "Our Supreme Court has held that, where a prior conviction finding is reversed on appeal for a lack of substantial evidence, the proper procedure is to remand the case to the trial court for a retrial of the prior conviction allegation. [Citation.]" (People v. Franz, supra, 88 Cal.App.4th at p. 1455; People v. Scott (2000) 85 Cal.App.4th 905, 915.) Retrial of a prior conviction allegation does not violate either the state or federal prohibition on double jeopardy. (People v. Franz, supra, 88 Cal.App.4th at p. 1455; People v. Monge (1997) 16 Cal.4th 826, 844-845, 941 P.2d 1121; Monge v. California (1998) 524 U.S. 721, 734, 141 L. Ed. 2d 615, 118 S. Ct. 2246.) Likewise, retrial is not barred by res judicata or the law of the case doctrine. (People v. Franz, supra, 88 Cal.App.4th at pp. 1455-1456; Cherry v. Superior Court (2001) 86 Cal.App.4th 1296, 1303; People v. Scott, supra, 85 Cal.App.4th at pp. 916-926.)
We therefore set aside the jurys true finding that Brown suffered a prior conviction within the meaning of section 667.5, subdivision (b), in Washington state case no. 92-1-02853-2. We order the corresponding one-year enhancement imposed by the trial court vacated, and remand the matter for a retrial of the prior conviction allegation.
d. Browns sentence does not amount to cruel or unusual punishment.
Brown next asserts that a sentence of 25 years to life in prison, plus 6 years, amounts to cruel or unusual punishment in violation of the California and federal Constitutions. As we have ordered the one-year enhancement stricken as discussed supra, we address whether Browns term of 25-years-to-life, plus 5 years, amounts to cruel and unusual punishment. We conclude it does not.
Whether a punishment is cruel or unusual is a question of law, but we review the underlying facts in the light most favorable to the judgment. (People v. Mantanez (2002) 98 Cal.App.4th 354, 358.) A punishment violates the California Constitution if, "although not cruel or unusual in its method, it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, 105 Cal. Rptr. 217, 503 P.2d 921, fn. omitted.) In making this determination, we: (1) examine the nature of the offense and the offender; (2) compare the punishment with that meted out for more serious crimes in California; and (3) compare the punishment with that given for the same offense in other jurisdictions. (People v. Cooper (1996) 43 Cal.App.4th 815, 825; In re Lynch, supra, at pp. 425-427.)
A punishment violates the Eighth Amendment to the United States Constitution if it is an "extreme sentence[]" that is " grossly disproportionate to the crime." (Ewing v. California (2003) 155 L. Ed. 2d 108, U.S. , 123 S. Ct. 1179, 1186-1187 (plur. opn. of OConnor, J.); Lockyer v. Andrade (2003) 155 L. Ed. 2d 144, U.S. , 123 S. Ct. 1166, 1173; Harmelin v. Michigan (1991) 501 U.S. 957, 1001, 115 L. Ed. 2d 836, 111 S. Ct. 2680 (opn. of Kennedy, J.).) In a noncapital case, " successful challenges to the proportionality of particular sentences have been exceedingly rare. [Citation.] " (Ewing v. California, supra, 123 S. Ct. at p. 1185; Lockyer v. Andrade, supra, 123 S. Ct. at p. 1173.) When faced with recidivist defendants, both the United States Supreme Court and the California courts have found the Three Strikes law is not cruel or unusual punishment. (Ewing v. California, supra, at p. 1190; People v. Mantanez, supra, at p. 359.)
Regarding the first prong of the California test, nature of the offense and the offender, we evaluate the totality of the circumstances surrounding the commission of the current offense, including the defendants motive, manner of commission of the crime, the extent of the defendants involvement, the consequences of his or her acts, and his or her individual culpability, including factors such as age, prior criminality, personal characteristics, and state of mind. (People v. Martinez (1999) 71 Cal.App.4th 1502, 1510.)
Browns current crime was extremely vicious and brutal. He attacked his former girlfriend, despite a restraining order. After kicking down her door, he subjected her to a vicious beating that included stomping, kicking, punching, and cutting her, as well as breaking a mirror over her head. Deidras ophthalmologist testified that she suffered a split eyelid and a hemorrhaging and lacerated eyeball. After his arrest for the crimes, Brown threatened Deidras family and apparently arranged for others to threaten her and vandalize her car.
Brown attempts to minimize his conduct by arguing that "the extent of Deidras injuries appears to have been exaggerated during her trial testimony, and [was] largely refuted by testimonial and documentary evidence." We are unpersuaded. As noted, we review the underlying facts in the light most favorable to the judgment. (People v. Mantanez, supra, 98 Cal.App.4th at p. 358.) Even assuming arguendo that Deidra was unable to keep an accurate count of exactly how many times she was stomped, kicked, and punched by Brown during the attack, the fact remains that she was viciously beaten and was required to undergo surgery and spend a week in the hospital as a result of Browns conduct. Nothing about the current offense suggests Browns sentence is disproportionate.
Browns criminal history is lengthy. As a juvenile, he had sustained juvenile adjudications for theft, possession of a weapon to commit an assault, carrying a loaded firearm in a public place, conspiracy to commit a crime, possession for sale or purchase of cocaine base, carrying a concealed weapon, possessing a concealed weapon without consent, burglary, and robbery. As an adult, Brown suffered convictions for unlawful possession of a controlled substance within 1000 feet of a school; the manufacture or delivery of narcotics; solicitation; carrying a concealed weapon; carrying a loaded firearm in a public place; providing false information to a police officer; and attempted armed robbery with a firearm. He was returned to prison for parole violations at least twice. As the probation report explained, "The defendant has an established pattern of violence in the community and nothing in the past that the courts and/or the supervising authorities have done have deterred this defendant. He is a continued threat and menace and needs to be removed for the longest possible time." (See People v. Young (1992) 11 Cal.App.4th 1299, 1310 [using probation report when analyzing the nature of the offender].) As the trial court found, Brown "has been consistently convicted of criminal acts since 1988 . . . [P] He has also been convicted of possessing illegal weapons six times and found in violation of parole twice, so it is not as though his two strikes were isolated regarding his criminal behavior."
As to the second prong of the Lynch analysis, Brown complains that his punishment is "the same as if he had killed Deidra." Brown, however, is being punished not only for his current offense, but also for his recidivism. It has been recognized on both the state and federal levels that a state may punish recidivists more harshly than non-recidivists without violating the prohibition on cruel and unusual punishment. (E.g.,Ewing v. California, supra, 123 S. Ct. at pp. 1187-1188 [" The constitutionality of the practice of inflicting severer criminal penalties upon habitual offenders is no longer open to serious challenge "]; People v. Cartwright (1995) 39 Cal.App.4th 1123, 1136-1137; People v.Gray (1998) 66 Cal.App.4th 973, 993.) Moreover, " this step is inapposite to three strikes sentencing because it is a defendants "recidivism in combination with current crimes that places him under the three strikes law. Because the Legislature may constitutionally enact statutes imposing more severe punishment for habitual criminals, it is illogical to compare [defendants] punishment for his offense, which includes his recidivist behavior, to the punishment of others who have committed more serious crimes, but have not qualified as repeat felons." [Citation.] [Citation.]" (People v. Romero (2002) 99 Cal.App.4th 1418, 1433.)
Brown does not argue that his sentence is disproportionate when compared with the sentences imposed for similar offenses in different jurisdictions. We therefore do not address this prong of the Lynch test.
Browns claim that his sentence violates the federal Constitution fares no better. As noted, the United States Supreme Court recently upheld application of Californias Three Strikes law in Ewing v. California, supra, 123 S. Ct. 1179. In Ewing, the defendant was sentenced to a term of 25 years to life pursuant to the Three Strikes law, for shoplifting golf clubs worth approximately $ 1,200. He had suffered several prior theft-related convictions, as well as convictions for robbery, battery, burglary, possession of drug paraphernalia, unlawful possession of a firearm, and trespassing. In rejecting Ewings cruel and unusual punishment claim, the Court explained that the Eighth Amendment contains a " narrow proportionality principle " applicable to noncapital sentences. (Id. at p. 1185.) However, the Eighth Amendment does not require strict proportionality between crime and sentence, but only forbids extreme sentences that are grossly disproportionate to the crime. (Id. at pp. 1185-1187.) The Court reasoned that it had a longstanding tradition of deferring to state legislatures policy judgments, and that deterring and segregating habitual criminals is a valid interest supporting increased sentences. (Id. at pp. 1187-1188.) The court found Ewings sentence was justified by the states public safety interest and was "amply supported by his own long, serious criminal record." (Id. at p. 1190.)
Here, as we have already discussed, Browns sentence is not grossly disproportionate to his crimes. Browns current offense was more serious than that at issue in Ewing, and his prior criminal history was similar. As in Ewing, this is not the sort of " rare case " in which a comparison of the defendants current and prior crimes with the sentence imposed leads to an inference of gross disproportionality. (Id. at p. 1190.) Accordingly, Browns claim fails.
DISPOSITION
The 25-years-to-life sentences on counts 2 and 3 are stayed pursuant to section 654. The true finding that Brown suffered a prior conviction within the meaning of section 667.5, subdivision (b), in Washington state case no. 92-1-02853-2 is set aside and the corresponding one-year enhancement imposed pursuant to section 667.5, subdivision (b), is vacated. The matter is remanded for a retrial as to the prior conviction allegation. In all other respects, the judgment and sentence are affirmed.
We concur: KLEIN, P.J., CROSKEY, J.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. Peoples evidence.
Brown and Deidra L. cohabited between approximately May or June 2001 and September 2001. On September 7, 2001, during an argument, Brown grabbed Deidra by the neck, burned her with a cigarette, and broke her cellular telephone. She obtained a restraining order prohibiting Brown from visiting her apartment.
On the evening of October 15, 2001, Brown appeared at Deidras apartment and rang the doorbell. Through the locked door, Deidra informed Brown that she did not wish to see him. She reminded him of the restraining order and returned to the kitchen, where she was cooking. Brown kicked