Opinion
F059356 Stanislaus Sup. Ct. No. 1237477
11-02-2011
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH FERRIS, Defendant and Appellant.
Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. John D. Freeland, Judge.
Roberta Simon, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Julie A. Hokans, Deputy Attorneys General, for Plaintiff and Respondent.
STATEMENT OF THE CASE
On December 22, 2008, the Stanislaus County District Attorney filed an information in superior court charging appellant Joseph Ferris as follows:
Count 1 - attempted murder (Pen. Code, §§ 187, subd. (a), 664) with personal infliction of great bodily injury in circumstances involving domestic violence (§ 12022.7, subd. (e));
All further statutory references are to the Penal Code unless otherwise stated.
Count 2 - assault likely to produce great bodily injury (§ 245, subd. (a)(1)) with personal infliction of great bodily injury (§ 12022.7, subd. (a)) and personal infliction of great bodily injury in circumstances involving domestic violence (§ 12022.7, subd. (e));
Count 3 - threatening to commit a crime (§ 422);
Count 4 - attempt to prevent a witness/victim from causing the responsible assailant to be arrested (§ 136.1, subd. (b)(1));
Count 5 - inducing false testimony by force or threat (§ 137, subd. (b));
Count 6 - mayhem (§ 203).
On January 27, 2009, appellant was arraigned and pleaded not guilty to the substantive counts and denied the special allegations. On October 27, 2009, jury trial commenced.
On November 4, 2009, after the prosecution rested its case, the court denied appellant's motion for acquittal on count 1 (§ 1118.1).
On November 9, 2009, the jury returned verdicts finding appellant not guilty of counts 3 and 5, guilty of counts 2, 4, and 6, and guilty of attempted voluntary manslaughter, a lesser included offense of that charged in count 1. The jury found all of the special allegations to be true.
On December 8, 2009, the prosecution filed a sentencing statement urging imposition of a total state prison commitment of 12 years 10 months.
On December 11, 2009, appellant filed a motion for new trial (§§ 1179-1182) on the ground the evidence was insufficient to support the verdicts.
On the same date, appellant filed a statement in mitigation urging imposition of a total term of imprisonment of four years.
On December 17, 2009, the prosecution filed a supplemental sentencing statement and written opposition to the motion for new trial.
On December 21, 2009, the court denied the new trial motion, denied appellant probation, and sentenced him to a total term of 11 years 6 months in state prison. The court imposed the upper term of five years six months on count 1, a consecutive middle term of two years on count 4, and a consecutive term of four years on the great bodily injury allegation related to count 1. The court stayed sentence on counts 2 and 6 (§ 654) and awarded 733 days of custody credits. The court imposed an $8,000 restitution fine (§ 1202.4, subd. (b)), imposed and suspended a second such fine pending successful completion of parole (§ 1202.45), imposed a $120 court security fee (§ 1465.8), and a $120 criminal conviction assessment (Gov. Code, § 70373).
On January 21, 2010, appellant filed a timely notice of appeal.
We affirm.
STATEMENT OF FACTS
In August 2006, 35-year-old Kelly G. (Kelly) met appellant at his karate studio, where she arranged for her son to take lessons. In October or November of that same year, Kelly began an intimate relationship with appellant and they had a daughter together. By the time the daughter was born in September 2007, appellant and Kelly were no longer involved in a relationship. !(RT 71-73)! Kelly nevertheless took the baby to appellant's studio and home for visits. !(RT 73)!
The first amended criminal complaint filed November 28, 2007, and the information filed December 22, 2008, both refer to the victim as "Jane Doe." The reporter's transcript of the December 8-9, 2008, preliminary examination refers to the victim by name. For purposes of protective nondisclosure, we will initially refer to the victim by first name and last initial and then by her first name.
Kelly arranged to bring the baby to appellant's home on the morning of Monday, November 26, 2007, so that he could take the infant to Manteca to meet his family. Kelly drove to appellant's home, got the baby, formula, and diapers out of the car, and knocked on appellant's door. When appellant answered the door, Kelly handed him the baby and placed the supplies on a counter. Kelly explained the baby's eating habits and then checked her cell phone for the time. Appellant's roommate, Vince Tomasetti, was present and sitting on a couch during part of her conversation with appellant. As Kelly started toward the door, appellant asked her to give the baby a kiss. Kelly did so and then said she had to go. Appellant put the baby in a car seat he had on a couch in the dining room area. As Kelly started to leave, appellant asked her for a hug. Kelly said she did not want to hug him. When Kelly began to reach for the door, she felt something hit the back of her head and neck. Appellant swung Kelly around and punched her in the face. She fell backwards into the back of a couch. Kelly testified appellant "[g]rabbed me by my shirt and just kept punching me in the face. And he was screaming at me and punching me in the face. And then he put his hands around my neck and he strangled me." Kelly said appellant called her an "F'ing bitch."
After appellant struck and choked her, Kelly was on her back on the tile floor and appellant stood over her. Tomasetti stood next to appellant. Appellant told Kelly she was "going to die." He also said she was "really f***ing lucky to be alive right now." Appellant then stomped on Kelly's face, head, and body. When she rolled over to protect her stomach, appellant kicked her in the back. Appellant said his family had property in Marysville and that "nobody would ever find [Kelly]." According to Kelly, appellant spoke to Tomasetti about "some duct tape and some zip ties and plastic, and that's how they were going to get rid of [Kelly]." Appellant continued to stomp on Kelly and choked her with something other than his hands. Kelly did not know what appellant used to choke her but said it was so tight that she could not grab it, could not make a sound, and could not breathe.
After the choking, Kelly remembered being alone on the bed in appellant's bedroom. She tried to get up but fell to the ground. She started to crawl to the door, but appellant entered the bedroom and asked what she was doing. Kelly told appellant there was something "really wrong" and that her stomach hurt "really bad" each time she tried to take a breath. Appellant said he would not take Kelly to the hospital and further said he was not going to jail for her. Appellant also told Kelly, " 'I'm not going to do this to you anymore though,' " and added that he was going to shoot her. He exclaimed, " 'I told you that if you weren't going to love me, you weren't going to love anybody.' "
Appellant brought the baby from the other room, handed the baby to Kelly, and told her to kiss the infant goodbye. Kelly said she did not feel steady holding the baby and asked appellant to take the baby back to the other room. Appellant complied, returned to the bedroom, went to the closet, and pulled out a "zipper pouch." Appellant had previously told Kelly the pouch contained a firearm. Appellant unzipped the pouch and exposed a firearm. He placed the pouch on the dresser and left the room as Kelly pleaded for her life.
Appellant returned to the bedroom sometime later and said Tomasetti was going to drive Kelly's car to the alley behind appellant's karate studio. Appellant removed Kelly's bloodstained sweatshirt and replaced it with one of his sweatshirts. He wiped Kelly's face with a towel, helped her to her feet, and walked her outside to his Ford Expedition. Appellant placed Kelly and the baby in the Expedition and drove them to the alley behind his studio. Along the way, appellant told Kelly they would go to the hospital and tell medical personnel she had been attacked in the alley behind the studio. Appellant said he would advise hospital personnel he heard screaming, came outside, and saved Kelly.
The Expedition reached the alley and appellant met with Tomasetti. Tomasetti got out of Kelly's car and entered the expedition. Appellant told Tomasetti, "[S]he was attacked in the alleyway and when we heard screaming, we came and we got her." Tomasetti replied, "Okay." Appellant then drove the Expedition to Doctors Medical Center. Appellant expressed uncertainty about allowing Kelly to receive medical care because he was afraid she would implicate him. At some point, Kelly opened the door and fell out of the Expedition. Appellant immediately stopped the vehicle and either he or Tomasetti helped her enter the hospital.
Hospital staff initially treated Kelly in appellant's presence. He answered the questions posed by medical staff to Kelly, and Kelly indicated that appellant was answering truthfully. The trauma unit eventually arrived and indicated that Kelly could only have one person in the room with her. At that point, Kelly's father had arrived at the hospital and insisted that he be the individual to stay in the room with Kelly. When the trauma unit took Kelly through some double doors, she told her father, "Daddy, Joe did do it." Hospital staff members then called the police.
Kelly was hospitalized for five days. She sustained extensive injuries to her face and lips, a dent to the right side of her head, and nerve damage on the left side of her face. She said she experienced pain on her left shoulder, face and head, abdomen, knees, right ankle, and lower back.
Modesto Police Officer Jaime Cox departed the hospital, transported appellant to the county jail, and then went to appellant's karate studio. Cox saw Kelly's parked car in the alley behind the studio. At about 4:45 p.m., Cox interviewed Vince Tomasetti at the studio. Tomasetti initially told Officer Cox he had been at the karate studio all day and did not see anything. When Cox accused Tomasetti of lying and subjecting himself to a conspiracy charge, Tomasetti gave a different version of events. Tomasetti told Cox that appellant instructed him to take the baby to the back bedroom after Kelly arrived at appellant's home. Tomasetti told Officer Cox he heard appellant call Kelly names and also heard " 'some commotion' " like the sound of bodies being thrown around. Tomasetti saw appellant strike Kelly's face with his open hand when her back was against a couch. Tomasetti also said he saw appellant stomp on Kelly's abdomen.
Officer Cox spoke with Kelly on November 26, 2007, and Kelly indicated that appellant had assaulted her. Cox contacted appellant in the hospital waiting room and arrested him. Cox advised appellant of his Miranda rights, and appellant said he found Kelly in the alley behind his karate studio. Kelly's face was bloodied, and she allegedly told appellant that two men had robbed her in the alley.
Miranda v. Arizona (1966) 384 U.S. 436
Defense Evidence
Ramon Bermudez testified he, Kelly, and her son were fellow students at appellant's karate studio. Bermudez was aware that appellant and Kelly had a romantic relationship and that Kelly had become pregnant. Bermudez said he frequently saw Kelly at the studio. According to Bermudez, Kelly became "more distant" toward the appellant after the baby was born. Bermudez heard Kelly ask for money several times after the baby was born and saw appellant give her the money in response to her requests.
Soo Mouen testified that she and her two sons were also fellow students at appellant's karate studio. Mouen saw appellant and Kelly flirt and act affectionately toward one another. Mouen saw Kelly twice at the studio after the baby was born. On each occasion, Kelly left the baby with appellant and then departed the studio.
Mandy Sue Vega testified she was a student at appellant's studio from August to November 2007, and she saw Kelly drop the baby off at the studio on four or five occasions. On the first occasion, Kelly asked Vega whether she was in a relationship with appellant. On the second occasion, Vega heard appellant ask Kelly why she needed money. Vega saw appellant reach for his wallet after he asked Kelly the question.
Elana Brooks-Ferris testified she had known appellant for more than 20 years and married him on December 30, 2006. In 2005, appellant and Brooks-Ferris became co-owners of the karate studio and she was responsible for the business's billing and bookkeeping. Brooks-Ferris knew that Kelly and her son were students at the studio and learned that appellant and Kelly became romantically involved in October or November 2006. After appellant and Brooks-Ferris were married, she heard "talk" that Kelly was pregnant with appellant's child. Brooks-Ferris said she had never known appellant to own a handgun or keep one at his home.
Appellant's daughter testified she was living with her father and Vince Tomasetti on November 26, 2007. She was a high school student who taught classes at the karate studio. She met Kelly and her son at the studio in the fall of 2006 and later learned that appellant and Kelly were involved in a relationship. Appellant drove his daughter to school on the morning of November 26, 2007. Vince Tomasetti picked her up at the end of the school day. He explained that appellant could not pick her up because he was at the hospital. She later called her father at the studio, and he explained he went to the hospital because Kelly had been "jumped" and "injured." Appellant's daughter said she had never seen a handgun in her father's home.
Appellant testified on his own behalf. He said he dropped off his daughter at school on the morning of November 26, 2007, and returned home shortly after 9:00 a.m. Vince Tomasetti was on the couch when he arrived. Appellant said he did not plan for Kelly to drop the baby off with him that day. Appellant intended to go back to sleep after taking his daughter to school. However, he heard Tomasetti say, " 'You have company,' " and then saw Kelly enter the house with the baby. According to appellant, Kelly said she had to run some errands and needed appellant to watch the baby. Appellant said he could not do so that day. Appellant asked Tomasetti to take the baby into his bedroom so appellant could talk with Kelly. Appellant said Tomasetti had found an aluminum foil packet of white powder in the baby's diaper bag and was concerned the powder "was drugs."
Officer Cox recovered 18 foil packets of a powdery substance from appellant's home. The parties stipulated that the California Department of Justice tested the packets and determined they did not contain controlled substances.
Appellant said Kelly "got loud" when he mentioned the powder, denied the powder was hers, and said she did not know what it was. Kelly said she was going to take the baby and leave. Appellant was worried that Kelly was under the influence of drugs. He told Kelly she was not going to take the baby and blocked her path to the front door. Appellant said he and Kelly engaged in a pushing match and Kelly spun around, slipped, and fell against a wall and onto the floor.
Appellant said Kelly appeared to be unconscious. He shook her and she began mumbling. Appellant called out to Tomasetti to get an icepack. Tomasetti went from the bedroom to the kitchen, got an icepack, and gave it to appellant, who applied it to the right side of Kelly's face. After a half-hour passed, appellant and Tomasetti helped Kelly to her feet and walked her to the master bathroom at her request. Appellant sat Kelly on the toilet and applied pressure with the icepack. Appellant said Kelly was bleeding from the nose and complained the icepack was burning her. Appellant sent Tomasetti into the kitchen to get some ice, and appellant wrapped the ice in a towel for Kelly.
A short time later, appellant helped Kelly to her feet at her request. She started to walk to appellant's bed to lie down. As she proceeded to the bed, Kelly tripped over some clothing on the floor. She tried to maintain her balance by reaching for appellant's dresser. However, she hit the dresser and split her lip open on some VCR tapes he had stacked on the top of the dresser. Kelly fell to the floor again, and appellant and Tomasetti helped her to her feet and then sat her on the bed. Appellant used the towel to apply pressure to Kelly's lip to stop the bleeding.
Appellant told Kelly she needed to go to the hospital, and she eventually acceded. Appellant changed the baby's diaper and put the baby in his Ford Expedition. Appellant then walked Kelly from his bedroom into the Expedition. While appellant was loading the Expedition, Kelly gave Tomasetti the keys to her car and asked him to pick up her son at school.
Appellant said he told Kelly he was going to jail because he had pushed her. Kelly replied, " 'No, you're not. I'm not going to throw my baby's dad in jail. I'm going to tell them I got mugged.' " On the way to the hospital, appellant stopped by the karate studio and picked up Tomasetti. Appellant said Kelly had instructed Tomasetti to leave her car at the studio. They proceeded to the hospital, and appellant went inside the emergency room with Kelly and the baby while Tomasetti parked the Expedition. They waited for more than an hour before hospital staff saw Kelly. Kelly's father arrived at the hospital after receiving a call from her.
Appellant did not tell hospital staff members about the origin of Kelly's injuries. Appellant remained in the lobby with the baby and Kelly's father accompanied her as she received treatment. Police officers later came to the lobby and instructed appellant to turn the baby over to a nurse. Appellant instead gave the baby to Kelly's son. Appellant said at that point Kelly's father opened the door, told officers that appellant was a black belt, and the officers "went ballistic." He said the officers then tackled him, took him into custody, and escorted him from the hospital.
Appellant specifically denied threatening Kelly with death; striking, strangling, and stomping her; or owning or possessing a gun. Appellant said he became romantically involved with Kelly in September 2006, but he broke off the relationship in November or December 2006, partly because he had feelings for Elana Brooks. Appellant married Elana on December 30, 2006, and knew that Kelly might be pregnant at that time. Appellant did not tell Kelly he was going to marry Elana. A week after appellant married Elana, he saw Kelly at a gas station. Kelly accused him of being married during the entire time of their relationship. In January 2007, Kelly came to the karate studio and advised appellant she was pregnant.
Rebuttal Evidence
Officer Cox testified he and two other officers took appellant into custody at the hospital. Cox said he spoke to appellant while he was seated in the patrol car outside the hospital and appellant related his version of events. Appellant told Cox that Kelly arrived at the karate studio with their infant daughter and that Kelly seemed fine upon her arrival. Appellant told Cox he heard loud screaming in the alley behind the studio several minutes later. According to Cox, appellant said he saw Kelly with a bloodied face. Kelly told appellant that two men tried to rob her and assault her. Appellant told Cox that Tomasetti was also at the studio, and that he instructed Tomasetti to call the police. When Tomasetti was unable to reach the police, appellant put Kelly in his Ford Expedition and drove her to the hospital.
Officer Cox said he advised appellant that Kelly had a different version of the events. Appellant denied he was the person who assaulted Kelly and denied that she came to his house that morning. Appellant never said anything about engaging in a pushing match with appellant at his home.
Kelly testified on rebuttal that she never said, " 'I'm not going to put my baby's daddy in jail.' " Kelly said appellant sought a reconciliation with her during the time of her pregnancy. He left voicemail messages about reconciliation on her cell phone during that period of time. She had saved some of the messages. The prosecution played a cassette tape of those voicemail messages for the jury.
DISCUSSION
I. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR BY
FAILING TO INSTRUCT ON THE ELEMENTS OF ATTEMPTED VOLUNTARY MANSLAUGHTER
Appellant contends the trial court committed reversible error in giving CALCRIM No. 603 because "that instruction improperly required a finding that an ordinary person of average disposition would kill in response to provocation."
A. The Challenged Instruction
CALCRIM No. 603 [Attempted Voluntary Manslaughter: Heat of Passion Lesser Included Offense], as read to the jury stated:
"Attempted voluntary manslaughter is a lesser offense of attempted murder. An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion. The defendant attempted to kill someone because of a sudden quarrel or in the heat of passion if, number one, the defendant took at least one direct but ineffective step toward killing a person. Number two, the defendant intended to kill that person. Number three, the defendant attempted the killing because he was provoked. Number four, the provocation would have caused an ordinary person of average disposition to act rationally[] and without due deliberation, that is, from passion rather than from judgment. And number five, the attempted killing was a rash act done under the influence of intense emotion that obscured the defendant's reasoning or judgment.
"Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection.
"In order for heat of passion to reduce an attempted murder to attempted voluntary manslaughter, the defendant acted under the direct and immediate influence of provocation as I have defined it. Although, while no specific type of provocation, slight or remote, provocation is not sufficient [sic].[] Sufficient provocation may occur over a short or long period of time. It is not enough that the defendant simply was provoked.
"The defendant is not allowed to set up his own standard of conduct. You must decide whether defendant was provoked and whether the provocation was sufficient. In deciding whether the provocation was sufficient consider whether an ordinary person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts. If enough time passed between the provocation and the attempted killing for an ordinary person of average disposition to cool off and gain his or her clear reasoning and judgment, then the attempted murder is not reduced to attempted voluntary manslaughter on this basis.
"The People have the burden of proving beyond a reasonable doubt that the defendant did not attempt to kill as a result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of attempted voluntary manslaughter." (Italics added.)
CALCRIM No. 603 states in relevant part: "The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment." (Emphasis added.) At this point in the jury instructions, the court reporter transcribed the word "rationally" in lieu of the word "rashly." We cannot determine from the record whether this was due to indistinct pronunciation by the court or due to misperception and/or incorrect transcription on the part of the court reporter. The jury also received a written copy of the instructions. Consequently, as long as the court provides accurate written instructions to the jury to use during deliberations, no prejudicial error occurs from deviations in the oral instructions. (People v. Rodriguez (2000) 77 Cal.App.4th 1101, 1112-1113.)
This portion of CALCRIM No. 603 appears garbled in the reporter's transcript. The written version of jury instructions governs any conflict with oral instructions. Consequently, as long as the court provides accurate written instructions to the jury to use during deliberations, no prejudicial error occurs from deviations in the oral instructions. (People v. Rodriguez, supra, 77 Cal.App.4th at pp. 1112-1113.) The jury received a written copy of the instructions. The prosecutor did not exploit the court's misstatements during his closing argument. There is no indication in the record that the jurors contemplated the differences between the oral and written versions of CALCRIM No. 570. Therefore, we conclude that the court's slight misreading or the court reporter's slight misreporting of this instruction was not prejudicial under any possible standard of review. (People v. Crittenden (1994) 9 Cal.4th 83, 138-139.)
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B. Appellant's Specific Contention
Appellant contends the italicized sentence improperly suggested that a reasonable person would kill in the same situation. He maintains the sentence confused the jurors and made them think they should not acquit on attempted voluntary manslaughter because most lay jurors would not believe it is reasonable to kill in response to provocation. He submits reasonable people could have disagreed as to whether appellant acted with the intent to kill or rather with the intent to inflict great bodily injury. Appellant asserts the italicized sentence should have been deleted or modified to read: " 'In evaluating whether the provocation was sufficient, consider whether the provocation would have caused a person of average disposition to act rashly and without due deliberation, that is from passion rather than judgment.' " In appellant's view, the instruction as given erroneously defined the elements of attempted voluntary manslaughter and violated the due process clause of the Fourteenth Amendment to the U.S. Constitution.
C. Applicable Law
The factor that distinguishes voluntary manslaughter in the heat of passion from murder is provocation. (People v. Lee (1999) 20 Cal.4th 47, 59.) Just as the provocation must "cause an ordinary person of average disposition to act rashly or without due deliberation and reflection," so the cause of the provocation must be either the victim or the conduct in which the defendant reasonably believed the victim was engaged. (Ibid.) The law requires no specific type of provocation. (People v. Lasko (2000) 23 Cal.4th 101, 108.)
Heat of passion arises when passion so disturbs or obscures the defendant's reason at the time of the killing or attempted killing as to cause the ordinarily reasonable person of average disposition to act rashly, without deliberation and reflection, and from passion rather than from judgment. (People v. Barton (1995) 12 Cal.4th 186, 201.) The passion the provocation causes may be any violent, intense, high-wrought or enthusiastic emotion other than revenge. (People v. Breverman (1998) 19 Cal.4th 142, 163.) The legal requirement of heat of passion has both an objective and a subjective component. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) Just as, objectively, heat of passion must naturally arise in the mind of an ordinarily reasonable person under the given facts and circumstances, so, subjectively, the defendant must actually kill or attempt to kill on heat of passion. (Ibid.)
When considering a challenge to a jury instruction, an appellate court does not review the instruction in artificial isolation. Rather, the court views the instruction in the context of the overall charge. If a party claims an instruction is ambiguous, the test is whether the jury misunderstood and misapplied the instruction. (People v. Mayfield (1997) 14 Cal.4th 668, 777.)
D. Analysis
Appellant contends the court erred by instructing pursuant to CALCRIM No. 603:
"In deciding whether the provocation was sufficient consider whether an ordinary person of average disposition would have been provoked and how such a person would react in the same situation knowing the same facts."
Appellant contends the court should have instructed:
" 'In evaluating whether the provocation was sufficient, consider whether the provocation would have caused a person of average disposition to act rashly and without due deliberation, that is from passion rather than judgment.' "
Appellant ignores the fact that in giving CALCRIM No. 603, the court did instruct the jury:
"[T]he defendant attempted to kill someone because of a sudden quarrel or in the heat of passion if .... Number four, the provocation would have caused an ordinary person of average disposition to act [rashly] and without due deliberation, that is, from passion rather than from judgment .... "
Thus, in setting forth the elements of the offense pursuant to the standard instruction, the court did utilize almost the precise language that appellant now contends was omitted from the charge to the jury. As respondent notes, at no point did CALCRIM No. 603 direct the jury to determine whether appellant's acts in response to the provocation were those of a reasonable person. When read as a whole, CALCRIM No. 603 correctly incorporates both the objective and the subjective components of heat of passion. For provocation and heat of passion to reduce an attempted murder to an attempted voluntary manslaughter, the jury must find, among other things, that "the provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment." (CALCRIM No. 603.) This does not involve any review of whether the acts themselves were reasonable, only that the provocation was such that it would have caused a reasonable person to act from passion rather than by using judgment.
The trial court did not err in giving standard CALCRIM No. 603.
II. THE TRIAL COURT DID NOT IMPROPERLY RELY ON INVALID FACTORS IN IMPOSING THE UPPER TERM OF IMPRISONMENT FOR ATTEMPTED VOLUNTARY MANSLAUGHTER
Appellant contends the case must be remanded for resentencing because the trial court relied on invalid factors in imposing the upper term on the principal offense. He specifically contends the court improperly found that appellant confined Kelly within the meaning of section 1170.84. He further contends the findings of great bodily injury and violence were improper because those facts were included in the enhancement.
A. The Sentencing Hearing
On December 21, 2009, the court conducted a sentencing hearing and imposed a total state prison term of 11 years 6 months, stating in relevant part:
"The Court does find that the requirement [] of Penal Code Section 1170.84 was met, in that the victim was confined by the defendant for a number of hours and thus is an aggravating factor in this case.
The duration of the incident was not seriously disputed by the defense evidence.
"The Court finds also in aggravation that the crime involved great violence, great bodily harm, and acts disclosing a high degree of cruelty and viciousness as set forth in Rule 4.421(A)(1).
"The Court also finds that defendant engaged in violent conduct, which indicates a serious danger to society. That's Rule 4.421(B)(1)."
B. Appellant's Contention
Appellant contends:
"Here, appellant did not tie or bind [Kelly]. Nor did he confine her, as he did not hold her down. He may have beaten her up and not taken her to the hospital right away, but he did not prevent her from leaving with ties or bindings or by pinning her down. This was the use of an improper aggravating factor.
"The next two factors used to impose the upper term were improper because the court used the same facts to impose the upper term and a sentence enhancement..
"... The [Penal Code section 12022.7 great bodily injury] enhancement thus contained facts of great bodily harm and violence. The court thus improperly used the same facts to impose the upper term and a sentence enhancement. The court cannot use those facts for both purposes.. "
C. Applicable Law
Section 1170.84 states:
"Upon conviction of any serious felony, listed in subdivision (c) of Section 1192.7, it shall be considered a circumstance in aggravation of the crime in imposing a term under subdivision (b) of Section 1170 if, during the course of the serious felony, the person engaged in the tying, binding, or confining of any victim."
California Rules of Court, rule 4.421 states in relevant part:
"Circumstances in aggravation include factors relating to the crime and factors relating to the defendant.
"(a) Factors relating to the crime
"Factors relating to the crime, whether or not charged or chargeable as enhancements include that:
"(1) The crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness or callousness .... [¶] ... [¶]
(b) Factors relating to the defendant
"Factors relating to the defendant include that:
"(1) The Defendant has engaged in violent conduct that indicates a serious danger to society .... "
D. Analysis
Kelly testified she arrived at appellant's home to drop off their baby and explained to him that she needed to leave. When Kelly went to open the front door to depart, appellant grabbed her hand. Kelly felt something strike her in the back of the head and neck. She testified appellant punched her repeatedly in the face and placed his hands around her neck and strangled her. Appellant stomped on her face, head, and body. He kicked her in the back and chocked her a second time using something other than his hands. Kelly said the choking was so tight that she could not breathe. Kelly later found herself in appellant's bedroom. She was unable to stand and tried to crawl to the bedroom door. Before she could reach the door, appellant entered the bedroom and asked what she was doing. Kelly told appellant something was really wrong and that her stomach hurt each time she took a breath. Appellant nevertheless refused to take her to the hospital at that point.
A trial court's findings of sentencing factors must be upheld if supported by substantial evidence. (People v. Gragg (1989) 216 Cal.App.3d 32, 46.) The direct evidence of one witness entitled to full credit is sufficient for proof of any fact, except where additional evidence is required by statute. (Evid. Code, § 411.) Kelly's testimony constituted substantial evidence of confinement and the trial court did not err in finding this circumstance in aggravation.
The People agree it would be "an error to both aggravate a sentence based on the infliction of great bodily injury ... and to impose an enhancement for the infliction of great bodily injury." However, the People note that the court in this case did not merely impose the upper term and enhance appellant's sentence based upon infliction of great bodily injury. Rather, the court also noted the crime "involved great violence" and entailed "acts disclosing a high degree of cruelty and viciousness." Those findings are not synonymous with a finding of great bodily injury. Even if we were to assume some sort of dual use, a single factor in aggravation may support a sentencing choice. (People v. Yim (2007) 152 Cal.App.4th 366, 369.) The trial court's finding that appellant confined Kelly within the meaning of section 1170.84 was sufficient to support the imposition of the upper term of imprisonment.
The trial court did not commit reversible sentencing error.
DISPOSITION
The judgment is affirmed.
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Poochigian, J.
WE CONCUR:
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Kane, Acting P.J.
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Detjen, J.