Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
Superior Court County of Santa Barbara No. 1143287 James F. Rigali, Judge
Lisa M. J. Spillman, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Linda C. Johnson, Supervising Deputy Attorney General, Chung L. Mar, Lisa J. Brault, Gary Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
COFFEE, J.
Gary Chester Ervin appeals from the judgment entered after a jury found him guilty of stalking; stalking in violation of a court order; assault upon a former spouse; two counts of first degree burglary; two counts of assault with force likely to produce great bodily injury; three counts of criminal threats; dissuading a witness; dissuading a witness by force or threat; five counts of disobeying a domestic violence protective order; vandalism; unlawfully carrying a loaded firearm; and resisting arrest. (Pen Code, §§ 646.9, subds. (a) & (b); 240; 242; 243, subd. (e)(1); 459; 245, subd. (a)(1); 422; 136.1, subds. (a)(1) & (c)(1); 273.6, subd. (a); 594, subd. (b)(2)(A); 12031, subd. (a)(1); 148, subd. (a)(1).) The trial court sentenced him to state prison for 16 years. He claims that the court erred by failing to conduct a Marsden inquiry (People v. Marsden (1970) 2 Cal.3d 118); that prosecution misconduct and a related instructional error compel the reversal of his conviction of unlawfully carrying a loaded firearm; and that the court imposed the upper term sentence for counts 4, 5 and 9 based upon factors not found by a jury, in violation of the Cunningham rule. (Cunningham v. California (Jan. 22, 2007, No. 05-6551) 549 U.S. __ [2007 WL 135687]; U.S. Const., 6th Amend.) We affirm.
All statutory references are to the Penal Code.
BACKGROUND
Appellant and Maria Ervin lived together for many years, had two children together and married in 1992. When they divorced in 1997, the court awarded Maria sole custody of the children and issued temporary restraining orders (TRO's) against appellant. Maria moved from Riverside to Arroyo Grande after the divorce, and later moved to Santa Maria.
Despite the divorce, in late 2001, Maria permitted appellant to move into her home. She felt sorry for him and hoped he would build a relationship with their children. In October 2002, Maria obtained a TRO against appellant, but it was never served upon him. Appellant moved out of her home, but returned in February 2003, with Maria's permission, and lived there until about June 2003.
Maria started dating Joshua Cruz, a coworker, in August 2003. Sometime in August or September, appellant told her that he "would do what he would have to do" if Cruz were at her home. In September 2003, Maria obtained another TRO against appellant. Appellant threatened and assaulted the man who served him with the TRO on September 25.
On October 11, 2003, Maria was in her bedroom with Cruz, around midnight, when appellant crashed through the locked bedroom door, moved toward Cruz, and said, "You're a dead man, mother fucker." She tried to intercede, but appellant struck or pushed her, with enough force to smash her face and nose into the wall. He punched Cruz in the head with a closed fist several times, punched his arms repeatedly, and grabbed his throat, squeezing and choking him. Appellant and Maria's teenage son entered the room, told appellant to leave, and said that he had hurt Maria and she was "bleeding everywhere." Their young daughter also entered the room. After their son pulled appellant from Cruz, appellant left.
Maria called the police, who arrived at her home some time after midnight on October 11. After speaking with the police, Maria and Cruz went to the hospital. They returned home around 2:00 or 3:00 a.m. and found several threatening messages from appellant on the answering machine. Appellant telephoned after their return and made several threatening comments to Cruz and Maria. During the day on October 11, a neighbor found a bullet on Maria's driveway. Appellant, an avid hunter, had taken their son's rifle when he moved from Maria's home.
In the morning, on October 30, 2003, Maria was home with her son, her daughter and Cruz. Cruz slept soundly on the family room daybed, until approximately 5:00 a.m., when appellant repeatedly punched his face. Cruz ran into Maria's room, told her that appellant was there and would kill him, and that she should call the police. Appellant fled before Maria saw him. He left a police scanner at her home.
On November 1, 2003, Arroyo Grande Police Officer Shane Day activated the red lights on his patrol vehicle to stop a speeding Jeep. The Jeep sped through a stop sign before it finally stopped. Appellant fled from the Jeep and avoided the police. They found a rifle, ammunition, bolt cutters, and other items in the Jeep. The next day, appellant called Maria and asked her to get his Jeep from impound.
In the evening, on November 11, 2003, Maria and her children returned from a trip and found that in their absence items in their home had been eaten, moved, removed or changed. Later that night, appellant was in Maria's driveway asking about his police scanner.
Appellant made threatening telephone calls to Cruz and Maria from August 2003 through mid-February 2004. He telephoned Cruz at his home and at Maria's home, and made a variety of threats (e.g., he would blow off Cruz's head, "introduce [him] to the Lord," cut him up, etc.). He also told Cruz to "[w]atch [his] piece of shit car." Cruz's tires were slashed on several occasions between October 2003 and February 2004 while he visited Maria's home. Appellant often telephoned Maria to threaten her and call her vulgar names. During one call, he said that he would "be seeing his maker soon," that he would take Maria and Cruz with him, and that he would never leave her alone.
On February 17, 2004, Santa Maria Police Officer Francisco Javier Velazquez tried to stop a Ford Bronco for a traffic violation. Appellant fled, after stopping the Bronco. Velazquez looked in the Bronco as he chased appellant but saw nobody else inside. When another officer started chasing appellant, Velazquez searched the Bronco and found a loaded .32 caliber semi-automatic handgun, a box of ammunition, a holster, and other items under the front passenger seat. The other officer located and arrested appellant, and advised him of his rights and the charges against him. Appellant denied that he had been driving the Bronco, and said that there was not a loaded gun in the Bronco, and that he could not carry a weapon because of a restraining order.
DISCUSSION
I
Appellant first argues that the trial court erred by failing to conduct a hearing pursuant to People v. Marsden, supra, 2 Cal.3d 118. We disagree.
In 2004, retained counsel represented appellant. After conducting a closed hearing on October 6, 2004, the court granted retained counsel's motion to withdraw and appointed the public defender to represent appellant. On August 18, 2005, appellant filed a Marsden motion. The court denied the motion the same day, during a closed session. Appellant's jury trial was set for August 23, 2005.
On the morning of trial, counsel informed the court that appellant wished to represent himself. (Faretta v. California (1975) 422 U.S. 806 (Faretta).) The court provided appellant with a Faretta waiver form. After reading the form, appellant requested "an extension to make a decision." The court denied his request and said, "The only issue . . . is whether or not you are going to be your own lawyer . . . ." Appellant then asked, "[I]f I . . . represent myself . . ., then later can I hire another lawyer?" The court responded, "No." Appellant again requested an extension. When the court declined that request, appellant claimed that he "[did not] even have clothes." The court disagreed. Appellant complained that the clothes did not fit, and stated: "I'm in such a way with my lawyer right now that he didn't even make arrangements with friends and family to get a suit for me. There's other evidence that came up that I gave him yesterday . . . . I wanted to put it in with that Marsden. It was about the investigation and some of the evidence that was being used on the phone, and it was related to one of the prosecution's witnesses."
The court then stated, "Mr. Ervin, you're confusing issues. Your Marsden hearing was the other day. It's not right now. Your Marsden hearing, if you have one today, it's denied. . . . [T]he only question right now is whether or not you want to be your own lawyer or not." At that point, appellant twice inquired whether he would have to start trial "today" if he represented himself, adding, "Without proper representation or nothing?" to his second inquiry. The court responded "yes" to each inquiry, and appellant said he would keep the public defender "at this point."
The court then asked if appellant wished to go downstairs to "dress in some civilian clothes before [he saw] the jury." Appellant asked if there was "anything that would fit" him. The court indicated it would go to the mall if necessary, but that it did not think that was the issue. Appellant responded that the issue was "the whole issue[] like we talked about, the Marsden." The court indicated that they were no longer discussing Marsden or Faretta and urged appellant to get ready in 10 minutes and behave appropriately so that he could remain in the courtroom, instead of an adjacent room, during trial.
The trial court must inquire pursuant to People v. Marsden, supra, 2 Cal.3d 118, if a defendant asserts directly or indirectly that his counsel's performance is inadequate and denies him the constitutional right to effective counsel. (People v. Lara (2001) 86 Cal.App.4th 139, 151; see also People v. Leonard (2000) 78 Cal.App.4th 776, 787.) Appellant claims that he asserted that counsel's performance was constitutionally inadequate by indicating that he was "in such a way with [his] lawyer" that the lawyer did not make arrangements to get a suit for trial; that he had given his counsel "new" information yesterday that he wanted to put in "with that Marsden;" and that the new information was about the investigation, phone evidence, and prosecution witnesses. The record indicates otherwise.
On August 23, when his counsel advised the court that appellant wished to represent himself, appellant neither disagreed nor expressed a desire to renew his Marsden motion, nor complained about counsel. His failure to do so at that point is significant. A few days earlier, he had filed a written Marsden motion, which was 11 pages long. When the court provided him a Faretta form, appellant also failed to claim that he had given counsel evidence on August 22. He made that claim only after the court denied his repeated attempts to delay trial by requesting continuances or by claiming that he lacked appropriate clothing for trial. Even then, he did not claim that such evidence was new. Rather, he said, "There's other evidence that came up that I gave him yesterday . . . . I wanted to put it in with that Marsden. It was about the investigation and . . . was related to one of the prosecution's witnesses."
Appellant's statements did not convey directly or by implication that his counsel's performance had been so inadequate as to deny him the constitutional right to effective counsel. (See People v. Lara, supra, 86 Cal.App.4th 139, 150-151.) On this record, we cannot say that the court had a duty to conduct a Marsden inquiry on the nature of his complaints. (See People v. Leonard, supra, 78 Cal.App.4th 776, 787.)
II
We also reject the contention that part of the prosecutor's rebuttal argument violated appellant's right against self-incrimination. (U.S. Const., 5th Amend.; Griffin v. California (1965) 380 U.S. 609.) The challenged comments concerned count 19, which charged appellant with unlawfully carrying a loaded firearm. During his argument, appellant's counsel made the following statements:
"[A]s to the Bronco and the gun, what do we have? [Appellant] ran from the [Bronco]. It was owned by somebody other than [appellant]. And the gun was found underneath the passenger seat. [¶] Do we know whether or not [appellant] was in possession of the gun? . . . We don't have any specific evidence that he knew the gun was under the seat. Do we know whether he put it there or not? No. . . . Do we know whether or not there was somebody else in the vehicle? On the one hand, someone can indicate, well, that's speculation. . . . [I]t's speculation how the gun got there. [¶] You need to make reasonable inferences based on the evidence you have before you as jurors. [¶] You know there was a gun. You know it was under the seat. You know [appellant] was driving. . . . You know it's possible someone else could have been driving. You know [he] previously had access to the gun . . . . Do we know if he gave it back to someone else? No. Do we know whether someone else left with the keys? Well, maybe. The [police report does not state] whether . . . the keys were in the car . . . or . . . on [appellant] at the time of his arrest. We just do not know. Classic reasonable doubt. It could have happened that way or the other way. We're not sure based on the evidence put before you."
The prosecutor made the following argument in rebuttal: "As far as carrying-the-loaded-gun-in-the-car charge, there is no reasonable doubt that [appellant] . . . had that gun there. Judy Baker gave him the gun. He was the only one in the car. . . . [¶] [She said that she] gave him the gun, and [when he was arrested, appellant tried] to say that he didn't have that loaded gun. 'I wasn't even driving,' he says. 'There was someone else in the car.' [¶] [Appellant] would know who else was in the car. And defense counsel has the same subpoena power I do. If they had a witness who would come and say they were in the car, they would be here. They would be in here."
Appellant objected that the prosecution's comments shifted the burden of proof and improperly commented upon his failure to testify. (See Griffin v. California, supra, 380 U.S. 609, 615.) The court deferred ruling on the objection and the prosecutor resumed rebuttal. The next day, after considering briefing and argument, the court overruled appellant's objection and concluded that there was no Griffin error. Appellant maintains that the prosecutor made an improper comment on his decision not to testify in his own defense, in violation of Griffin and People v. Medina (1995) 11 Cal.4th 694, 755.
While it is error for a prosecutor to comment directly or indirectly upon a defendant's failure to testify in his own defense (Griffin v. California, supra, 380 U.S. 609, 615; People v. Medina, supra, 11 Cal.4th 694, 755), this rule does not preclude comments on the state of the evidence, or on the defendant's failure to introduce material evidence or call logical witnesses. (People v. Bradford (1997) 15 Cal.4th 1229, 1339; Medina, at p. 755; see also People v. Bruce G. (2002) 97 Cal.App.4th 1233, 1244.) Such comment is improper only if the defendant alone could have given such evidence. (Bruce G., at p. 1244.) In this case, the prosecutor's argument constituted permissible comment on appellant's failure to introduce material evidence or call logical witnesses. (Bradford, at p. 1339; Medina, at p. 755; Bruce G., at pp. 1244-1245.)
III
Following the court's determination that there was no Griffin error, defense counsel and the prosecutor requested a curative instruction. The court addressed the jury regarding the objection the following day. Appellant claims that, in doing so, the court improperly instructed the jury that CALJIC Nos. 2.60 and 2.61 did not apply to count 19.
Addressing the jury, the court referred to appellant's objection after the prosecutor had said that "defense counsel has the same subpoena power I do"; and that if defense counsel "had a witness who would come and say they were in the car, they would be here." The court stated that it was overruling the objection "as it relates to count 19," and continued: "Now, this is a multi-count case and I'm reminding you that you will have all these jury instructions with you. But specifically as it relates to all of the counts, and my ruling was just as to count 19, but you need to understand that these two jury instructions apply to all of the other counts. [¶] 2.60; the defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify. Further, you must neither discuss this matter, nor permit it to enter into your deliberations in any way. [¶] [2.61] In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him. No lack of testimony on the defendant's part will make up for a failure of proof by the People so as to support a finding against him on any essential element. [¶] In lay terms, on count 19 [defense counsel] argued that there might have been somebody else in the car. Maybe there was. Maybe there wasn't. [The prosecutor] argued that if there was, perhaps a subpoena would have brought that person to trial. As it relates to that count, with the exception of that ruling that the court has made related to that evidence and all of the other counts, you must follow these jury instructions and you must understand and review them if you need to. You have your jury notebooks with you. 2.60 and 2.61 are the numbers on top of those jury instructions."
Appellant contends that the court's comments instructed the jury that CALJIC Nos. 2.60 and 2.61 did not apply to the count 19 charge of unlawfully carrying a loaded firearm. Respondent argues that appellant waived this issue by failing to object to the court's comments concerning CALJIC Nos. 2.60 and 2.61. Respondent further argues that the court ultimately "advised the jury to consider CALJIC Nos. 2.60 and 2.61 as to all counts." Respondent so argues because the court stated that "[a]s it relates to that count [19], with the exception of that ruling that the court has made related to that evidence and all of the other counts, you must follow these jury instructions [CALJIC Nos. 2.60 and 2.61]." Respondent also stresses that the jury had written forms of each instruction available that contained no "reference that . . . [they] did not apply to count 19."
The jurors may have interpreted the court's confusing comments to mean that CALJIC Nos. 2.60 and 2.61 did not apply to the count 19 carrying a loaded firearm charge. The error, if any, is not reversible, regardless of the applicable standard of review. Velazquez saw appellant and no other person in or near the Bronco. The loaded gun was in the Bronco. Just after his arrest, appellant denied that he had been driving the Bronco, said that there was not a loaded gun in it, and that he could not carry a weapon. Baker loaned the gun to appellant. Appellant did not return it. When Baker asked him whether he had the gun when he was arrested, appellant responded, "Yeah." With that evidence, no juror would reasonably doubt that appellant carried the loaded gun, whether or not they understood that CALJIC Nos. 2.60 and 2.61 applied to count 19. The jury was instructed concerning its obligation to consider each instruction as part of a whole and in light of the others, and it received proper instructions on the presumption of innocence, reasonable doubt and burden of proof. Thus, the error, if any, concerning CALJIC Nos. 2.60 and 2.61 and count 19, was harmless beyond a reasonable doubt (Chapman v. California (1967) 386 U.S. 18, 24) and there is no reasonable probability that a result more favorable to appellant would have resulted without the error (People v. Watson (1956) 46 Cal.2d 818, 836).
IV
In Cunningham v. California, supra, 549 U.S. __ [2007 WL 135687], the Supreme Court held that a court may not impose an upper term sentence based upon aggravating sentencing circumstances (except a prior conviction) other than those found by the jury or admitted by the defendant. Appellant contends that the trial court imposed the upper term sentence for counts 4, 5 and 9 based upon circumstances not found by a jury in violation of the Cunningham rule.
"Under California's determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely [v. Washington (2004) 542 U.S. 296], the defendant is not 'legally entitled' to the middle term sentence, and the upper term sentence is the 'statutory maximum.'" (People v. Black (2007) 41 Cal.4th 799, 813 (Black).) Thus, "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; see also id. at pp. 812, 816-817.)
Cunningham error is subject to the harmless error test prescribed for federal constitutional error--whether the error was harmless beyond a reasonable doubt. (People v. Sandoval (2007) 41 Cal.4th 825.) "[If this] court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless." (Id. at p. 839.)
Appellant nonetheless asserts that we cannot make this determination in his case because the court below found a circumstance in mitigation--that his prior criminal record was not significant. He stresses that in Black there was no mitigating circumstance for the reviewing court to consider in evaluating whether the trial court's reliance on aggravating circumstances which were not found by a jury constituted harmless error. Here, because there is a mitigating circumstance, appellant argues that this court cannot know beyond a reasonable doubt that the trial court would have sentenced him to an upper term if it weighed "any constitutional aggravating factors against [the] mitigating factor[]," and that his case must be remanded for resentencing. We disagree. The trial court's comments during sentencing leave no doubt that it considered and weighed the impact of the one circumstance in mitigation before it selected the upper term sentence. It stated, "The circumstance in mitigation . . . is that you had no substantial prior record for your criminal conduct, at least convictions prior hereto have been insignificant. Unfortunately . . . everything that you have done trumps that . . . ."
We next consider the aggravating circumstances relied upon by the trial court to impose the upper term for each of counts 4 (first degree burglary), 5 and 9 (assault by means of force likely to produce great bodily injury on Cruz on two separate dates). As to counts 4 and 5, the court found that the offenses were committed in the presence of minors. The undisputed evidence supports that finding and it is inconceivable that any juror would reach a different finding.
As to counts 4, 5 and 9, the court found that the manner in which the crimes were carried out indicated planning, sophistication or professionalism. There can be no reasonable doubt that the jury would reach the same finding. Appellant committed those crimes as part of an ongoing scheme in which he stalked and threatened the victims, as the jury verdicts reflect. There is no doubt that he planned these crimes. Further, as the court noted, appellant carried a police scanner or radio "so [he] could elude the police." That evidence supported the court's finding that the crimes were carried out in a manner that indicated planning or sophistication.
We conclude "beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true" as to each of counts 4, 5 and 9, at least one "aggravating circumstance had it been submitted to the jury." (Sandoval, supra, 41 Cal.4th 825, 839.) Therefore, the imposition of an upper term based on aggravating circumstances which were not found by the jury or admitted by appellant was harmless error. (Ibid.)
Finally, appellant claims that under Cunningham, the imposition of consecutive sentences based on facts that were neither found by the jury nor admitted by him violated his Sixth Amendment right to a jury trial. Our state Supreme Court rejected an equivalent claim in Black, supra, 41 Cal.4th 799, 821-823. We must therefore reject this claim. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
The judgment is affirmed.
We concur: GILBERT, P.J., YEGAN, J.