Opinion
E049484
08-04-2011
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL ANDREW CALDERON et al., Defendants and Appellants.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Michael Andrew Calderon. Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant Frank Galvan.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super.Ct.No. BLF004765)
OPINION
APPEAL from the Superior Court of Riverside County. John J. Ryan, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant Michael Andrew Calderon.
Nancy L. Tetreault, under appointment by the Court of Appeal, for Defendant and Appellant Frank Galvan.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Lilia E. Garcia and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendants Michael Andrew Calderon (Calderon) and Frank Galvan (Galvan) appeal from their convictions of the assault of Miguel Valdez (victim) by means of force likely to produce great bodily injury (Pen. Code, § 4501). The jury found a great bodily injury allegation true as to each appellant (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8)). As to Calderon, a prior strike allegation (§ 667, subds. (c) and (e)(1)) and three prior prison term commitments (§ 667.5, subd. (b)) were found to be true. As to Galvan, three prior strike allegations (§ 667, subds. (c) and (e)(1)), one prior prison term commitment (§ 667.5, subd. (b)), and two prior serious felony convictions (§ 667, subd. (a)) were found true.
All further statutory references are to the Penal Code unless otherwise indicated.
Galvan contends the trial court violated his Sixth Amendment right to confront and cross-examine an adverse witness; that he was provided with ineffective assistance of counsel; and that the court erroneously imposed two 5-year prior serious felony enhancements instead of one. Calderon contends the trial court erred in admitting his statement that was the product of an unlawful custodial interrogation; in failing to instruct the jury, on its own motion, on the defenses of duress and necessity; and in denying his motion to dismiss his prior strike conviction for purposes of sentencing. We affirm.
II. STATEMENT OF THE CASE
In July 2009, the jury found defendants guilty as charged and found the great bodily injury allegations true. In bifurcated proceedings, the trial court found the prior conviction allegations true as to Galvan under section 667.5, subdivisions (b), (c), and (e)(1), and section 667, subdivision (a). Galvan was sentenced to 38 years to life because of his status as a "Three Strikes" offender, the great bodily injury enhancement, and his two prior serious felony convictions. The trial court found prior conviction allegations as to Calderon true under 667.5, subdivisions (b), (c), and (e)(1). Calderon was sentenced to 16 years because of the great bodily injury enhancement and a prior serious felony conviction.
III. STATEMENT OF THE FACTS
A. People's Case
On July 2, 2007, Correctional Officer Kenneth Wood was working as a search and escort guard at the Ironwood State Prison in Blythe, California. At 7:00 p.m., after inmates finished their evening meals, Officer Wood noticed "a lot of fast movement" in the recreation area about 15 yards from where he was standing. He turned and saw inmates fighting. He observed defendants striking the victim with punches as the victim attempted to defend himself by "covering up." The officer did not see the victim return any punches. Officer Wood radioed the observation tower to sound the alarm, which was supposed to prompt the inmates to drop to the ground in a prone position.
Officer Wood ran toward the altercation and yelled, "Get down." Calderon dropped to the ground in a prone position, but Galvan continued assaulting the victim. The victim "[c]rumpled down to the ground" and appeared to lose consciousness. Galvan continued forcefully kicking the victim's chest and punching his face as he lay on the ground incapacitated. When Officer Wood reached the men, Galvan finally got down on the ground and was placed in handcuffs. Galvan was then escorted to a holding cell, which was normal procedure for such incidents.
Correctional Officer Esmeralda Zamora responded to Officer Wood's radio call and was one of the first correctional officers at the scene of the fight. As she ran toward the altercation, she saw Galvan and Calderon each hitting the victim. The victim fell to the ground, seemingly unconscious. Calderon "proned out" on command, and Galvan followed after him. Once she reached the scene, Officer Zamora noticed the victim was gagging on his own blood, so she rolled him onto his side. She then handcuffed Calderon and escorted him to the holding cell.
While in the holding cell, Calderon expressed concern over the victim's condition. Calderon told Officer Zamora, "'They made me do it. I didn't want to hurt him, but I had to.'" Calderon also expressed that he was "short to the house"—meaning that he was close to his release date—and was concerned about how the fight would push his release date back. Officer Zamora testified on cross-examination that she recognized Galvan and Calderon right away because she had stopped a cell fight between them a week earlier.
The nurse at Ironwood State Prison and the doctor at Desert Regional Medical Center where the victim was airlifted, both testified that the victim had a concussion, an altered level of consciousness, and multiple bruises, abrasions and lacerations. The doctor reported the victim had a broken rib and a concussion.
B. Defense's Case
Galvan testified in his own defense and admitted he had two robbery convictions and one attempted robbery conviction. He testified that immediately before the incident, he was walking through the yard after having received his daily seizure medication at the nurse's office. The medication made him feel drowsy. He stated that he experienced a blow to the back of the head, which further "dazed" and "disoriented" him. In response, and in an effort to defend himself, he began swinging aimlessly and only later learned that he was hitting the victim, whom he did not know, and Calderon. Galvan could not recall how many times he hit his fellow inmates but was certain that he never kicked anyone.
In the course of the altercation, Galvan was also punched in the eye, chest, and on the front of his head. One punch landed near where Galvan had suffered a serious head injury when he was 14 years old. The punch caused him to go into a "blank state"— which usually happens when he is punched in that area—and he did not recall ever hearing the alarm sound or anyone telling him to get down on the floor more than once. When he did actually hear Officer Wood yell at him to get down, he complied. Galvan was unable to recall any of the details of the fight, including who hit him, whom he hit, and whether or not he hit the victim when the victim was lying unconscious on the floor. After he was handcuffed, Galvan had to be held up while being escorted to the holding cell because he was "in a daze."
C. People's Rebuttal Case
Officer Wood testified that he handcuffed Galvan while Galvan was "proned" on the ground and pulled him up by his arm. As the officer escorted him to the holding cell, Galvan was able to walk on his own without staggering or weaving, and he did not need assistance. He was able to follow instructions and did not complain of any injuries. Officer Wood kept a log of Galvan's behavior while he was in the holding cell and made an entry every 15 minutes for over two hours noting the inmate was "okay." While he was in the holding cell, Galvan was examined by a nurse and did not complain of being dazed or having a seizure. He required no medical treatment after the altercation.
D. Additional Background
At the Evidence Code section 402 hearing on the admissibility of Calderon's statement, the trial court asked Galvan's counsel whether there was any Sixth Amendment issue. Counsel responded, "Not really." The dialogue continued:
"THE COURT: The only possible words, 'They sent me.'
"[Galvan's counsel]: Unless they could have the inference that my client sent him. I don't know.
"THE COURT: Other than that, it's pointed right at Mr. Calderon. So the 'they' is the only—inferentially, it would probably exclude Mr. Galvan."
The Prosecutor agreed there was no Sixth Amendment problem, and the court concluded, "I think it's vague enough. I think it would indicate that the 'they' did not include Mr. Galvan."
Immediately after Officer Zamora testified about Calderon's statements, the trial court instructed the jury, "You just heard reference to a statement made by Mr. Calderon. Everybody heard that? If you find such a statement was made, whatever relevance there is, it's only admissible as to the person making the statement; Mr. Calderon, not Mr. Galvan. Okay. I'll give you an instruction. It's limited to the person making the statement. That's it." The trial court later instructed the jury that Calderon's statement could be used only against him.
IV. DISCUSSION
A. Galvan's Sixth Amendment Confrontation Claim
Galvan alleges the trial court violated his Sixth Amendment right to confront and cross-examine an adverse witness by introducing into evidence Calderon's statement, "They made me do it. I didn't want to hurt him, but I had to." Although Galvan forfeited his right to appeal by failing to object (People v. Scott (1994) 9 Cal.4th 331, 356), he has also raised the issue in the context of a claim of ineffective assistance of counsel, and the People have addressed the issue on the merits. We will therefore entertain Galvan's Sixth Amendment claim. (People v. Williams (1998) 17 Cal.4th 148, 161-162, fn. 6 [appellate court has discretion to adjudicate a claim despite a party's forfeiture].)
We review alleged Confrontation Clause errors under the harmless-beyond-a-reasonable-doubt standard. (People v. Anderson (1987) 43 Cal.3d 1104, 1128, superseded by statute on another ground as stated in People v. Letner & Tobin (2010) 50 Cal.4th 99, 163 and fn. 20.)
It is generally presumed that a jury obeyed the court's admonitions and limiting instructions. (People v. Turville (1959) 51 Cal.2d 620, 636.) However, in People v. Aranda (1965) 63 Cal.2d 518, pages 526 through 527, superseded by statute on another ground as stated in People v. Fuentes (1998) 61 Cal.App.4th 956, 962, footnote 5, the California Supreme Court held that in joint trials where courts admit a codefendant's confession, instructions not to use that confession against the nonconfessing codefendant are not always sufficient to avoid "miscarriage[s] of justice." The United States Supreme Court concurred with Aranda in Bruton v. United States (1968) 391 U.S. 123, 135, 136, and articulated in Richardson v. Marsh (1987) 481 U.S. 200, 207, 208, that the Sixth Amendment right of confrontation is violated when the "facially incriminating" confession of a nontestifying codefendant is introduced at a joint trial.
Galvan argues that Calderon's statement, "They made me do it," was facially incriminating and any reasonable juror could infer that the pronoun "they" referred to Galvan. Although Galvan does not deny that he assaulted the victim, he contends the admission of Calderon's statement directly undermined his position that he was acting in self-defense.
However, the evidence on record strongly discredits his defense. Officers Wood and Zamora were on the scene within seconds after the fight began. Although neither witnessed how the fight started, it is clear from their accounts that, even if Galvan was struck first by the victim, Galvan used significantly more force than was necessary to defend against any perceived danger, thus extinguishing his right to self-defense.Officer Wood testified that right after directing his attention to the fight, he saw Galvan and Calderon both striking the victim, who was "[j]ust covering up" and not throwing any punches back. Galvan did not respond to Officer Wood's initial command to "get down" and continued assaulting the victim. When the victim "crumpled" to the floor, apparently unconscious, and stopped trying to protect himself, Galvan continued the assault and struck the victim with "forceful" kicks to the chest and head until Galvan finally complied with Officer Wood's commands. Officer Zamora's testimony coincided with Officer Wood's, in that she also saw Galvan and Calderon both hitting the victim together until the victim fell to the floor, although she did not see any kicking.
The jury was instructed on the limits of self-defense as follows: "The right to use force in self-defense continues only as long as the danger exists or reasonably appears to exist. When the attacker no longer appears capable of inflicting any injury, then the right to use force ends." (CALCRIM No. 3472.)
Galvan also claims that although he initially acted in self-defense, a blow to his head—the site of an old injury—caused him to lose his "ability to reason" and threw him into a "dazed mental state." Thus, he argues that his excessive use of force was a result of unconscious behavior. This defense theory is unpersuasive and heavily contradicted by the evidence. Galvan's testimony demonstrates he was sufficiently conscious during the altercation. Galvan recalled hitting someone and swinging his fists in "self-defense"; being hit by others throughout the fight and knowing exactly where he was being hit; never kicking anyone throughout the altercation; and hearing Officer Wood command him to get down. After the altercation, Officer Wood handcuffed Galvan and escorted him to a holding cell. Galvan did not complain to Officer Wood of any injury and was able to follow all his instructions. Officer Wood also kept a log in which he recorded Galvan's condition every 15 minutes for over two hours; all entries read "okay." Forty-five minutes after the altercation, Galvan was examined by a nurse and did not complain of any blackouts or injuries. In light of this evidence, it is clear that despite his claim of being in a "dazed" state during the course of the fight, Galvan was sufficiently conscious to be liable for assault.
The jury was instructed that Galvan would not be guilty of assault if he acted while "legally unconscious . . . . [which is when someone] is not conscious of his or her actions." (CALCRIM No. 3425.)
We therefore conclude that any purported error on the part of the trial court in admitting Calderon's statement was harmless beyond a reasonable doubt, because of the overwhelming evidence incriminating Galvan and undercutting his defenses.
B. Galvan's Ineffective Assistance of Counsel Claim
Galvan next argues that he was not given effective assistance of counsel. Galvan testified extensively about a head injury he sustained at the age of 14. He testified that when he was hit near the site of that injury, he went into a "dazed" state and lost all sense of reason. Galvan claims this injury "formed the linchpin of his defense" and faults his counsel for not introducing evidence corroborating it at trial.
To succeed on an ineffective assistance of counsel claim, a defendant must show that his trial counsel performed below the standard expected of reasonably competent attorneys acting as diligent advocates (People v. Duncan (1991) 53 Cal.3d 955, 966), and that it is reasonably probable a more favorable determination would have been reached absent the counsel's deficiency. (Ibid.) In determining whether the defendant has established the first prong—that his counsel's performance was not reasonably competent—courts are "highly deferential" to the attorney's performance. (Ibid.) The court must reject an ineffective assistance claim where the record provides no explanation for the attorney's course of action, unless there can be no reasonable explanation for such action. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058.)
Here, the record does not provide any explanation as to why Galvan's counsel did not introduce more evidence at trial regarding Galvan's head injury and the effect it may have had on his mental state. However, there could have been numerous plausible explanations for the decision. Galvan's counsel may have reasonably decided to focus on the self-defense claim—no element of which would have been supported by further evidence of the injury—rather than the defense of unconsciousness. Although more evidence about the injury may have been availing under an unconsciousness defense, the theory, as discussed earlier, was heavily contradicted by Galvan's testimony. Galvan recalled consciously swinging in self-defense, landing punches, being hit in different parts of his body, and complying with Officer Wood's command to get down on the floor. It would have been entirely reasonable, indeed advisable, for Galvan's counsel not to waste resources and time strengthening a defense that had little to no chance of success. Accordingly, we reject Galvan's effective assistance of counsel claim before even reaching the second prong of the analysis.
C. Galvan's Two Prior Serious Felony Conviction Enhancements
Galvan argues that the trial court improperly imposed two 5-year enhancements under section 667, subdivision (a), for two robbery convictions sustained in the same trial. Multiple enhancements under section 667, subdivision (a), must stem from charges "'brought and tried separately.'" (People v. Fuhrman (1997) 16 Cal.4th 930, 939.) The amended information listed Galvan's first serious prior offense as an attempted robbery conviction in 2001 and his second as a robbery conviction in 2004. The trial court explicitly recognized that the prosecution alleged the 2001 attempt as a five-year prior. Thus, we reject Galvan's contention that his two section 667, subdivision (a), enhancements stemmed from the same trial.
D. Calderon's Miranda Violation Claim
Calderon argues the trial court erred in admitting his statement because it was obtained in violation of Miranda v. Arizona (1966) 384 U.S. 436 (Miranda). "In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendant's rights under [Miranda], we accept the trial court's resolution of disputed facts and inferences, and its evaluation of credibility, if supported by substantial evidence. [Citation.]" (People v. Wash (1993) 6 Cal.4th 215, 235-236.) "Although we independently determine whether, from the undisputed facts and those properly found by the trial court, the challenged statements were illegally obtained [citation], we '"give great weight to the considered conclusions" of a lower court that has previously reviewed the same evidence.' [Citations.]" (Id. at p. 236.)
Calderon argues that the statement, "They made me do it," which he made to Officer Zamora after the altercation, should not have been admitted because it was the product of a non-Mirandized custodial interrogation. (Miranda, supra, 384 U.S. at pp. 473-474.) Despite Calderon's extensive discussion of case law, the basis of his contention is largely factual. Calderon states that Officer Zamora failed to provide him with any Miranda warning and began questioning him about why he would become involved when he was so close to his release date. Then, Calderon recounts, "during the course of their conversation" he made the statement acknowledging his involvement in the assault. This account runs counter to the trial court's factual findings. Although the trial court conceded that Officer Zamora did not recite Calderon his Miranda rights, it found "there was no interrogation by Officer Zamora"; that Calderon's statements "were volunteered" and "not [made] in response to anything said by Officer Zamora"; and that any inquiry made by Officer Zamora into why he had committed the assault was done after Calderon volunteered the statement, "They made me do it." The trial court had substantial evidence upon which to base these findings. During the Evidence Code section 402 hearing, Officer Zamora testified that Calderon's statement was not made in response to any question she posed to him and that he had volunteered the statement without being provoked. The court found Officer Zamora to be a "very credible witness" and concluded, consistent with her testimony, that Calderon's statement was spontaneous and not the product of custodial interrogation. Because we are not entitled to reweigh the evidence, we are compelled to sustain the trial court's admission of Calderon's incriminating statement.
E. Trial Court's Sua Sponte Duty to Instruct on the Defenses of Duress and Necessity
Calderon argues the trial court erred by failing, on its own motion, to instruct the jury on the defenses of duress and necessity. The court's duty to give instructions sua sponte on particular defenses arises "if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case." (People v. Sedeno (1974) 10 Cal.3d 703, 716, overruled on another ground in People v. Breverman (1998) 19 Cal.4th 142, 149.) We find that substantial evidence does not support either duress or necessity and that these defenses were directly inconsistent with Calderon's theory of the case at trial.
Duress requires the defendant to show that he acted under immediate threat of harm and reasonably believed his life was in danger so that he thus did not have time to form the required criminal intent. (§ 26, subd. Six; People v. Heath (1989) 207 Cal.App.3d 892, 899-901.) Necessity requires the defendant to show that he violated the law to prevent a greater evil than the one avoided; that he had no alternative; that he had a good-faith, objectively reasonable belief in the necessity of his course of action; and that he had no part in creating the danger he was attempting to avoid. (People v. Pepper (1996) 41 Cal.App.4th 1029, 1035.)
Calderon's argument is based almost entirely on the self-serving statement he made to Officer Zamora after the altercation, in which he claimed "they" made him do it. However, the record does not illuminate for us who threatened Calderon, what the nature of the threat was, and when the threat was made. Without any of this information, it is impossible to weigh the harm inflicted against the harm avoided, assess the immediacy of the threat, determine whether reasonable alternatives did or did not exist, or determine if Calderon reasonably feared immediate harm. Thus, we find that substantial evidence did not support either defense.
Moreover, both defenses were inconsistent with Calderon's theory of the case. (See People v. Celis (2006) 141 Cal.App.4th 466, 474-475 [no duty to instruct on a defense inconsistent with the defendant's theory of the case].) His counsel's trial strategy was to demonstrate that the prosecution did not prove each element of its case beyond a reasonable doubt. Calderon argued that the officers could have easily forgotten the details of the two-year-old altercation. He described the altercation as chaotic and hinted that an onlooker may have easily mistaken the victim as the aggressor and vice versa. He attempted to instill doubt in the jury's mind about whether the victim's injuries could truly be considered severe enough to warrant a great bodily injury enhancement. Defense counsel may have reasonably concluded that asserting a duress or necessity defense in the alternative would have severely undermined his strategy and been perceived by the jury as an admission. Accordingly, the trial court had no duty to instruct on either duress or necessity on its own motion.
Calderon also put forth an ineffective assistance claim in the event we found a waiver of the right to request instructions on duress and necessity. Because we addressed the merits of the issue, this contention is moot.
F. The Trial Court's Denial of Calderon's Romero Motion
Finally, Calderon appeals the denial of his motion to dismiss his prior strike conviction pursuant to section 1385, subdivision (a), and People v. Superior Court (Romero)(1996) 13 Cal.4th 497 (Romero). Under section 1385, subdivision (a), a judge may order an action to be dismissed in the furtherance of justice. Romero extended that discretion by holding that a judge may vacate a finding that the defendant has previously been convicted of a serious felony for the purposes of Three Strikes sentencing. (People v. Carmony (2004) 33 Cal.4th 367, 373.) We review the trial judge's decision granting or denying a request to dismiss a sentencing allegation under an abuse of discretion standard. (Id. at p. 375.) Unless the defendant shows that the sentencing decision was arbitrary or irrational, we will not find the trial court's determination to be an abuse of discretion. (People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 977-978.)
In determining whether to dismiss a strike, the trial court must determine whether the defendant is the type of criminal whom the Three Strikes law was meant to target. (People v. Williams (1998) 17 Cal.4th 148, 160-161.) In this regard, the court is directed to consider the "nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects." (Id. at p. 161.)
Calderon argues that the court abused its discretion because it failed to account for the several mitigating factors in his case. The correctional officers' testimonies indicated Calderon was only collaterally involved in the assault and expressed remorse for having been involved at all. Moreover, Calderon's prior felony conviction was 11 years earlier for residential burglary, an allegedly nonviolent offense. Despite these "mitigating" circumstances, however, we find nothing arbitrary or capricious about the trial court's decision. During the sentencing hearing, the trial court explicitly stated its reasons for denying the Romero motion: "[Calderon's] prior history is too extensive. He started as a juvenile. He had several grants of probation violated. It's too many felony convictions." The same year as his burglary conviction, Calderon sustained a misdemeanor conviction for resisting arrest. Five years later, in 2003, Calderon was convicted of battery against transportation personnel. In 2004, he was convicted of possessing controlled substances. Finally, in 2006, he was sentenced to three years for a domestic violence conviction. In light of this extensive evidence of recidivism, we conclude that the trial court acted well within its discretion when it denied Calderon's Romero motion.
V. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
KING
J.
MILLER
J.