Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. MF006813A. James M. Stuart and Gary T. Friedman, Judges.
Judge Stuart ruled on appellant’s motion to suppress; Judge Friedman presided over the remaining portion of the case relevant to this appeal.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
A jury convicted appellant Roddy Guzman of multiple offenses arising out of domestic violence incidents against his wife. He contends the trial court erred in denying his motion to suppress and in permitting an amendment to the information after the victim completed her testimony at trial. Guzman further argues the trial court abused its discretion in refusing to dismiss a prior strike conviction. Finally, Guzman claims his sentence of 102 years to life constitutes cruel and unusual punishment for offenses arising out of a domestic dispute and is disproportionate to his culpability. We will affirm the judgment.
FACTUAL AND PROCEDURAL SUMMARY
Guzman and Lorena Guzman were married on September 13, 2002; she filed for dissolution of marriage on February 16, 2005. Lorena had children by a prior marriage. One of her children, A., lived with Lorena and Guzman.
We will refer to Lorena by her first name, not out of disrespect but to avoid any confusion to the reader.
In November 2002, Guzman accused Lorena of cheating on him. She denied the accusation. Guzman struck her in the face and then stabbed her in the stomach with a steak knife. The wound bled, but it was not a deep wound.
Guzman took Lorena to the hospital, where she told staff she was depressed and tried to commit suicide. They placed Lorena on a 72-hour psychiatric hold. When Lorena was released, Guzman picked her up from the hospital. She told Guzman he should leave, but he apologized and she forgave him. Lorena did not tell her family that she never tried to commit suicide or that Guzman had stabbed her.
In December 2003, Lorena learned Guzman was having an affair with another woman. She confronted Guzman and he left the house. Lorena followed him, smashed the windows of his car, threw a soda can at him, and “bumped” his car with hers. Lorena pled guilty to misdemeanor vandalism, served jail time, and was placed on probation.
In August 2004, Lorena and Guzman were living in Mojave with Lorena’s mother, Otilia Vire. One evening Lorena and Guzman started arguing. Lorena took Guzman’s cell phone, broke it, and threw it at him. Guzman pulled Lorena’s hair, accused her of cheating on him, and struck her three times on the side of her head with a bottle. Vire took Lorena to the hospital. Lorena received 12 stitches to close the laceration around her ear and on the side of her head. Officers took photographs of the injuries, but Lorena declined to press charges at that time. A few days later, Vire noticed Lorena had a black eye and bruises on her arms.
On February 7, 2005, Lorena went to bed at around 10:00 p.m. Her son, A., was asleep in his bedroom and Guzman was in the living room drinking. The next morning Lorena was awakened by Guzman. He was standing over her, yelling at her and pulling her hair. Guzman was yelling that Lorena had invited men over the night before, had engaged in an orgy with them, and that he had witnessed everything while hiding in the bushes outside the house. Guzman continued to push at Lorena and scream at her.
Guzman then went to A.’s bedroom and began questioning the seven year old. A. was scared and Lorena feared for his safety. When Lorena tried to intercede, Guzman shoved her away. Guzman then pushed Lorena back into their bedroom and began pulling clothes from drawers and scattering them on the floor, claiming they were wet and dirty. When Lorena tried to tell Guzman he was not making any sense, Guzman punched her in the face twice with a closed fist.
Lorena called Guzman’s parents to come to the home because Guzman was acting strangely. Guzman pulled out the phone line, broke the phone, and continued to accuse Lorena. After about an hour, Guzman’s parents arrived; they stayed only 10 minutes. As soon as his parents left, Guzman again began arguing with Lorena.
Guzman pushed Lorena back into their bedroom, shoved her to the floor, and held a gun to her head. A. was in the doorway. Guzman was yelling at A. to tell him who had been in the house or else he would kill Lorena. Guzman told A., “Don’t lie to me.” A. was scared; Lorena was crying. A. also heard Guzman say, “Don’t lie to me or else I’ll go to your grandma’s house and kill everybody.” Guzman left the house and Lorena tried to comfort A., who was distraught and crying.
When Guzman returned, he had the gun tucked into his waistband and began punching Lorena in the face with a closed fist. Lorena’s sister, Maria Ponce, arrived. When she entered the house, Ponce saw a shotgun and two handguns on the couch. Ponce found Lorena lying on the floor where she had fallen after being struck by Guzman; Lorena was bleeding from the mouth.
Lorena told Ponce to grab A. and leave the house. Ponce left with A. Ponce drove to her sister-in-law’s house. Her sister-in-law, Sara Kachirisky, called 911. A. told Kachirisky that Guzman had hit his mother and had put a gun to her head.
Guzman was still arguing with Lorena after Ponce and A. left when they were interrupted by a knock at the door. A neighbor, Oscar Sanchez, told them that the police had been called. Guzman grabbed Lorena by the hair and tried to drag her to his car. Lorena eventually climbed into the car, but when Guzman released her she tried to run. Guzman grabbed her arm and stopped her, pulled her into the car, and drove away.
Lorena tried to jump out of the car at an intersection, but Guzman accelerated. Guzman finally pulled over to the side of the road about 20 miles away from their home. Guzman left the car saying “he was done with it.”
Deputy Gregory Rutter stopped Lorena shortly after Guzman left the car. There had been an advisory issued to be on the lookout for the car. Lorena told Rutter that Guzman had held a gun to her head and had threatened to shoot her.
Shortly before locating and stopping the car Lorena now was driving, Rutter and his partner, Deputy Patrick McNeal, had responded to a dispatch. The dispatch stated, “an unknown circumstance, victim of a spousal abuse is being held against her will, and the suspect was threatening to kill her.” The suspect was identified as Guzman, a parolee at large, who had access to two handguns.
After arriving at the Guzman home, the deputies knocked and identified themselves. There was no answer. They looked through a window that did not have the shades drawn and saw some bedroom furniture. The window was unlocked. “[N]ot knowing if the victim was injured inside the house, if she was being held at gunpoint or held against her will by the suspect,” Rutter and McNeal entered the home through the window.
Rutter and McNeal made a quick sweep through the home to determine if Lorena was inside injured or being held against her will. Rutter opened a closet door and saw a loaded .45-caliber handgun clearly visible inside. McNeal looked under a bed, which had a two- to three-foot clearance from the floor. Under the bed was a loaded shotgun.
At trial, Lorena’s supervisor at Lancaster Community Hospital and a coworker both testified. Lorena’s supervisor testified that on two occasions Lorena had called in “sick,” but when she returned to work there were multiple bruises on her face. Lorena confided to her supervisor that she and Guzman had physical fights.
Lorena’s coworker testified to seeing bruises on Lorena’s face, chest, and arms once or twice a week beginning after she married Guzman. Lorena told her coworker that the bruises were inflicted by Guzman. Lorena also confided that Guzman had stabbed her, but that she had lied to hospital staff about that incident.
Lorena’s mother, Vire, testified that when Guzman and Lorena lived with her, she saw Guzman strike Lorena. On one occasion, Guzman had Lorena on the porch and was pulling her hair, kicking her in the rib cage, and pointing a gun at her head.
A. testified that he had seen Guzman strike his mother on several occasions. A. also testified that he knew Guzman had at least three guns in the home -- two small ones and a big one. District Attorney Investigator Patricia Poeschel previously had interviewed A. Poeschel testified that during their interview, A. told her he had seen Guzman strike his mother on several occasions; Guzman had at least three guns; and Guzman had threatened to kill his mother and other family members.
The jury convicted Guzman of assault with a deadly weapon, count 2; terrorist threat, count 5; two counts of possession of a handgun by a felon, counts 6 and 7; spousal abuse on August 7, 2004, count 8; and assault with force likely to cause great bodily injury, count 9. The jury acquitted Guzman of kidnapping, false imprisonment, and one count of spousal abuse, but found Guzman guilty of the lesser offenses of misdemeanor battery upon a spouse and misdemeanor false imprisonment. The jury also found true that Guzman personally had used a firearm in committing the offenses in counts 2 and 5, and that he personally inflicted great bodily injury in committing counts 8 and 9.
In a bench trial, the trial court found that Guzman had two prior strike convictions. The trial court denied Guzman’s motion to strike his prior convictions. Guzman was sentenced to a total term of 102 years to life.
DISCUSSION
Guzman contends the trial court erred in (1) denying his motion to suppress the evidence found by Rutter and McNeal after they entered his home; (2) allowing an amendment to count 9 after witnesses testified; (3) declining to dismiss his two prior strike convictions; and (4) sentencing him to 102 years to life.
I. Motion to Suppress
It is settled that a trial court hearing a motion to suppress evidence acts as the finder of fact. Under standard principles of appellate review, we uphold its factual findings, whether express or implied, where supported by substantial evidence. (People v. Glaser (1995) 11 Cal.4th 354, 362; cf. People v. Johnson (1980) 26 Cal.3d 557, 578.) We exercise our independent judgment in determining whether, on the facts so found, the search or seizure was reasonable under the Fourth Amendment to the United States Constitution. (Glaser, at p. 362; People v. Lawler (1973) 9 Cal.3d 156, 160.)
We do not engage in substantial evidence review when the evidence is uncontradicted, but instead face pure questions of law. (People v. Fisher (1995) 38 Cal.App.4th 338, 341-342.)
A warrantless entry of a private dwelling or an arrest in a person’s home is presumptively unreasonable within the meaning of the Fourth Amendment to the federal Constitution in the absence of one of a small number of carefully circumscribed exceptions. (People v. Bacigalupo (1991) 1 Cal.4th 103, 122; People v. Cook (1978) 22 Cal.3d 67, 97; People v. Ramey (1976) 16 Cal.3d 263, 270.) One established exception to the warrant requirement is when “‘exigent circumstances’” exist to justify a warrantless entry or arrest. (People v. Wharton (1991) 53 Cal.3d 522, 577.) “Exigent circumstances” means an emergency situation requiring swift action to prevent imminent danger to life or serious damage to property, or to forestall the imminent escape of a suspect or destruction of evidence. (Ibid.)
The People bear the burden of establishing that exigent circumstances or another exception to the warrant requirement justified the entry or arrest. (People v. Williams (1988) 45 Cal.3d 1268, 1300.) There is no litmus test, however, for determining whether such circumstances exist. In each case the claim of an extraordinary situation must be measured by the facts known to the officers. (People v. Wharton, supra, 53 Cal.3d at p. 577.)
Exigent circumstances have been found where there is reasonable cause to believe additional suspects or potential victims are in a residence. (Tamborino v. Superior Court (1986) 41 Cal.3d 919, 924, citing People v. Keener (1983) 148 Cal.App.3d 73, 77.) The officers testified at the motion to suppress that they had received a dispatch indicating that a victim of spousal abuse was being held against her will and the suspect, Guzman, was threatening to kill her. The officers also were aware from the dispatch that Guzman was a parolee at large with access to two handguns.
When the officers arrived at the address indicated in the dispatch, they knocked on the door a couple of times, but no one answered. At that point, officers looked through an open window and decided to enter through the window to determine if the victim was injured and unable to respond to their knock or being held against her will. After entering, the officers made a protective sweep through the home, looking for Guzman and the victim. They looked in places where a person could hide or be hidden, such as in large closets, under a bed with a two- to three-foot clearance, and in the rooms of the home.
At the suppression hearing, the defense did not question either officer or offer any evidence.
Here, the officers knew that they had a parolee, Guzman, who was armed with two handguns. They knew they were entering a spousal abuse or domestic violence situation, with a female victim Guzman was holding against her will and threatening to kill. A parolee possessing handguns, holding a victim against her will, and threatening to kill her, all constituted criminal offenses that were in progress. There is no evidence that the officers knew or had reason to believe that Guzman had left the home with Lorena prior to their arrival. The officers did not look in any areas where a person could not be hidden, such as in drawers or cupboards, and conducted only a brief search of the premises to look for Guzman and Lorena.
Based upon the information communicated to the officers in the dispatch, they had reason to believe a female victim might be inside and seriously injured or prevented against her will from answering their knock. They also had reason to believe that a parolee, Guzman, had committed several criminal offenses that were still in progress. Their search was restricted to areas where a person could be hiding or lying injured. Under the facts of this case, we conclude exigent circumstances warranting entry into the home without a search warrant were present and the trial court properly denied the motion to suppress. (People v. Wharton, supra, 53 Cal.3d at p. 577.)
II. Amendment to Count 9
Initially, count 9 of the information charged Guzman with assault with a deadly weapon, a bottle, in violation of Penal Code section 245, subdivision (a)(1). After Lorena concluded her testimony, the People filed a motion to amend the count to assault with force likely to cause great bodily injury. Although the amended charge was a lesser offense, Guzman contends it was a lesser related, not a lesser included, offense and the amendment violated his due process rights.
All further statutory references are to the Penal Code unless otherwise noted.
The People may amend an information pursuant to section 1009 to conform to the proof at any stage of the proceedings, provided the charge is supported by evidence presented at the preliminary hearing and the defendant’s substantial rights are not violated. (Ibid.; People v. Carr (1988) 204 Cal.App.3d 774, 780, fn. 7.)
There was evidence presented at the preliminary hearing that Guzman struck Lorena, inflicting an injury that required medical treatment and stitches. At the time, Lorena thought Guzman had struck her with a bottle. In her trial testimony, Lorena equivocated, stating that something had hit her ear and she felt blood running down the side of her face. Lorena was not certain at trial that Guzman had a bottle in his hand when he struck her; she was certain that she had been struck by Guzman, causing an injury that necessitated medical treatment and 12 stitches.
Guzman claims he was prejudiced by the amendment because the evidence failed to establish that he had used a bottle as charged. He thus argues that he would have prevailed on his motion to dismiss at the close of the prosecution’s case. Also, if the amendment had been the original charge, he would have questioned Lorena differently.
This argument fails for two reasons. First, the motion would not have been granted because the amendment was to a lesser included offense, as we discussed ante, for which there was sufficient evidence to send the issue to the jury. Second, he was given an opportunity by the trial court to recall Lorena and question her further, which he refused.
Guzman does not claim he was otherwise prejudiced, or surprised, by the amendment. The evidence presented at the preliminary hearing was the same as that presented at trial, with the sole exception that Lorena no longer was certain that Guzman had used a bottle when he struck her. The evidence at the preliminary hearing supported the amendment and provided the requisite constitutional notice to Guzman. (People v. Jeff (1988) 204 Cal.App.3d 309, 342.)
Furthermore, the language of the statute cited by the People in both the initial and amended informations, section 245, subdivision (a)(1), provides that either an assault with a deadly weapon or by force likely to produce great bodily injury may be proven by the People in order to support a conviction under this subdivision of section 245. (Id., subd. (a)(1); People v. Chaffer (2003) 111 Cal.App.4th 1037, 1043.) Guzman clearly had notice of the elements of the statute he was charged with violating because it was cited in the initial charging document. That same statute was cited in the amendment.
Additionally, contrary to Guzman’s contention, the offense of assault by force likely to produce great bodily injury has been held to be a lesser offense of assault with a deadly weapon, requiring a trial court sua sponte to instruct on the lesser offense when the evidence warrants consideration of the lesser offense. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747-748, citing People v. Carmen (1951) 36 Cal.2d 768, 775.) Therefore, regardless of whether the People had formally amended the information, the trial court would have been required to instruct the jury on the lesser offense of assault by force likely to produce great bodily injury. (McDaniel, at pp. 747-748.)
The People’s amendment to count 9 after Lorena’s trial testimony did not deprive Guzman of his due process rights.
III. Prior Strike Conviction
Guzman brought a motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497. He contends it was an abuse of discretion for the trial court not to dismiss his prior strike conviction for violating section 186.22, subdivision (a). He claims that when he pled to the offense in 1999, it was not a strike offense, and he claims he implicitly was promised the conviction never would be used as a strike to enhance his sentence. He also contends his 1997 conviction for attempted robbery should not have been used to enhance his sentence because he initially received probation, then the low term when he violated probation. The trial court denied the motion.
There is no support in the record for Guzman’s assertion that he implicitly was promised his 1999 conviction for violating section 186.22, subdivision (a) never would be used to enhance his sentence. The transcript of the hearing in 1999 reflects that the offense was not a strike in 1999, but there was no discussion regarding limiting the ability to use the offense to enhance a sentence in the future, regardless of any changes in the law. The trial court reviewed the 1999 transcript and found there was no indication of any agreement preventing use of the 1999 conviction for future sentencing purposes.
Also, on March 7, 2000, voters passed Proposition 21, which made convictions for violating section 186.22, subdivision (a) strikes for purposes of enhancing sentences for future convictions. (§ 667.1; People v. James (2001) 91 Cal.App.4th 1147, 1149.) At the time Guzman committed his current offenses, the offense for which he previously had been convicted in 1999 was included in the list of offenses that qualified as strikes for purposes of sentence enhancement.
As for the denial of Guzman’s Romero motion, section 1385 permits the trial court to exercise its discretion and dismiss a prior strike conviction if the dismissal is in furtherance of justice. (Id., subd. (a); People v. Garcia (1999) 20 Cal.4th 490, 499, 502; People v. Williams (1998) 17 Cal.4th 148, 158; People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) A trial court’s failure to dismiss or strike a prior conviction pursuant to section 1385 is subject to appellate review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374-376.)
To show an abuse of discretion, the appellant must demonstrate the trial court’s decision “was irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of [the] prior convictions.” (People v. Myers (1999) 69 Cal.App.4th 305, 309-310.) When the record shows the trial court considered relevant factors and acted to achieve legitimate sentencing objectives, the decision will not be disturbed on appeal. (Id. at p. 310.)
Here, a review of the record discloses the trial court reviewed the motion and the People’s opposition, heard oral argument, considered all relevant factors, and then denied the motion. Guzman’s prior record, his failure on probation and parole, and the circumstances of the current offenses certainly support the trial court’s decision. The trial court acted to achieve legitimate sentencing objectives and did not abuse its discretion in denying Guzman’s motion to dismiss the priors.
IV. Cruel and Unusual Punishment
Guzman contends that he has been sentenced to a “draconian” term of imprisonment because he “unwisely carried a domestic dispute too far.”
A punishment for a term of years violates the Eighth Amendment to the United States Constitution if it is an “‘extreme sentence[ ] that [is] “grossly disproportionate” to the crime.’” (Ewing v. California (2003) 538 U.S. 11, 23 (lead opn. of O’Connor, J.), quoting Harmelin v. Michigan (1991) 501 U.S. 957, 1001 (conc. opn. of Kennedy, J.); see also Lockyer v. Andrade (2003) 538 U.S. 63, 72.) In a noncapital case, “‘successful challenges to the proportionality of particular sentences have been exceedingly rare.’ [Citation.]” (Ewing, at p. 21.) A punishment also may violate the California Constitution if “it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.)
Guzman’s contention that his sentence is cruel and unusual essentially amounts to an assertion that violence committed in the context of a domestic dispute is less culpable than violence committed in other contexts. We emphatically reject this contention.
Furthermore, Guzman glosses over and ignores the circumstances of his current offenses. At the time of his arrest for the current offenses, Guzman was on parole and in possession of three weapons, which, as a felon, he was forbidden to possess. He not only terrorized and harmed his wife, he threatened and terrorized her seven-year-old son. He characterizes the circumstances as “mutual combat,” a characterization we reject. At 5 feet 11 inches tall, 230 pounds, and in possession of firearms, we would not characterize Guzman’s actions as “mutual combat” against his unarmed wife and a seven year old.
Guzman also minimizes his considerable record of prior convictions. He was 27 years old at the time of the current offenses. He had multiple prior convictions and already had served multiple prior prison terms.
The total term imposed was 102 years to life. The sentence imposed on Guzman was for the current convictions, enhanced by his considerable recidivism. “That California’s punishment scheme is among the most extreme does not compel the conclusion that it is unconstitutionally cruel or unusual. This state constitutional consideration does not require California to march in lockstep with other states in fashioning a penal code. It does not require ‘conforming our Penal Code to the “majority rule” or the least common denominator of penalties nationwide.’ [Citation.] Otherwise, California could never take the toughest stance against repeat offenders or any other type of criminal conduct.” (People v. Martinez (1999) 71 Cal.App.4th 1502, 1516.)
We conclude that Guzman’s sentence does not violate the proscription of cruel or unusual punishment under either the California or the United States Constitutions.
DISPOSITION
The judgment is affirmed.
WE CONCUR:
HILL, J., KANE, J.