From Casetext: Smarter Legal Research

People v. Burns

California Court of Appeals, Fourth District, Third Division
Jul 31, 2008
No. G038789 (Cal. Ct. App. Jul. 31, 2008)

Opinion

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Orange County No. 06HF0521, Frank F. Fasel, Judge.

H. Reed Webb, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, James D. Dutton and A. Natasha Cortina, Deputy Attorneys General, for Plaintiff and Respondent.


OPINION

IKOLA, J.

After defendant Michael Robert Burns fought with bounty hunters trying to apprehend him, a jury convicted him of two counts of assault with a deadly weapon. (Pen. Code, § 245, subd. (a)(1)) and found true the allegation he was out on bail at the time of the assaults (§ 12022.1, subd. (b)). The court sentenced defendant to the aggravated term of four years on count 1, a consecutive one-year term (one-third the midterm) on count 2, and a consecutive two-year term for the crime-on-bail enhancement (stayed pending conviction in the underlying case) for a total prison term of seven years.

All statutory references are to the Penal Code unless otherwise stated.

Defendant contends the court abused its discretion by admitting evidence of the dollar amount of his bail on two outstanding bench warrants and by limiting his counsel’s remarks during closing argument about the bounty hunters’ potential civil liability for injuring him. He also asserts the court violated his Sixth Amendment right to a jury trial by sentencing him to the upper term on count 1 based on a prior conviction and other factors. We disagree and affirm the judgment.

FACTS

In his career, self-employed bounty hunter Kent Morgan had arrested “well over 2,000” persons who had “jump[ed] bail.” On only 15 to 20 occasions had the arrestee resisted or physically struggled with Morgan. Lester Odell, a licensed bail bondsman, had engaged in bounty hunting for two years and arrested between 50 and 70 people, resulting only once in a physical confrontation.

Bratton Bail Bonds contracted with Morgan and Odell to apprehend defendant pursuant to two bench warrants issued in Santa Barbara County, each warrant setting bail in the amount of $1 million (for a total of $2 million bail). On the night of March 17, 2006, Morgan and Odell went to the Newport Beach Marriott Suites, notified the Newport Beach Police Department and a Marriott employee of their plan to arrest defendant, and accompanied the police to defendant’s room. The group searched defendant’s room; defendant was not there. The police officers left the hotel. Morgan and Odell waited several hours in the hotel lobby for defendant to appear.

After midnight, defendant and a woman (later identified as Erica Benson) entered the lobby. Defendant “looked around, . . . went back out to where the . . . cars pull up and . . . seemed kind of nervous.” Morgan and Odell “went up and waited on the 7th floor for him.” Morgan “went to one end of the hallway and Odell went to the other and [they] hid around the corner.” Five to ten minutes later, defendant stepped off the elevator and walked with Benson to a room where “he started to put the key in the door.” Defendant “was carrying a backpack in his arm” and Benson had luggage.

Morgan and Odell, wearing badges and street clothes, approached and said, “Bail agents, don’t move.” Odell “grabbed [defendant] by the shoulder and spun him around to take him down, and [defendant] came up with a knife,” a “Swiss Army type knife” with about a three or four inch blade. Morgan “screamed to Odell that [defendant had] a knife.” They “all ended up in a big pile on the floor in front of the door fighting over this knife.” Defendant waved the knife around, trying to stab the bondsmen. At some point, Morgan’s finger and Odell’s thumb were “cut by the knife.” Defendant said he was “going to kill [them] and he ain’t going back to jail.” Somehow “[Morgan] was able to get the knife away from [defendant]” and “threw it down to the end of the hallway.” The bondsmen punched and “kneed” defendant and “called 911 in the middle of that struggle.”

The 911 dispatcher asked Odell whether the subject had any weapons, and Odell, obviously still involved in the struggle, replied, “I don’t think he has any — he might.” (At that time, defendant’s knife had already been thrown down the hall.) The bondsmen told defendant’s female companion, Benson, who stood “right there” saying she wanted “to get her luggage,” “to leave the scene” since she was standing at their backs. Benson told defendant “to stop resisting and ‘do what they tell you to do.’” A few minutes later she returned “with some hotel personnel.” “[E]ventually, [Morgan and Odell] were able to get [defendant] in handcuffs, but not behind his back.”

The police arrived and “saw the two bail enforcement agents . . . holding down [defendant] directly on the floor,” with defendant “handcuffed to the front” and “visibly upset and yelling and attempting to move around, also trying to stand up.” An officer found a red pocket knife with an opened blade in the hallway. The officers took control of defendant and brought him downstairs. The police interviewed Morgan and Odell and observed injuries on their hands. Odell told the officer that as he and Morgan approached defendant and identified themselves as bail enforcement agents, “once they got close to” defendant, defendant “quickly turned around[,] produced a knife in his hand,” and began “slashing around with the knife [before the agents] put their hands on him.”

Benson, a critical care nurse in Phoenix, Arizona, testified for the defense that she and defendant had been out with her friends before arriving at the Marriott. Benson had four drinks and defendant drank six or seven. Benson testified she felt no effects of the drinks, but then admitted she vomited in the bushes outside the Marriott. She and defendant were “just friends,” “barely friends,” and had no romantic relationship. He was getting her a room at the Marriott with his “frequent points.” On the way to the Marriott, defendant told her “he was on bail from Santa Barbara.” Benson thought the amount of the bail was higher than it actually was; she knew it was for a “substantial” amount.

When the scuffle started between defendant and the bondsmen, Benson heard the noise behind her. She did not see the initial struggle where the bondsmen “took [defendant] down.” She turned around. She saw “two guys . . . beating up [defendant].” Only after the bondsmen had defendant “on the ground” did they announce defendant’s name, “U.S. Marshal bounty hunters,” and “Don’t move.” At one point she heard the bondsmen say, “He has a knife.” The bondsmen pulled a red pocket knife out of defendant’s pocket and threw it toward Benson. Benson was positive the knife was closed. The bondsmen kneed defendant in the sides and hit him in the head. They told Benson, “Bitch, you better leave or you will be next.”

Benson went down the elevator and asked the manager and another employee at the front desk for help, saying, “They are going to kill him. Benson “came back up” to the seventh floor about two minutes later. The bondsmen were punching defendant in the eye area. One bondsman held up his hand (showing a small amount of blood) and said, “Look, he cut me.” “You are my witness. You saw it.” Benson replied, “No, I didn’t see that. What I saw was you throw something my way.”

The officer who interviewed the bondsmen after the incident did not recall them reporting defendant’s statements that he did not want to go back to jail and threatening to kill them. When shown defendant’s exhibit of photographs of his injuries, the officer testified defendant’s eye was more swollen but less darkened than shown in the photograph.

DISCUSSION

The Trial Court Did Not Abuse Its Discretion by Admitting Evidence of the Dollar Amount of Defendant’s Bail

Defendant contends the court abused its discretion by admitting into evidence the $1 million bail amount on each of his Santa Barbara County bench warrants. He contends the bail amount was irrelevant to prove he had an incentive “to resist the efforts of the bounty hunters to take him in” because he “never contested that he resisted Morgan and O’Dell’s efforts to handcuff him behind his back or to take him into custody” and because “[h]aving a high bail on an outstanding warrant is not probative of whether” he assaulted the bondsmen with a knife.

In an Evidence Code section 402 pretrial motion, the People sought to introduce evidence of defendant’s pending charges in Santa Barbara County for “assault with a deadly weapon against a police officer involving a vehicle,” reckless driving while fleeing from police, and false representation of identity to and resisting a police officer. The charges involved “defendant trying to run a C.H.P. officer off the road and going on a 150-mile pursuit in Santa Barbara County.” The prosecutor anticipated possibly presenting the evidence to show defendant’s intent under Evidence Code section 1101, subdivision (b), or for rebuttal purposes. The court asked whether the evidence would relate only to the crime-bail-crime allegation, or to the charges of aggravated assault with a weapon. The prosecutor replied the evidence was relevant to the assault charges: “[I]t would go to self-defense and his use of the knife to get away from the bail enforcement agen[ts], to show that this wasn’t some mistake or he didn’t know who they were. It shows that he is willing to use a deadly weapon to try to escape from them and, on a prior incident in Santa Barbara with the car, that he was also willing to go on a chase under . . . somewhat similar circumstances being chased by law enforcement.”

As to proving the crime-bail-crime enhancement, the People had certified copies of the warrants and the Santa Barbara court files. Defense counsel requested a bifurcated trial on the enhancement, which the court denied. Defense counsel asked that if documentary proof was to be offered for the enhancement, the bail amount and the underlying charges not be revealed, as they were “irrelevant and unduly prejudicial.”

The prosecutor objected to defense counsel’s request, arguing the $2 million amount of the bail on the warrants was “relevant to this defendant’s actions in trying to escape from the bail enforcement officers by using a knife” and to Benson’s credibility since she was aware defendant had over $1 million in warrants, yet “continued to accompany him to a hotel room.” Under Evidence Code section 352, the court sustained without prejudice defendant’s objection to the introduction of the underlying charges for purposes of proving the aggravated assault charges, but stated it would reconsider the issue for purposes of the People’s rebutting any defense presented by defendant. As to the certified documents relating to the crime-bail-crime enhancement, the court overruled defendant’s objection to the admission of the bail amount and the underlying charges in those documents. The court stated, however, it would take under submission the defense motion to “sanitize” one warrant by crossing out the Santa Barbara charge for aggravated assault with a deadly weapon on a police officer (§ 245, subd. (c)) (which was so similar to the current charges as to be potentially prejudicial), depending on whether the People introduced evidence of the charge under Evidence Code section 1101, subdivision (b), in rebuttal.

At trial, the People elicited the bondsmen’s testimony, over defendant’s relevance objection, of the bail amounts. In addition, Benson testified she knew defendant’s bail amount was high.

“‘“Relevant evidence is defined in Evidence Code section 210 as evidence ‘having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action.’ The test of relevance is whether the evidence tends ‘“logically, naturally, and by reasonable inference” to establish material facts such as identity, intent, or motive. [Citations.]’ [Citation.] The trial court has broad discretion in determining the relevance of evidence . . . .”’” (People v. Carter (2005) 36 Cal.4th 1114, 1166.) “A trial court’s exercise of discretion in admitting or excluding evidence . . . will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)

The court did not act arbitrarily, capriciously or absurdly in admitting evidence of defendant’s bail amounts. Contrary to defendant’s assertion that he did not contest his resistance to the bondsmen’s efforts to handcuff him and take him into custody, he presented evidence and argued that the bounty hunters tackled him without first identifying who they were. While one may draw an inference from this testimony that defendant did resist, and was justified in doing so, the inference is not the same as a binding stipulation to the existence of that fact, which, had he done so, may have sufficed to make the bail amount irrelevant. Equally unpersuasive is his assertion the high bail amounts were “not probative of whether” he assaulted the bondsmen with a knife. A trier of fact could reasonably infer defendant used a knife to resist apprehension because he realized that, once arrested, he could only be released by posting $2 million bail. Furthermore, evidence that Benson knew of defendant’s high bail amounts was relevant to her credibility as a purported objective witness who was just barely friends with and had no romantic interest in defendant. In sum, the court did not abuse its discretion by admitting evidence of defendant’s bail amounts.

The Court Did Not Abuse Its Discretion by Limiting Defendant’s Closing Argument

Defendant contends the court, by cutting off his counsel’s closing argument concerning the bondsmen’s potential civil liability for seriously injuring him while taking him into custody, “chop blocked [his] defense at the knees.” Defendant’s theory was that the bondsmen opened his knife and cut themselves in order to avoid potential civil liability for excessive force.

During defense counsel’s closing argument, he noted the bondsmen did not try to apprehend defendant in the hotel lobby, suggesting the bondsmen did not “want witnesses to see what [they were] going to do.” Counsel argued the bondsmen were “not operating under the same procedures” that constrain police. He discussed defendant being “hit in the face,” “kneed in the ribs,” and “beat up pretty bad.” He posited the following reason for why the bondsmen said defendant had a knife: “When you see pictures like this — you are a criminal jury. When you see pictures like this, you are a civil jury in a civil case and the issue is brutality. You don’t have the police protective league defending you because you are not the police officer. You don’t have . . . high-powered attorneys protecting you. Because you are a freelance bounty hunter, you are not the richest man on the planet.” “They get paid only when they detain someone. . . . If they are sued in civil court, it is devastating. How do you protect yourself from getting sued in civil court? Make up something so that if it is brought ever to court, well, . . . he stabbed me with a knife.” Defense counsel observed the bondsmen did not “want [Benson] there” and Odell told the 911 operator that defendant had no weapon. Defense counsel challenged Odell’s credibility, arguing: “We already talked about that demeanor of the witness, motive to lie. If you look, there is always a civil attorney to say, ‘You know what, somebody got beat up.’ Every time you see a police beating on TV, whether it is justified or not justified, there is always some attorney who is saying, ‘We are going to sue for excessive use of force.’ [¶] That person could have committed 15,000,000 murders, but there is still going to be a lawsuit. Whether it is [an] officer hitting someone in the head with a flashlight or someone —”

The court interjected: “Counsel, I think this is 352 argument. Let’s get to the facts of this case.” Resuming his argument, defense counsel observed the “bounty hunters spontaneously said [to Benson], ‘Look, he cut me,’ [and] show[ed] her the injury.” Defense counsel argued: “[W]hen you see somebody being carried out on a gurney, or escorted out by the police and he is getting medical attention, you do get worried. [¶] Are there things to lose? Yeah, there [are] a lot of things to lose. But, then the D.A. may say, ‘Well, did they cut themselves? . . . ’ That’s a hard one. Why would somebody cut themselves? [¶] . . . But, let’s say if you are going to lie and say someone cut you, and some people do this in domestic violence cases, people are capable of a lot of things. [¶] . . . Where would [be] the first place that you would cut if you were going to cut yourself? Would you cut your face and say, ‘Look, he cut me?’ No, you don’t want to mess up your face. [¶] Would you cut your arm? Well, if you are wearing a long sleeve shirt or some kind of sweater you would have to cut through the shirt. [¶] ‘He cut my leg,’ or torso. It is painful to fake a cut to your torso. Or the hand. Well, that’s the only place that is kind of visible aside from the face. So, you cut the hand. But, would you cut the fingers? If someone is coming at you with a knife and they cut you, wouldn’t there be two or three fingers cut?”

Defense counsel argued the bondsmen had mere paper cuts, there was no blood on the floor, wall, or defendant’s or their clothes, and Morgan was purportedly cut twice in the same spot. He exhorted the jurors, “So what you have to think about is was there an opportunity for these bounty hunters to open the knife and cut themselves, which sounds kind of ludicrous . . . . But, when you are dealing with bounty hunters you are not dealing with police officers. They didn’t go to the academy, generally speaking. [¶] And Newport Beach Police Department . . . does not want liability. They don’t want rogue officers who brutalize people, who cause their department to be put on the news for police brutality. [¶] So these bounty hunters, I don’t know if they went — if they were police officer rejects or not, but why would you become a bounty hunter and . . . only work for yourself? Because maybe no other company would hire you.”

At this point, the court summoned the attorneys to the sidebar and informed defense counsel he was “going off on a tangent involving evidence and facts that are not before this jury.” Defense counsel stated he would “stop it.” The court affirmed “it is totally appropriate to use an argument that these bounty hunters don’t rise to the professional level of police officer[s] without further description.” It invited counsel to “argue and compare and contrast to a police officer” and “argue anything that’s within the record as far as evidence is concerned”; and offered to discuss issues at sidebar. What the court disallowed was any suggestion “that there [are] civil suits floating around out there” or “bad character of these two guys that hasn’t been proven” or that they were “cop rejects.” “[I]n the interest of time and fairness,” the court limited defense counsel to the facts.

During the prosecutor’s rebuttal, she discussed defendant’s theory that the bondsmen cut themselves and then lied about it under oath. She pointed out Morgan testified that “out of 2,000 arrests, 15 to 20 resulted in physical altercations.” She talked about the bondsmen’s motivations: “Don’t you think that bounty hunters want to get somebody as clean and smooth and harmless as possible? [¶] Wouldn’t your motivation as a bounty hunter [be] to not get hurt, to not get in a struggle, to announce yourselves, ‘Hey, we are the bounty hunters,’ get our man and give [him] to the police department, go back and get your . . . money[?]” She contrasted this to defendant’s theory the bondsmen “decided, . . . for some unknown reason, to beat the snot out of [defendant] and then they have got to cover it up somehow.”

Under section 1044, a court bears the duty “to control all proceedings during the trial, and to limit . . . the argument of counsel to relevant and material matters, with a view to the expeditious and effective ascertainment of the truth regarding the matters involved.” (Ibid.) “A criminal defendant has a well-established constitutional right to have counsel present closing argument to the trier of fact. [Citations.] This right is not unbounded, however; the trial court retains discretion to impose reasonable time limits and to ensure that argument does not stray unduly from the mark.” (People v. Marshall (1996) 13 Cal.4th 799, 854-855 .) “It is axiomatic that counsel may not state or assume facts in argument that are not in evidence.” (People v. Stankewitz (1990) 51 Cal.3d 72, 102.)

Contrary to defendant’s assertion that his attorney was prevented from giving “the jury any cogent alternative explanation about why the bail agents may have self inflicted their wounds to avoid liability,” the court permitted defense counsel to explain and argue his theory clearly and exhaustively. Only when counsel strayed into suggestions that the bondsmen were failed police candidates or were the subject of civil lawsuits did the court restrain the argument. And even then, the court invited defense counsel to continue to contrast bounty hunters with police officers and to discuss any issues at sidebar. The court did not abuse its discretion by restricting defendant’s closing argument.

The Court’s Imposition of the Upper Term Did Not Violate Defendant’s Sixth Amendment Right to a Jury Trial

Defendant acknowledges this court is bound by People v. Black (2007) 41 Cal.4th 799 (Black II), but asks us to “reduce his prison sentence on Count One to the midterm of three years” because the “grounds that were used by the court to add an additional year to his sentence had not been pleaded by the prosecution, had not been admitted by appellant, and had not been proven beyond a reasonable doubt to a trier of fact.” He contends the court violated his constitutional right to a jury trial under the Sixth and Fourteenth Amendments.

The court sentenced defendant to the aggravated term of four years in state prison on count 1 “because of the prior felony conviction, the six pages of criminal offenses, arrest and/or convictions, [and] cutting at least one of these victims.” Defendant had a 1998 grand theft felony conviction “where he was ultimately sentenced to three years in state prison.”

In Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856], the United States Supreme Court held California’s determinate sentencing law (DSL) violated the Sixth Amendment because it “authorize[d] the judge, not the jury, to find the facts permitting an upper term sentence” and to find those facts by a preponderance of the evidence instead of beyond a reasonable doubt. (Cunningham, at pp. 868, 871.) Thus, “the DSL violate[d the] bright-line rule [articulated in Apprendi v. New Jersey (2000) 530 U.S. 466, 490:] Except for 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.’” (Id. at p. 868, italics added.)

In Black II, supra, 41 Cal.4th 799, our Supreme Court held “that imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant’s record of prior convictions.” (Id. at p. 816.) Black II noted the “United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction.” (Id. at p. 818.)

We are bound by the decision of the California Supreme Court in Black II, supra, 41 Cal.4th 799. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) The court’s imposition of the upper term for the aggravated assault in count 1 did not violate defendant’s constitutional right to a jury trial.

DISPOSITION

The judgment is affirmed.

WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.


Summaries of

People v. Burns

California Court of Appeals, Fourth District, Third Division
Jul 31, 2008
No. G038789 (Cal. Ct. App. Jul. 31, 2008)
Case details for

People v. Burns

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ROBERT BURNS, Defendant…

Court:California Court of Appeals, Fourth District, Third Division

Date published: Jul 31, 2008

Citations

No. G038789 (Cal. Ct. App. Jul. 31, 2008)