Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, M. Marc Kelly, Judge., Super. Ct. No. 05CF2823.
Phillip I. Bronson, 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, Maxine Cutler and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
BEDSWORTH, ACTING P. J.
Abel Castaneda appeals from his conviction on charges of assault with a deadly weapon (Pen. Code, § 245, subd. (a)(1)), which was found to be a “hate crime” committed wholly or partially because of the victim’s race or ethnicity (§§ 422.55 and 422.75, subd. (a)); and of making a criminal threat (§ 422). Castaneda admitted he had three prior felony convictions within the meaning of section 667.5, subdivision (b). He was sentenced to the upper term of four years on the assault charge, plus a three-year enhancement for the hate crime. He was also sentenced to the midterm of two years, concurrent, for the criminal threat, and his sentence was enhanced an additional year for each of the three priors.
All further statutory references are to the Penal Code.
Castaneda argues the court erred in several respects. He asserts the court was obligated to instruct the jury on the crime of “brandishing” (§ 417, subd. (a)(1)), which he contends is a lesser included offense included in the crime of assault with a deadly weapon. He also contends the evidence was insufficient to sustain the distinct charge of making a criminal threat, because by the time he uttered the words “I’m gonna kill you,” he no longer posed a realistic threat to the victim. He argues he could not be separately sentenced for both the assault and the criminal threat, as the crimes shared the same intent and objective; i.e., to “frighten and intimidate” his victim. And finally, he contends imposition of the upper term for his assault conviction was based upon the court’s own improper determination of aggravating factors, and thus constituted a violation of his right to a jury trial.
We find no merit in these contentions. Even assuming a “brandishing” charge could be construed as a lesser included (rather than a “lesser related”) charge to the assault with a deadly weapon, the evidence in this case was not consistent with the conclusion Castaneda merely “brandished” his weapon. As for the assertion his criminal threat could not be taken seriously, we note that it followed closely on the heels of his repeated attempts to stab his victim, who was a stranger to him. Under those circumstances, we think it would be difficult for anyone to construe his threat as other than a serious one.
Castaneda’s contention his assault and his criminal threat must be construed as a single act for sentencing purposes is likewise unavailing. An assault is defined as an “attempt . . . to commit a violent injury.” As such, its objective is not merely to “frighten or intimidate” the victim.
And finally, although Castaneda correctly predicted that our Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238, would be disapproved by the United States Supreme Court in Cunningham v. California (2007) __ U.S. __ [127 S.Ct. 856], we nonetheless conclude the trial court could properly sentence him to the upper term for the assault charge, based upon his history of recidivism.
The judgment is affirmed.
* * *
In the early afternoon of August 23, 2005, Steve Lawson, an African-American, was outside the auto repair shop where his car was being serviced. Lawson, a long-time customer of the shop, had stepped out to make a telephone call. While he was on the phone, he saw defendant Castaneda, a stranger to him, fall off of his bicycle a short distance away.
Castaneda got back on his bike, and noticed that Lawson was looking at him. He became angry, exclaiming “You fucking nigger. What are you looking at, fucking nigger?” Lawson did not respond to Castaneda, but told the person on the other end of his telephone conversation that he had to end it.
Castaneda continued to hurl racial epithets at Lawson, who started to walk away. Castaneda began shouting his epithets more loudly, and came after Lawson on his bicycle. When Castaneda caught up with Lawson, he got off his bike and confronted him. Castaneda reached into his pocket and said to Lawson “I’m gonna kill you, fucking nigger. I’ll kill your ass. I’ll just fucking kill you. What the fuck you looking at?”
Lawson responded “Hey man, . . . I don’t know what the problem is but go. Leave me alone.” Castaneda, who was standing only a couple feet away from Lawson, then pulled a folded “buck knife” out of his pocket, removed some keys attached to it, and thrust it toward Lawson in a sweeping motion in an attempt to “gouge” him.
The knife came within three or four inches of Lawson, who jumped back, and raised his hands in a defensive gesture. Castaneda then thrust the knife toward Lawson twice more, but Lawson again managed to avoid it. Lawson grabbed Castaneda’s wrist above where he was holding the knife, punched him and took the knife away.
This, of course, made Castaneda even angrier. He told Lawson “I’ll still take care of you, nigger.” Lawson began to walk away with the knife, but Castaneda actually had the nerve to demand its return. As Lawson continued to walk away, Castaneda went into the auto repair shop, saying “where is your fucking car at? I know you have a fucking car. . . . I’ll go break all the windows out of your car.” Lawson followed him into the shop, denying that he had a car in there.
After both had left the shop, Castaneda continued to follow Lawson, approaching him in a stance which suggested he intended to fight. Lawson punched him out again, knocking him down. He did not stay there, however. He got back up, claiming “You didn’t hurt me, nigger, you didn’t hurt me.” As he approached Lawson for a third time, three young Hispanic males came toward them from down the street, calling out “Abel.” The owner of the auto shop was also present, and told the young men not to get involved. They left. Lawson then called “911,” and when Castaneda heard him talking to the operator, Castaneda finally began walking away.
When the police arrived, Lawson flagged them down and explained what had happened. Castaneda was later apprehended, but claimed not to remember the details of the incident. He explained he had consumed alcohol and drugs prior to the time of the incident, was under the influence of those substances, and had probably blacked out. Castaneda did recall seeing Lawson while he was on his bicycle, and correctly described Lawson as being six to eight inches taller than himself. Castaneda denied having any hostility toward people of other races, and surmised that if the incident had occurred, Lawson had probably provoked him, since his alleged “behavior [was] out of character for him.”
I
Castaneda first argues the court erred when it refused his request to instruct the jury regarding “brandishing” his knife, which he contends is a “lesser included” of the assault with a deadly weapon charge. As Castaneda correctly asserts, the court is obligated to instruct the jury regarding the elements of any lesser included offense which is supported by the evidence. (People v. Barton (1995) 12 Cal.4th 186, 194-195.)
“Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser.” (People v. Birks (1998) 19 Cal.4th 108, 117.) In this case, this question is whether the crime commonly referred to as “brandishing” is a lesser included offense to the crime of assault with a deadly weapon.
“Brandishing” is described in section 417, subdivision (a)(1), which provides: “Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner . . . is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days.”
An assault is defined in section 240 as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” When such an assault is accomplished by means of “a deadly weapon or instrument other than a firearm, or by any means of force likely to produce great bodily injury” the defendant is subject to “imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.” (§ 245, subd. (a)(1).)
In this case, the trial court relied upon People v. Steele (2000) 83 Cal.App.4th 212, in rejecting Castaneda’s contention that brandishing qualifies as a lesser included offense to the charged assault with a deadly weapon. The court instead concluded that brandishing was merely a “lesser related” charge, which would not qualify for mandatory instruction. (People v. Birks, supra, 19 Cal.4th 108.) Castaneda does not quibble with the court’s interpretation of Steele, and, in fact, acknowledges that other Courts of Appeal have reached the same conclusion. Castaneda’s argument is that all those decisions are inconsistent with our Supreme Court’s treatment of the issue in People v. Wilson (1967) 66 Cal.2d 749, and thus are not dispositive.
In Wilson, the court did not expressly hold that brandishing is a lesser included offense to assault with a deadly weapon, but did reverse a conviction on the latter charge, because the defendant in that case “did not shoot or strike [the victim]; had the jury been instructed on section 417 the evidence would have justified a conclusion that defendant committed a violation of that section rather than the assault found.” (People v. Wilson, supra, 66 Cal.2d. at p. 764.)
The point is interesting, but we need not attempt to resolve it because even if we agreed with Castaneda’s legal argument, we could not agree with his conclusion regarding the instructions in this case. The problem is the evidence in this case does not justify the conclusion he merely “brandished” his knife. Lawson’s testimony was consistent and uncontradicted that Castaneda in fact attempted to stab him.
Castaneda argues there was room for the jury to conclude he merely “exhibited the knife in a rude or angry manner,” because the police officer who took Lawson’s initial statement testified that in the first interview, Lawson never described Castaneda as “swinging or swiping the open blade” toward him during the altercation. Castaneda views that omission as inconsistent with Lawson’s later testimony in court, and asserts that it creates an ambiguity about what actually happened.
We disagree. What the officer said was that Lawson told him during the first interview that Castaneda had “jutted” the knife at him, which the officer himself interpreted as meaning that Castaneda had swung the knife toward Lawson. But even assuming the officer misunderstood the meaning of “jut,” it would not change the fact that what Lawson described was an assault. According to the dictionary, the verb “jut” means “to shoot out forward: protrude . . . to cause to jut . . . .” (Webster’s 3d New Internat. Dict. (1981) p. 1229.) Thus, the only “ambiguity” in Lawson’s account of the incident is whether Castaneda merely shot the knife forward at him, or swung it at him. That is merely a cavil about how the assault was committed, not impeachment of its existence.
In light of the uncontradicted evidence Castaneda attempted to stab Lawson with his knife, rather than merely displaying it, the court did not err in refusing to instruct the jury on “brandishing.”
II
Castaneda also challenges the sufficiency of the evidence to support his conviction on the charge of making a criminal threat. He points out that to constitute a criminal threat, the words uttered must “convey to the person threatened, a gravity of purpose and an immediate prospect of execution . . .,” (§ 422) and contends the statements attributed to him in this case do not rise to that level. According to Castaneda, “[t]he uttering of racial epithets by appellant and his threat to kill Lawson appear to be the sheer bravado of an angry and inebriated man and being bravado negates the gravity of purpose and immediacy of these words.” (Italics added.) We are not persuaded.
The “appearance” of Castaneda’s words, in the context in which they were uttered, was an issue for the jury to decide. And we certainly could not conclude, in the abstract, that an aggressor’s inebriated state would mitigate the gravity of a threat. In fact, our inclination would be quite the contrary.
We are likewise unpersuaded by Castaneda’s assertion his statements were “mere rantings” and should not have been perceived as actual threats, because he “had no rational[] motive to harm [Lawson].” Not to put too fine a point on it, “rational” is not the standard by which Lawson (or the jury) was required to evaluate Castaneda’s propensities. Indeed, it is probably fair to assume that most criminal threats do not come from a “rational” place, and both juries and recipients of threats would err if they disregarded them on that basis.
In any event, the evidence in this case was sufficient to support the jury’s determination Castaneda actually did attempt to stab Lawson; consequently, we could hardly conclude it was unreasonable for someone in Lawson’s position to have genuinely believed Castaneda intended to carry out his threat at the time he uttered it. Based on the foregoing, we conclude the charge of making a criminal threat was sufficiently supported by the evidence.
III
Castaneda also contends that pursuant to section 654, the court erred in sentencing him separately for the assault and the criminal threat of “I’m gonna kill you.” According to Castaneda, those two crimes are part of a single criminal intent, which was to “frighten and intimidate” Lawson, and thus cannot be treated as separate crimes for purposes of sentencing. (See People v. Perez (1979) 23 Cal.3d. 545, 551.) Not so.
While the likely purpose of the verbal threat was to frighten or intimidate Lawson, Castaneda was also convicted of assaulting him with a knife – which means the jury concluded that Castaneda also intended to physically injure him. That is a distinctly different goal from the mere intent to “frighten and intimidate.”
An assault is defined as “an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another.” (§ 240, italics added.)
Moreover, this case must be distinguished from the situation in which the perpetrator has some overarching criminal goal, such as robbery, and uses both a knife and verbal threats to accomplish that goal. Instead, Castaneda simply committed two separate, albeit related crimes. The court did not err in treating the crimes as separate for purposes of sentencing.
IV
Finally, Castaneda challenges the propriety of the court’s decision to sentence him to the upper term for the assault with a deadly weapon. Castaneda contends that under the version of California’s determinant sentencing law in effect at the time of his sentencing, the court could not impose such a sentence based upon its own factual findings, and that our Supreme Court’s decision to the contrary in People v. Black, supra, 35 Cal.4th 1238, was incorrectly decided.
Normally, such an argument would be unavailing, but while this case was pending on appeal, the United States Supreme Court decided Cunningham v. California, supra, ___ U.S. ____ [127 S.Ct. 856], disapproving Black.
The Attorney General argues the sentencing issue was waived because Castaneda failed to raise it in the trial court, but we cannot agree. Arguing the issue in the trial court would have been futile prior to the Cunningham decision, because our own Supreme Court had concluded, in People v. Black (2005) 35 Cal.4th 1238, that the trial court could properly make factual determinations regarding aggravating factors for purposes of our determinate sentencing law. The failure to make a futile argument does not amount to a waiver. (People v. Boyette (2002) 29 Cal.4th 381, 432; People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648.)
Additionally, our Supreme Court rejected a similar waiver argument, made after remand from the U.S. Supreme Court in People v. Black (2007) 41 Cal.4th 799 (Black II). As our court explained, no waiver occurs “‘when the pertinent law later changed so unforeseeably that it is unreasonable to expect trial counsel to have anticipated the change.’” (Id. at p. 810, quoting People v. Turner (1990) 50 Cal.3d 668, 703.)
We therefore reject the waiver arguments and turn to the merits. In that regard, we conclude that even in the wake of Cunningham, the court’s decision to impose the upper term on the assault charge was proper, and no remand is necessary.
The court’s decision was based primarily on Castaneda’s prior criminal history, which it characterized as including “[p]rior convictions as an adult [which] are numerous and increas[ing] in seriousness,” plus a “prior performance on parole [which] has been unsatisfactory.” The court also noted that Castaneda “was on probation at the time [he] committed these felony crimes.”
Castaneda first argues the court’s findings are unsupported by admissible evidence, and thus must be disregarded entirely. We disagree. The record reflects that in reaching its sentencing decision, the court considered the information contained in Castaneda’s probation report, and the court’s reliance on such evidence is directly authorized by statute.
Section 1170, subdivision (b) provides: “In determining whether there are circumstances that justify imposition of the upper or lower term, the court may consider the record in the case, the probation officer’s report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing.” Additionally, the statute allows the defendant to dispute the evidence submitted, including the contents of the probation report: “At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation to dispute facts in the record or the probation officer’s report, or to present additional facts.” Clearly, the contents of the probation report, among other things, are deemed by statute to constitute admissible evidence for purposes of the sentencing hearing, and if the defendant wishes to dispute any of the facts contained therein, it is incumbent upon him or her to offer additional evidence on the point.
People v. Banuelos (2005) 130 Cal.App.4th 601, 607, cited by Castaneda, is inapposite. Banuelos concerned the use of hearsay information contained in the probation report from a prior case to establish whether that prior conviction qualified as a “strike.” The Banuelos opinion cited People v. Reed (1996) 13 Cal.4th 217, as authority for its conclusion, and Reed, in turn, specifically distinguished that situation from what occurred here; i.e., the court’s reliance on such hearsay “at sentencing.” (Id. at p. 230.) There is simply no basis to assert that a defendant’s criminal history must be established by evidence separate and apart from the probation report for purposes of choosing the appropriate term for sentencing in the current case.
Castaneda next argues that under the version of California’s determinant sentencing law in effect at the time of his sentencing, the aggravating “facts” required to be weighed in determining whether a defendant should be subject to the upper term must be either admitted by the defendant or submitted to a jury and decided under the “beyond a reasonable doubt” standard. As a general matter, he is correct; that is the holding in Cunningham. (See also Blakely v. Washington (2004) 542 U.S. 296; Apprendi v. New Jersey (2000) 530 U.S. 466.)
However, the Cunningham rule does has one significant exception, which comes into play in this case. The jury trial requirement does not apply to the fact of “a prior conviction.” (Cunningham v. California, supra, 127 S.Ct. at p. 864, citing Almendarez-Torres v. United States (1998) 523 U.S. 224.) And our Supreme Court has indicated that the prior conviction exception – also known as the “recidivism” exception – applies broadly to all sentencing determinations which require a mere “examination of court records pertaining to a defendant’s prior conviction to determine the nature or basis of the conviction . . . .” (People v. McGee (2006) 38 Cal.4th 682, 709.) As the court explained, such an inquiry is “‘the type . . . that judges traditionally perform as part of the sentencing function.’” (Ibid., quoting People v. Kelii (1999) 21 Cal.4th 452, 456; see also People v. Thomas (2001) 91 Cal.App.4th 212, 221-222, quoting U.S. v. Skidmore (2001) 254 F.3d 635, 642 [“[C]ourts have not described Apprendi as requiring jury trials on matters other than the precise ‘fact’ of a prior conviction. Rather, courts have held that no jury trial right exists on matters involving the more broadly framed issue of ‘recidivism.’”) The court recently reaffirmed its McGee analysis in Black II. (Black II, supra, 41 Cal.4th 799, 819.) That being the case, there is no requirement such issues be submitted to a jury trial or subjected to the beyond-a-reasonable-doubt standard of proof.
In our view, at least two of the factors relied upon by the court in this case to justify Castaneda’s aggravated sentence fall comfortably within the “prior conviction” exception. First, the court found that Castaneda’s “[p]rior convictions as an adult are numerous and increas[ing] in seriousness” That qualifies as a finding “of a prior conviction” in even its narrowest sense. Second, the court found Castaneda “was on probation at the time of this offense.” And while this is not technically the fact “of a prior conviction,” it is nonetheless a closely related issue, and one which can be determined by a mere “examination of court records pertaining to a defendant’s prior conviction . . . .” (People v. McGee, supra, 38 Cal.4th 682, 709, italics omitted.) Simply put, the issue of whether the defendant was on probation is generally not a matter of actual dispute, and under the broadly-stated rule of McGee, we conclude it was a determination which could properly be made by the court.
Castaneda’s criminal history includes much more than the three priors specifically alleged and relied upon as enhancements. Thus, the court’s reliance on that factor as a basis for imposing the upper term does not violate section 1170, subdivision (b)’s prohibition against double punishment: “The court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.”
Finally, as our Supreme Court has most recently concluded in Black II,the existence of even one aggravating factor, properly found in accordance with Cunningham, is sufficient to make a defendant constitutionally eligible for an upper term sentence. In such a case, the court may then rely upon other factors not determined in accordance with Cunningham, in its exercise of sentencing discretion. Thus, in a case such as this, where the court’s upper term decision was based on at least one proper factor, the decision will be upheld on appeal against a Cunningham challenge. (Black II, supra, 41 Cal.4th 799, 813-815.)
The judgment is affirmed.
WE CONCUR: ARONSON, J., FYBEL, J.