Opinion
NOT TO BE PUBLISHED
APPEALS from a judgment of the Superior Court of Riverside County, No. SWF015130, Rodney L. Walker, Judge. Affirmed in part and reversed in part.
HUFFMAN, Acting P. J.
After a second trial, a jury convicted Charles Earnest Cleek III (Cleek) of assault with a deadly weapon, a metal pipe (Pen. Code, § 245, subd. (a)(1); count 2) and petty theft, a lesser included offense of a charged robbery (§§ 484/488; count 3). With regard to the count 2 assault charge, the jury also found true the allegation that Cleek had personally inflicted great bodily injury upon his victim in the commission of that crime (§§ 1192.7, subd. (c)(8), 12022.7, subd. (a)). In a bifurcated proceeding, the trial court found true allegations that Cleek had suffered a serious prior felony conviction (§ 667, subd. (a)(1)) which also constituted a prior strike conviction (§§ 667, subds. (c) & (e), 1170.12, subd. (c)(1)), and that he had also served two prior prison terms (§ 667.5, subd. (b)). The court sentenced Cleek to a total prison term of nine years.
All statutory references are to the Penal Code unless otherwise specified.
Cleek's first trial ended in a mistrial. At the end of the second trial, the court granted Cleek's motion to acquit on the count 1 charged offense of battery with serious bodily injury (§ 243, subd. (d)) and its attendant enhancement allegation that Cleek had personally used a deadly weapon during the commission of that offense (§§ 1192.7, subd. (C)(23); 12022, subd. (b)(1)).
Both the People and Cleek appeal in this case. Cleek contends the trial court erred in instructing the jury with the "flight" instruction (CALJIC No. 2.52) and in imposing the upper term for his assault conviction in violation of Cunningham v. California (2007) 549 U.S. 270 (Cunningham) and the ban against ex post facto laws. The People assert the trial court imposed an unauthorized sentence by failing to impose the mandatory five-year enhancement for the serious prior conviction allegation found true under section 667, subdivision (a)(1). We affirm Cleek's convictions, but reverse his sentence as unauthorized and remand the matter for resentencing.
FACTUAL BACKGROUND
Cleek does not challenge the sufficiency of the evidence which shows that on October 16, 2005, he and his friend Brenda Hall went looking for another friend of Hall's named David Vasquez, who had borrowed Hall's bicycle and had not returned it. When they found him, Hall agreed to let Vasquez retain possession of the bicycle for one more day. During the conversation, however, Cleek and Vasquez, who were merely acquaintances, argued. Eventually Hall and Cleek left Vasquez and Hall returned to her home.
At around 9:00 p.m. that night, Vasquez rode Hall's bicycle to a bar in Hemet, California called the O.K. Corral. While Vasquez was seated in the bar, Cleek opened the door and called for him to come outside. As Vasquez reached the door, it slammed in his face. When he then opened the door, he was struck in the head and flew backward, hitting the door lock casing and falling to the ground, facing the street. Although Vasquez, who did not lose consciousness from the blow to his head, did not see who had hit him, from where he laid on the ground hurt he saw Cleek running away from the bar, motioning with something in his hand.
When the authorities arrived they found Vasquez on the ground "in great pain" with an open gash on his head that was "bleeding pretty bad[ly]." As he was being rolled to the ambulance on a stretcher, Vasquez saw that Hall's bicycle was gone from the spot where he had left it. Vasquez was transported to a hospital where 10 metal sutures were used to close the gash on his head.
During the investigation of the incident, a man and a woman who had been sitting in the bar with their backs to the door at that time related what they had seen and heard. After hearing a noise and turning to see Vasquez falling to the ground near the door, the woman approached him to see if he was alright. As she did so, she noticed Vasquez was bleeding from a wound to his head, and another person who was wearing a hooded sweatshirt, was standing outside nearby the doorway. After the man in the bar heard a "thumping sound," he turned to see Vasquez on the ground and also saw a person outside the bar wearing a hooded sweatshirt. The man also heard the other person yelling, "Don't be a thief." Neither the man nor the woman could identify Cleek as the hooded person outside the bar that night. The woman, however, when shown a photo lineup by the police, had picked out Cleek's photo as one of two possible suspects.
The next day, Cleek telephoned Hall to tell her he had her bicycle. When Hall asked him about Vasquez, Cleek told her she would not be seeing him again because he was dead. When Cleek later returned the bicycle to Hall, he told her he had been at a bar with Vasquez, he had hit him in the head with a pipe, and Vasquez had fallen to the ground. He again said Vasquez was dead and Hall would not see him anymore. Cleek told Hall he had intended to kill Vasquez when he hit him with the pipe. He also told her that after hitting Vasquez, he had grabbed Hall's bicycle and had moved to an area where he was able to watch as the ambulance arrived and took Vasquez away. Cleek told Hall he had hit Vasquez because Vasquez had told him that Hall liked him better than she liked Cleek.
DISCUSSION
I
CALJIC NO. 2.52 (FLIGHT)
During jury instruction discussions, when the prosecutor asked the court to give the flight instruction under CALJIC No. 2.52, Cleek's counsel commented that the problem in this case was that the victim made it sound as if Cleek did not stick around for the police to get there and if Cleek were not involved "then he couldn't have fled the scene anyway. But, then, secondly, it sounds like [Cleek's] hiding out somewhere to avoid detection. So, I think it's a catch-22 instruction. I think it softens the [prosecution's] burden to the jury that almost everybody is going to be captured by this flight instruction, because -- let's assume, for example, that this defendant did not commit the crime, but he wasn't there when the police got there, so, therefore, he fled. It's catch-22. He's stuck."
The court disagreed that the instruction lessened the prosecution's burden of proof, stating "the instruction is a little more magnanimous than that. Doesn't say 'if he fled, he's guilty,' doesn't necessarily mean anything." Over defense counsel's strenuous objection, the court ruled CALJIC No. 2.52 would be given.
Subsequently, after closing arguments were presented, the court instructed the jury under CALJIC No. 2.52 as follows:
"The flight of a person immediately after the commission of a crime or after he's accused of a crime is not sufficient by itself to establish guilt, but it is a fact which, if proved, may be considered by you in the light of all of the other proved facts in determining whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide."
On appeal, Cleek contends the trial court prejudicially erred in giving the jury this standard instruction on flight because "[t]he evidence in this case conflicts as to whether there even was a 'flight' by [Cleek] and also as to the identity of the assailant." Although acknowledging that the California Supreme Court has generally upheld the giving of a flight instruction if warranted by the evidence (see People v. Mendoza (2000) 24 Cal.4th 130, 179-181 (Mendoza)), Cleek specifically argues that the flight instruction given here "improperly focused the jury's attention on this alleged evidence of 'flight'... [and] also permitted the jury to make an inference supporting a finding of guilt which did not meet the constitutional threshold of 'more likely than not.'" Because of this purported "unjustified inference," Cleek asserts the given flight instruction lessened the prosecution's burden of proof and was, therefore, a violation of both his state and federal due process rights. We disagree.
Because section 1127c requires an instruction to the jury when there is evidence of flight, cases have generally held that a flight instruction "is properly given if the jury could reasonably infer that the defendant's flight reflected consciousness of guilt, and flight requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested." (People v. Crandell (1988) 46 Cal.3d 833, 869, overruled on another point in People v. Crayton (2002) 28 Cal.4th 346, 364-365.) Although "[m]ere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations],... the circumstances of departure from the crime scene may sometimes do so." (People v. Turner (1990) 50 Cal.3d 668, 695.)
Section 1127c provides: "In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows: [¶] The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine. [¶] No further instruction on the subject of flight need be given."
Further, even where the identity of the perpetrator is at issue, "[i]f there is evidence identifying the person who fled as the defendant, and if such evidence 'is relied upon as tending to show guilt,' then it is proper to instruct on flight. [Citation.] 'The jury must know that it is entitled to infer consciousness of guilt from flight and that flight, alone, is not sufficient to establish guilt. [Citation.] The jury's need to know these things does not change just because identity is also an issue. Instead, such a case [only] requires the jury to proceed logically by deciding first whether the [person who fled] was the defendant and then, if the answer is affirmative, how much weight to accord to flight in resolving the other issues bearing on guilt. The jury needs the instruction for the second step.' [Citation.]" (People v. Mason (1991) 52 Cal.3d 909, 943 (Mason), fn. omitted.)
Here, although there were several witnesses from the bar who could not identify Cleek as the assailant who had hit Vasquez over the head or the man they saw outside the bar after the attack, he was positively identified by Vasquez as the person who yelled to him to come outside the bar and as the person Vasquez saw running away from the bar after he was struck. Cleek's own statements to Hall the next day identified himself as the person who was standing outside and away from the bar at the time the authorities arrived to attend to Vasquez and investigate the crime. A jury could reasonably infer from the circumstances of Cleek's departure from the bar that he was trying to avoid detection and arrest. Because the prosecution relied upon this evidence as showing Cleek's identity and tending to show his guilt, it was sufficient to satisfy the requirements of Mason. (Mason, supra, 52 Cal.3d at p. 943.)
Moreover, contrary to Cleek's arguments otherwise, a flight instruction in a case like this does not lower the prosecution's burden of proof by only pointing to guilt. As our Supreme Court noted in People v. Barnett (1998) 17 Cal.4th 1044, a flight instruction identical in all material respects to the one used in this case, "adequately conveyed the concept that if flight was found, the jury was permitted to consider alternative explanations for that flight other than defendant's consciousness of guilt." (Id. at pp 1152-1153; see also People v. Bradford (1997) 14 Cal.4th 1005, 1054-1055.) In addition, our Supreme Court in Mendoza, supra, 24 Cal.4th 130, rejected due process arguments similar to those raised by Cleek as well as arguments that a flight instruction is an improper pinpoint instruction, noting such an instruction "informs the jury that it may consider flight in connection with all other proven facts, giving the fact of flight the weight the jury deems appropriate. [Citation.] The instruction is not argumentative; it does not impermissibly direct the jury to make only one inference." (Id. at pp. 180-181.)
In sum, the trial court properly instructed on flight in this case.
II
UNAUTHORIZED SENTENCE
At sentencing, before addressing Cleek's motion to strike the prior conviction finding, the court expressed its understanding of the sentencing parameters, first noting Cleek was facing, among other things, an additional possible term for the great bodily injury finding, and then, with the assistance of the prosecutor, correcting that understanding to note a possible one year for the section 12022, subdivision (b)(1) personal use of a weapon finding.
Then during the lengthy argument on the motion to strike, Cleek's counsel in downplaying Cleek's criminal past and his current offenses, also mentioned that the jury had only found Cleek guilty in this case of petty theft and the assault charge with the use of a dangerous or deadly weapon. After hearing further argument, the court extensively reviewed Cleek's criminal history and the facts of the instant crime and denied the motion to strike.
Turning to the current crimes, the court designated the count 2 aggravated assault as the "primary offense" and imposed an upper term of four years, finding it was "no longer bound by the factors in aggravation, mitigation after the Cunningham[, supra, 549 U.S. 270] decision and our legislature's response to it by enacting new rules; the new rules, of course, require the Court to consider the factors in aggravation or mitigation, but at the same time the new statute allows the Court to sentence within the range according to its sound discretion." The court then doubled the four-year term under the strikes law and added one year for use of the pipe, or deadly weapon, which Cleek had used during the assault, for a total term of nine years in prison.
After hearing further argument on whether the additional punishment for Cleek's two prison priors should be imposed, the court struck the enhancements for each to impose a "just sentence here...." When, after calculating Cleek's credits and imposing restitution and parole revocation fines, the court asked if there were anything else, the court clerk noted that "there's also a [section] 667[, subdivision] (a) prior." When the court responded that "we're not gonna impose anything for that" the clerk said, "Okay. Nothing for that." Finally, on the count 3 charge, the court noted it was a misdemeanor and that Cleek would be given credit for time served.
Both Cleek and the People have appealed from the sentence imposed in this case. In his reply brief, Cleek essentially concedes that the People are correct that the court imposed an unauthorized sentence by declining to impose the mandatory five-year enhancement for the section 667, subdivision (a)(1) prior serious felony conviction which it found true. However, relying on People v. Mustafaa (1994) 22 Cal.App.4th 1305 (Mustafaa), People v. Dominguez (1995) 38 Cal.App.4th 410 (Dominguez) and People v. Torres (2008) 163 Cal.App.4th 1420 (Torres), Cleek asserts that the trial court must be instructed to reconsider on remand the entire sentence and to impose a legal aggregate sentence of not more than the nine years originally imposed to comply with due process and the double jeopardy clause. The People merely state that the matter must be remanded to the trial court with directions to impose the five-year term mandated by section 667, subdivision (a).
As to his own appeal, Cleek appears to only claim that his upper term sentence for his assault conviction is in violation of Cunningham, supra, 549 U.S. 270 and ex post facto laws to preserve the issue for later federal review. In doing so, he specifically recognizes that the California Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825, 857 (Sandoval) has in essence rejected his argument that the court in sentencing him under the new legislative rules of section 1170, amended after the date of his crime, violated ex post facto laws, and that we are bound to follow Sandoval under Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 455 (Auto Equity Sales).)
Cleek further acknowledges that our high court in People v. Black (2007) 41 Cal.4th 799, 819-820 (Black) held that the factor in aggravation that a defendant had suffered numerous prior convictions of increasing seriousness as an adult, which is applicable to him, supported an upper term without the need of a jury trial. "Based on Black and on the doctrine of stare decisis, [Cleek concedes] the trial court [here] was required to rule as it did, and this Court is required to uphold the trial court's action. [Citation.]" Nonetheless, Cleek contends both Black and Sandoval were incorrectly decided, states he is merely raising these issues for later review, and asks us in the meantime to modify his sentence to impose a three-year middle term for his assault conviction, which doubled would amount to a six-year term plus the one-year enhancement for a total of seven years. We decline to do so.
Nor, in light of Cleek's above concessions regarding the upper term, need we directly reach the merits of his Cunningham issues. Because we agree the matter must be remanded for resentencing due to the trial court imposing an unauthorized sentence, such issues may become moot when the court fashions a legally authorized aggregate sentence. We thus only address such issues in relation to our discussion regarding the scope of the resentencing for guidance of the trial court on remand.
As the parties agree, and we concur, the trial court imposed an unauthorized sentence when it failed to impose the mandatory five-year enhancement for the serious felony prior it had found true. The record also reflects that the court imposed an illegal term for the count 2 enhancement which the jury found true, which was for section 12022.7, subdivision (a), that Cleek had "personally inflict[ed] great bodily injury upon the person of [Vasquez], not an accomplice to the offense...." It appears that the probation report, which was considered by the parties and the court before sentencing, although initially recognizing that the jury had made a true finding on the great bodily injury allegation, recommended in its final calculation that Cleek should get one year for the use of a deadly weapon under section 12022, subdivision (b)(1). The deadly weapon enhancement in this case, however, was attendant to the count 1 charge of battery with serious bodily injury, which was dismissed by the court upon a defense motion at the close of all evidence. When the court referred to the enhancement it would be imposing sentence on as the one for great bodily injury, the prosecutor corrected the court, apparently due to the probation report's final recommendation, to impose the enhancement under section 12022, subdivision (b)(1). Regardless of fault, however, the matter must be corrected on remand. Thus, in addition to the court having to impose the mandatory five-year enhancement under section 667, subdivision (a)(1), it must also exercise its discretion to impose or strike the three-year section 12022.7, subdivision (a) enhancement to count 2 for which the jury made its true finding. (See §§ 1170.1, subd. (d), 1385, subds. (a), (c).)
We find it curious that Cleek's trial counsel did not also motion the court to dismiss the great bodily injury enhancement allegation attendant to count 2 when the court granted his motion to dismiss the count 1 battery with serious bodily injury for insufficient evidence of serious bodily injury.
Although we agree with Cleek that the resentencing cannot be limited to just these unauthorized portions (see Dominguez, supra, 38 Cal.App.4th at p. 426), we do not agree that the court is required in this case to impose upon remand a total sentence no greater than the original aggregate term of nine years. We explain.
With regard to unauthorized sentences, the rule against imposition of a harsher sentence on remand for resentencing due to double jeopardy concerns generally does not apply where the original sentence is unauthorized. (See People v. Serrato (1973) 9 Cal.3d 753, 764-765 (Serrato), disapproved on other grounds in People v. Fosselman (1983) 33 Cal.3d 572, 583, fn. 1; People v. Hill (1986) 185 Cal.App.3d 831 (Hill).) In upholding the imposition of a corrected sentence that was longer than the one originally illegally imposed, the court in Hill, supra, 185 Cal.App.3d 831stated that "[w]hen a case is remanded for resentencing by an appellate court, the trial court is entitled to consider the entire sentencing scheme. Not limited merely to striking illegal portions, the trial court may reconsider all sentencing choices. [Citations.] This rule is justified because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components. The invalidity of one component infects the entire scheme. [Citation.]... The trial court is entitled to rethink the entire sentence to achieve its original and presumably unchanged goal.... [¶]... [A defendant] is not entitled to... keep favorable aspects of the first sentence and to eliminate unfavorable aspects." (Id. at pp. 834-835.)
This rule has been clarified more recently in Torres, supra, 163 Cal.App.4th 1420, where the court distinguished between cases where the original sentence showed a "legally unauthorized leniency that resulted in an aggregate sentence that fell below that authorized by law" (id. at p. 1432), and those cases like Mustafaa, supra, 22 Cal.App.4th 1305, where the court had imposed "a legal aggregate sentence, only fashioning it in an unauthorized manner." (Id. at pp. 1311-1312.)
Here, unlike in Torres and Mustafaa, which are relied upon by Cleek, the original sentence imposed was not a legally aggregate one. By declining to strike the strike and in finding an upper term proper for count 2, even if the trial court had exercised its discretion to strike the great bodily injury enhancement for count 2, its failure to impose the mandatory five-year serious felony enhancement resulted in a "legally unauthorized leniency" which brought Cleek's sentence under Serrato's exception to the double jeopardy prohibition on imposing a longer sentence on remand following appeal. We, therefore, vacate Cleek's sentence and remand the matter for resentencing without limitations.
On remand, the trial court "must arrive at its sentencing decision utilizing the correct law and considering all of the factors necessary to make that decision...." (Torres, supra, 163 Cal.App.4th at p. 1433.) Although Cleek has not challenged the court's exercise of discretion in denying his motion to strike his strike prior for sentencing purposes, the court will be able to reconsider that motion on remand as there is no indication in the record how the trial court would have exercised its overall discretion regarding the motion and the total sentence had it been aware it was required to impose five years for the serious felony prior and possibly impose three years for the great bodily enhancement. In exercising its discretion in resentencing on the count 2 assault with a deadly weapon, the trial court may again impose an upper term should it choose to do so under the amended section 1170 (see Sandoval, supra, 41 Cal.4th at p. 845; People v. Wilson (2008) 164 Cal.App.4th 988, 990-992) or by relying on Cleek's numerous prior felony convictions of increasing seriousness as an adult without violating Cunningham (see Black, supra, 41 Cal.4th at pp. 818-820). Even though the court is not limited in this case from imposing a sentence greater than the nine years originally imposed, it is not precluded from imposing the same or a lesser length sentence in the legal exercise of its discretion.
DISPOSITION
The sentence is vacated and the matter is remanded to the Superior Court for resentencing in accordance with this opinion. In all other respects, the judgment is affirmed.
WE CONCUR: HALLER, J. AARON, J.