Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County Super. Ct. No. YA062889, Francis J. Hourigan III, Judge. Affirmed.
Stephen L. Bucklin, 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, Paul M. Roadarmel, Jr., Theresa A. Patterson and David A Voet, Deputy Attorneys General, for Plaintiff and Respondent.
Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Defendant Martin Garcia Gonzalez appeals from a judgment of conviction entered after a jury found him guilty of corporal injury to a spouse (Pen. Code, § 273.5, subd. (a)). Defendant admitted serving two prior prison terms (id., § 667.5, subd. (b)). The trial court sentenced defendant to the upper term of five years, plus two years for the prior prison terms.
On appeal, defendant claims reversal is required due to the erroneous admission of propensity evidence under Evidence Code section 1109 and instruction on the use of such evidence pursuant to CALJIC No. 2.50.1. He also challenges the enhancement of his sentence for prior prison terms and the imposition of the upper term sentence. We find no merit to his claims and affirm the judgment.
FACTS
On September 22, 2005, defendant’s wife returned home to find defendant intoxicated. They went to bed, and defendant’s wife reluctantly had sexual intercourse with him, hoping it would make him fall asleep. Defendant was unable to ejaculate, and eventually they stopped.
About an hour later, defendant demanded that his wife again engage in sexual intercourse. She refused, and defendant attempted to force her. She screamed for help, and their 18-year-old daughter came into the bedroom. The daughter told defendant to calm down, or she would call the police. She then left the bedroom.
Defendant again demanded sexual intercourse, and his wife again refused. Defendant began laughing hysterically until he defecated on himself. He used a sock to wipe himself then stuffed the sock in his wife’s mouth. When he went into the bathroom to wash himself off, his wife went into their 16-year-old son’s bedroom.
Defendant came into their son’s bedroom and grabbed his wife, trying to drag her back into their own bedroom. Their son hit defendant, but defendant continued his attempts to drag her back into their bedroom. Her arm and shoulder were injured in the struggle.
In May 2000, defendant got angry at his wife and struck her in the face, injuring her nose and lip. He also pulled her hair and, later that night, kicked her in the leg. Their children called the police. In September 2003, defendant came home drunk and struck his wife in the face. According to his wife, defendant was a decent husband and father when he was not drinking.
DISCUSSION
A. Admission of Propensity Evidence
Prior to trial, the People moved to introduce evidence of defendant’s prior acts of violence against his wife pursuant to Evidence Code section 1109 . Defendant objected under section 352 that the prejudicial effect of this evidence outweighed its probative value. The trial court disagreed and ruled the evidence admissible.
Unless otherwise stated, all further section references are to the Evidence Code.
Defendant contends on appeal that admission of the evidence of his prior acts violated his constitutional rights to due process and equal protection. By failing to make these claims below, defendant has waived them on appeal. (People v. Partida (2005) 37 Cal.4th 428, 433-439; People v. Rodrigues (1994) 8 Cal.4th 1060, 1119, fn. 22.) In any event, to the extent defendant’s due process claim might have been preserved because it was based on the same rationale as his objection under section 352 (see People v. Partida, supra, 37 Cal.4th at pp. 437-439), it is without merit.
The general rule, set forth section 1101, subdivision (a), is that “evidence of a person’s character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.” Subdivision (b) of section 1101 provides: “Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident . . .) other than his or her disposition to commit such an act.”
Section 1109 provides that “in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant’s commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.” (§ 1109, subd. (a)(1).)
Section 1108, subdivision (a), contains similar provisions applicable to sexual offenses. In People v. Falsetta (1999) 21 Cal.4th 903, the Supreme Court held that section 1108 did not violate due process and was constitutional. (Id. at pp. 907, 922.) The rationale behind Falsetta applies equally to section 1109. (People v. Jennings (2000) 81 Cal.App.4th 1301, 1310.) Although defendant argues that Falsetta must be reconsidered in light of recent federal cases, it is not our place to do so. We are bound by the Supreme Court’s decision in Falsetta. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Accordingly, we reject defendant’s due process claim.
B. CALJIC No. 2.50.1
Defendant acknowledges that CALJIC No. 2.50.1 has been upheld as constitutional by the Supreme Court (People v. Reliford (2003) 29 Cal.4th 1007, 1012-1016), and we are bound by that decision (Auto Equity Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 455). He nonetheless challenges the instruction on appeal in order to preserve the issue for federal review. He has preserved the issue, and we reject his claim of error in giving the instruction.
CALJIC No. 2.50.1 instructs the jury it cannot consider evidence of other crimes unless the prosecution proves by a preponderance of the evidence that the defendant committed the other crimes.
C. Prior Prison Term Enhancements
Defendant asserts that he never admitted serving time in prison, so the trial court erred in imposing enhancements under Penal Code section 667.5, subdivision (b). This section provides that “where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.”
The information alleged that “pursuant to Penal Code section 667.5(b)” defendant “suffered the following prior conviction(s), ” and listed two prior convictions of inflicting corporal injury on a spouse, in 2002 and 2004. The information further alleged “that a term was served as described in Penal Code section 667.5 for said offense(s), and that the defendant did not remain free of prison custody for, and did commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term.” The probation officer’s report indicated that defendant was sent to prison for each conviction. After waiving his right to a jury trial, defendant admitted the two prior convictions, for which he would receive an additional two year sentence. He did not admit having served two prison terms as a result of those convictions.
In People v. Epperson (1985) 168 Cal.App.3d 856, on which defendant relies, the defendant admitted two “prior convictions.” Although the information alleged that he served prison terms for those convictions and did not remain free of custody for the five-year “washout” period, the court read the record to show that the defendant admitted only the convictions and not the prison terms served or the nonexistence of “washout” periods. (Id. at pp. 863-865.)
By contrast, in People v. Cardenas (1987) 192 Cal.App.3d 51, the court viewed the admission of the prior convictions alleged in the information to include the admission of the prior separate prison terms served for those convictions, as alleged in the information. (Id. at p. 61.) We agree with Cardenas that by admitting the two prior convictions alleged in the information to have been under Penal Code section 667.5, subdivision (b), for which he would receive two one-year enhancements, defendant implicitly admitted serving prior separate prison terms for those convictions and failing to remain free of custody or re-offense for the five-year washout period. Accordingly, the enhancement for prior prison terms need not be reversed.
D. Imposition of the Upper Term Sentence
In sentencing defendant, the trial court noted that “defendant was on parole when the crime occurred. His conditions of parole were that he obey the law. He has not done that. So his performance on parole has been unsatisfactory. He’s engaged in violent conduct which indicates he’s a serious danger to society. [¶] His prior convictions as an adult are continuing.
“There is one mitigating factor that I want to discuss. One of the most telling parts of the victim’s testimony was that when her husband is sober, he is the best husband and father in the world. When he is drinking, he’s a menace. [¶] There was testimony in this trial he had been drinking when this offense occurred. And so that has some bearing on mitigation. But it’s very minor. [¶] . . . [¶]
“He chose to probably violate the terms of parole, and drink. He came home intoxicated. He had an argument with his wife because of some subjects that came up. He then did the most vile and degrading act to demean her. I won’t repeat it, but it’s in the court record. Then he didn’t give up. He pursued her into another room to drag her back into the bedroom. [¶] And so he’s earned this sentence that’s going to be imposed.
“The court is going to impose the high-base term of five years for the following reasons: I stated about being [on] parole, his performance on parole, and his continuing criminal record.”
Blakely v. Washington (2004) 542 U.S. 296, 303-304, held, based on Apprendi v. New Jersey (2000) 530 U.S. 466, 490, that the maximum sentence a judge may impose is that permitted by the facts established by the jury verdict or admitted by the defendant, or that which may be based on the defendant’s prior convictions. In People v. Black (2005) 35 Cal.4th 1238 at page 1244, the California Supreme Court held that Blakely does not preclude exercise of judicial discretion to impose the upper term sentence based on aggravating factors found by the court. Black was overturned by the United States Supreme Court in Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]. Once again, imposition of an upper term sentence is unconstitutional unless it is based on facts found by the jury, facts admitted by the defendant, or defendant’s prior convictions. (People v. Shadden (2007) 150 Cal.App.4th 137, 146, petn. for review filed June 7, 2007.)
As recognized by the California Supreme Court in People v. Black (2007) ___ Cal.4th ___ at page ___ [S.O.S 4620, 4625], the prior conviction exception has been construed broadly to apply not only to the fact of the prior conviction but also to other issues relating to the defendant’s recidivism. (Accord, People v. Earley (2004) 122 Cal.App.4th 542, 549-550; People v. Thomas (2001) 91 Cal.App.4th 212, 221-222; see Almendarez-Torres v. United States (1998) 523 U.S. 224, 247.) The exception “‘is not limited simply to the bare fact of a defendant’s prior conviction, but extends as well to the nature of that conviction, thereby permitting sentencing courts to determine whether the prior conviction is the type of conviction (for example, a conviction of a “violent” felony) that renders the defendant subject to an enhanced sentence.’ (People v. McGee (2006) 38 Cal.4th 682, 704.) As the McGee court explained, Apprendi distinguishes between ‘sentence enhancements that require fact finding related to the circumstances of the current offense, . . . a task identified by Apprendi as one for the jury[, ] and the examination of court records pertaining to a defendant’s prior conviction to determine the nature or basis of the conviction—a task to which Apprendi did not speak and “the type of inquiry that judges traditionally perform as part of the sentencing function.” [Citation.]’ (Id. at p. 709.)” (People v. Yim (2007) 152 Cal.App.4th 366, ___; accord, People v. Morton (2007) 152 Cal.App.4th 323, ___; but see People v. Nguyen (June 29, 2007, H028798) ___ Cal.App.4th ___ [S.O.S. 4243].) The exception thus extends to the defendant’s parole or probation status and prior performance on parole or probation. (Yim, supra, at p. ___; Morton, supra, at p. ___.)
Here, the trial court’s decision to impose the upper term sentence clearly was based on defendant’s recidivism, including his parole status and poor performance on parole. Consequently, there was no Blakely/Cunningham error; the upper term sentence was proper. (People v. Black, supra, ___ Cal.4th at p. ___ [S.O.S at p. 4626]; People v. Earley, supra, 122 Cal.App.4th at pp. 549-550; People v. Thomas, supra, 91 Cal.App.4th at pp. 221-222.)
The judgment is affirmed.
We concur: MALLANO, Acting P. J., VOGEL, J.