Opinion
B296457
03-04-2020
THE PEOPLE, Plaintiff and Respondent, v. ANDREW M. HALPERIN, Defendant and Appellant.
Suzan E. Hier, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. MA038610) APPEAL from an order of the Superior Court of the County of Los Angeles, William C. Ryan, Judge. Affirmed. Suzan E. Hier, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Paul M. Roadarmel, Jr. and Stephanie A. Miyoshi, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
The trial court denied defendant Andrew M. Halperin's renewed petition for recall of sentence under Penal Code section 1170.126, finding him ineligible for resentencing on his assault conviction. On appeal, defendant contends the court's finding that he committed the assault with the intent to cause great bodily injury was unsupported by the trial evidence. According to defendant, his intent to cause the victim's injuries was not at issue during his trial; and, because the defense had no motive or opportunity to challenge the evidence from which the court inferred that intent, it was too unreliable to support the court's finding. Defendant further contends that we should defer to the jury's determination about the victim's credibility, not the trial court's, and that the trial evidence, as a whole, was insufficient to support a finding of intent beyond a reasonable doubt. We affirm.
All further statutory references are to the Penal Code.
II. FACTUAL BACKGROUND
A. Prosecution's Case
On May 16, 2007, Donna H. was staying in room 10 at the Bon Aire Motel in Lancaster. According to Donna H., she was staying there because she "was an addict." Donna H. had been a prostitute for 15 to 20 years.
At the time of the incident, Donna H. was addicted to cocaine and heroin and had been for over 40 years. At trial, Donna H. claimed that she was "six months clean; [she was] in a recovery home."
That morning, Donna H. used heroin when she woke up at 7:00 a.m. At about 9:00 p.m. that night, she was in her room sick "from not having any [more heroin]." Defendant knocked on her door which was partially open. He asked Donna H. if she "could get him some speed." Donna H. told defendant that another prostitute named Jane had claimed that defendant recently robbed and choked her. Donna H. therefore refused to help defendant until he repaid Jane and made "it right . . . ." When defendant told Donna H. that he had "made it right with [Jane]," Donna H. replied that she would call Jane to "find out if that [was true] . . . ."
Donna H. met defendant two years prior when she provided him prostitution services.
Donna H. walked across the room to the telephone, intending to call the police. As she reached down to pick up the phone, she heard something behind her and turned toward the door. She saw defendant's fist coming at her and his first punch rendered her unconscious. She then saw defendant "standing over [her], and he was cussing and ranting and raving," telling her "bitch, you ain't calling the police . . ." and "bitch, you [are] dead if you call the police . . . ."
Donna H. explained that "as soon as [she] started to get up, [defendant] just started . . . wailing on [her, hitting her] . . . in [her] kidneys, in the back of [her] head, the side of [her] head" causing blood to spatter "all over the wall." "[Defendant] cut [her] jaw, . . . [and she] took . . . five blows on the side of [her] head and five in the back and another five in [her] kidneys." Donna H. estimated that defendant punched her with his closed fist about 15 to 20 times.
Donna H. had "been hit by some of the biggest men," but defendant had a particularly powerful punch and was hitting her especially hard.
To persuade defendant to stop hitting her, Donna H. told him that she had a warrant out for her arrest and that if she called the police, she would also be arrested. Her statement caused defendant to stop hitting her, at least temporarily. As defendant started to leave, he grabbed Donna H.'s purse, took money out, and started to walk through the door. Donna H. followed defendant to the door, intending to close it behind him and then call the police. But defendant turned around and said, "[B]itch, . . . why are you so close to me? Why are you following me?" Defendant then threatened again to kill Donna H. if she called the police and punched her in "the front of [her] head," causing her nose to bleed.
After that last punch, defendant left the room and Donna H. slammed the door, locked it, and called the motel manager, Rosher Sebastian. While she was talking to the manager and asking him to call the police, defendant returned and beat on her door. Donna H. pretended that she was talking to the police and telling them that defendant was a guest at the motel, which caused defendant to leave her door.
Donna H. next heard defendant talking to the manager, so she opened the door and saw him standing near a vending machine as if nothing had happened. Defendant appeared "drunk [or] under the influence . . . ." He yelled something at the manager, who told defendant that he was talking to the police and to "get out." Defendant left the motel and walked down Sierra Highway toward Snooky's Bar.
The police arrived at the motel within a few minutes and Los Angeles Police Department Detective Steve Owen took Donna H.'s statement. She described the assault and robbery, but refused medical attention because of the outstanding warrant and because she was "dope sick" and did not want to go to jail.
The police detained defendant in the parking lot of Snooky's Bar and Donna H. identified him as her assailant. The police found $115 inside defendant's pocket and returned it to Donna H.
Following the assault, Donna H. was in pain and "had blood all over everything. Blood was all over the wall, and [she] had blood all over [her]." She was bleeding from her chin and nose. Her "head was killing [her]" and her kidneys were still hurting at the time of trial. She maintained that she "had kidney problems ever since [the assault]."
On cross-examination, Donna H. volunteered that defendant "beat [her] half to death." She also confirmed her preliminary hearing testimony that, at the time of the hearing, she was "still spitting up blood, coughing up blood. Blood, and a lot of blood."
On the evening of the assault, Sebastian was working at the Bon Aire Motel as the acting manager. Around 9:00 p.m., he received a call during which he "heard some screaming," but could not remember what was being said. He looked out of his office and saw defendant walking down the hallway toward him. Sebastian left the office and spoke to defendant who said something Sebastian could not understand. Defendant smelled of alcohol and his shirt was open.
Sebastian then saw Donna H. coming from her room, and she and defendant began to exchange words. Sebastian told Donna H. to return to her room and allow him to "deal with [defendant]." He then directed defendant to go back to his own room and sober up. But instead of returning to his room, defendant walked away from the motel.
Sebastian went to Donna H.'s room to check on her. When he saw her, she appeared to be "messed up." She showed him her hands and face "with some scratches and blood." Although Donna H. was bleeding, Sebastian could not tell from where the blood was coming. Donna H. appeared upset and wanted Sebastian to call the police, which he did. He asked Donna H. if she needed medical assistance, but she said no.
During Sebastian's 911 call to police, he told the operator that he did not think that Donna H. needed medical attention, but then stated, "[B]ut . . . let me ask her. Do you need some medical attention, ma'am?" A woman in the background, presumably Donna H., responded in the affirmative to his question.
Detective Owen responded to the Bon Aire Motel at approximately 9:50 p.m. He spoke to Donna H. whom he had known for 13 or 14 years and described her as crying, "very upset," "nervous," "scared," and "shaking." She was bleeding from her nose and chin and the detective also noticed a "small abrasion" on her chin. She did not appear to be under the influence of drugs or alcohol. Donna H. told Detective Owen that defendant "beat the crap out of her."
Detective Owen believed Donna H. needed medical attention, but she specifically asked him not to call the paramedics. She assured the detective that she would seek medical attention on her own the next day.
Although Detective Owen was in Donna H.'s room, he did not notice if there was blood spatter on the walls. But he did not inspect the entire room for blood on the walls. And, he did not take photographs of either Donna H. or her room that night or the next day.
After defendant was handcuffed and placed in the back seat of a patrol car, he became belligerent, "yelling," "screaming," and using "a lot of vulgar language." Detective Owen believed deputies "were going to have to use force to try and control [him]." He told the deputies who had detained defendant "to take [him] to the station before something happened." B. Defense Case
Defendant admitted that he was at the Bon Aire Motel on May 16, 2017, but denied that he assaulted Donna H., claiming that he "never even touched her." He also denied stealing any money from her. According to defendant, only $30 of the money recovered from him by police came from Donna H. as change from a drug deal. The balance of the money came from ATM withdrawals at Snooky's Bar and Sierra Liquor that day or at Bank of America the day before.
Defendant admitted that he had been drinking since 7:00 a.m. the day of the incident. He consumed at least a six-pack of beer and also had "a couple [of] margaritas" at a Mexican restaurant, but he denied that he was inebriated at the time of the incident. Although he acknowledged that drinking made him uninhibited and paranoid, he testified that he was able to control his anger and, even while intoxicated, his "paranoi[a] about [the] Three Strikes Law" prevented him from committing an assault on Donna H.
Daniel Handy, a custodian of records for Bank of America, testified about bank statements for defendant's account showing two ATM transactions on May 16, 2007. The statements showed that on that date, defendant made a $100 withdrawal from an ATM located at Snooky's Bar and a $200 withdrawal from an ATM located at Sierra Liquor store.
Alan Rush was appointed as a defense investigator who had worked on the case for a year. He tried unsuccessfully to locate and interview Donna H. He also tried unsuccessfully to locate the woman referred to as Jane.
III. PROCEDURAL BACKGROUND
A. Defendant's Conviction and Sentence
The procedural details of defendant's conviction and sentence are taken from this court's prior nonpublished opinion (People v. Halperin (Dec. 15, 2009, B209310).)
The jury found defendant guilty of assault by means likely to produce great bodily injury upon Donna H. in violation of former section 245, subdivision (a)(1). The trial court dismissed the two other counts alleged against defendant—residential robbery in violation of section 211 and dissuading a witness in violation of section 136.1—after the jury was unable to reach verdicts. The jury also found that defendant had suffered four prior violent or serious felony convictions within the meaning of the Three Strikes Law and that he had served four prior prison terms within the meaning of section 667.5, subdivision (b). The court imposed a Three Strikes Law sentence of 25 years to life, plus an additional four-year term for the prior prison term findings. B. Original Petition to Recall Sentence
In June 2013, defendant filed his original petition for recall of sentence under section 1170.126, arguing that he met all of the criteria specified in subdivisions (a) through (e) of that section. On September 3, 2015, the trial court held a hearing on the petition and denied it, finding defendant "statutorily ineligible for recall and resentencing pursuant to []section 1170.126, because during the commission of the offense he intended to cause great bodily injury to another person." C. Appeal from Order Denying Original Recall Petition
Defendant appealed from the order denying his original recall petition, contending that the trial court's finding that he intended to cause great bodily injury was impermissible because the jury was not required to and did not make such a finding and, even assuming the resentencing court could make such a fact finding, it applied the wrong standard of proof in finding the defendant ineligible for sentencing.
On August 18, 2016, this court issued a nonpublished opinion affirming the order denying the original recall petition, concluding that the trial court properly considered the entire record of conviction, including the trial evidence, in making its eligibility determination; that substantial evidence supported the trial court's finding that defendant intended to cause great bodily injury; and that the trial court properly applied the preponderance of evidence standard in making its finding. (People v. Halperin (Aug. 18, 2016, B267317) [nonpub. opn.].) D. Renewed Petition for Recall of Sentence
In December 2017, the Supreme Court in People v. Frierson (2017) 4 Cal.5th 225 (Frierson) held that facts demonstrating that a defendant is ineligible for resentencing under section 1170.126 must be found under the beyond a reasonable doubt standard, and not the preponderance of the evidence standard. (Frierson, supra, 4 Cal.5th at p. 230.)
Following the Supreme Court's decision in Frierson, supra, 4 Cal.5th 225, defendant filed a renewed petition for recall of sentence under section 1170.126. Defendant argued that there was insufficient evidence to prove beyond a reasonable doubt that he intended to cause great bodily injury; and the evidence instead demonstrated that he intended to stop Donna H. from using the phone. Defendant did not argue, however, that his intoxication prevented him from forming the intent to cause great bodily injury.
On February 13, 2019, the trial court held a hearing on the renewed recall petition. Characterizing the proceeding as a "do over of an eligibility determination" under Frierson, supra, 4 Cal.5th 225, the court found, beyond a reasonable doubt, that defendant intended to inflict great bodily injury and was thus ineligible for resentencing.
The trial court also found that defendant's habeas corpus petition, which raised the same issues as his renewed petition, was moot.
IV. DISCUSSION
Defendant characterizes his challenge on appeal as one directed to the sufficiency of the evidence in support of the trial court's finding that he intended to cause great bodily injury to Donna H. But he then divides this general contention into three separate arguments concerning: (1) his inability to cross-examine and rebut the trial evidence upon which the court relied in finding intent; (2) the need for deference on appeal to the jury's credibility determinations at trial; and (3) the sufficiency of the trial evidence to show intent beyond a reasonable doubt. A. Legal Principles Re: Eligibility Determinations Under Section 1170 .126
"[T]he Three Strikes Reform Act of 2012 (Proposition 36 or the Act) 'reduced the punishment to be imposed with respect to some third strike offenses that are neither serious nor violent, and provided for discretionary resentencing in some cases in which third strike sentences were imposed with respect to felonies that are neither serious nor violent.' (People v. Johnson (2015) 61 Cal.4th 674, 679 . . . (Johnson).) In addition to the prospective reduction of sentences for qualifying third strike convictions, 'the Act provides a procedure by which some prisoners already serving third strike sentences may seek resentencing in accordance with the new sentencing rules.' (Id. at p. 682.) The procedure allows an inmate currently serving a third strike sentence for a nonserious, nonviolent felony conviction to file a petition to recall the third strike sentence and be resentenced as a second strike offender. (§ 1170.126, subd. (b); People v. Perez (2018) 4 Cal.5th 1055, 1059 . . . (Perez); Johnson, [supra, 61 Cal.4th] at p. 682.)
"Not every inmate who is currently serving a third strike sentence for a nonserious, nonviolent felony is eligible for resentencing under the Act. (See §§ 667, subd. (e)(2)(C), 1170.12, subd. (c)(2)(C); People v. Estrada (2017) 3 Cal.5th 661, 667 . . . (Estrada).) Among other disqualifying factors, a petitioner is ineligible for resentencing if, '[d]uring the commission of the current offense, [he or she] used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.' (§§ 667, subd. (e)(2)(C)(iii), 1170.12, subd. (c)(2)(C)(iii); see Estrada, [supra, 3 Cal.5th] at p. 667; Johnson, supra, 61 Cal.4th at p. 682.) As our Supreme Court has explained, 'section 1170.12, subdivision (c)(2)(C)(iii) is best read as excluding from resentencing "broadly inclusive categories of offenders who, during commission of their crimes—and regardless of those crimes' basic statutory elements—used a firearm, were armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.' (Estrada, [supra, 3 Cal.5th] at p. 670, quoting People v. Blakely (2014) 225 Cal.App.4th 1042, 1055 . . . (Blakely).)
"In determining Proposition 36 eligibility on a petition for recall and resentencing, a trial court makes findings of fact drawn from the entire record of conviction and 'is not limited by a review of the particular statutory offenses and enhancements of which petitioner was convicted.' (People v. Bradford (2014) 227 Cal.App.4th 1322, 1332 . . . ; see People v. Cruz (2017) 15 Cal.App.5th 1105, 1110 . . . [(Cruz)].) Thus, '"the court may examine relevant, reliable, admissible portions of the record of conviction to determine the existence or nonexistence of disqualifying factors."' (Cruz, [supra, 15 Cal.App.5th] at p. 1110; see Blakely, supra, 225 Cal.App.4th at p. 1063.) As Estrada held, 'Proposition 36 permits a trial court to examine facts beyond the judgment of conviction in determining whether a resentencing ineligibility criterion applies.' (Perez, supra, 4 Cal.5th at p. 1063; see Estrada, supra, 3 Cal.5th at p. 672.)" (People v. Thomas (2019) 39 Cal.App.5th 930, 934-935, emphasis added.) B. Standard of Review
"Our Supreme Court has expressly held that in determining a petitioner's eligibility [for resentencing under section 1170.126], the trial court may rely on facts not found by a jury, and '[a] reviewing court, in turn, must defer to the trial court's determination if it is supported by substantial evidence.' (Perez, [supra, 4 Cal.5th] at p. 1059.)" (People v. Thomas, supra, 39 Cal.App.5th at p. 935.) "In reviewing the trial court's eligibility determination, we view the evidence in the light most favorable to the trial court's findings without reassessing the credibility of witnesses or resolving evidentiary conflicts." (Id. at pp. 935-936.) Thus, defendant's challenge on appeal to the sufficiency of the evidence in support of the trial court's intent finding is reviewed for substantial evidence. (Ibid.) C. Analysis
An appellant who challenges the sufficiency of the evidence must set forth in the opening brief a full and fair statement of the material evidence in the record on the point challenged, not just a statement of the facts favorable to the appellant. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881-882.) Defendant's two-page recitation of facts falls short of satisfying this fundamental burden.
1. Ability to Challenge Evidence of Intent
Defendant's complaint that "the issue of his intent [to injure] was never put through the crucible of cross-examination" suggests that defendant is asserting a Sixth Amendment confrontation rights challenge to the denial of his petition. In his reply, defendant denies making such a claim, but maintains that such untested evidence is inherently unreliable and should not have been considered by the trial court. But that contention was expressly rejected by the court in Perez, supra, 4 Cal.5th 1055, which held that "the Sixth Amendment does not bar a trial court from considering facts not found by a jury beyond a reasonable doubt when determining the applicability of a resentencing ineligibility criterion under Proposition 36." (Id. at p. 1063.) Thus, there is no merit to defendant's assertion that evidence of defendant's intent should not have been relied upon by the trial court.
2. Deference to Jury's Credibility Determinations
Defendant maintains that because the jury did not find him guilty of dissuading a witness and robbery—the two offenses that were based solely on Donna H.'s uncorroborated testimony—the jurors must have made an implicit determination that her testimony was not credible or reliable in general, absent corroboration from other witnesses, such as Detective Owen and Sebastian. According to defendant, we should defer to those implied credibility determinations—and not to the trial court's views of witness credibility—in conducting our substantial evidence analysis because the trial court's determinations were based solely on a "cold record," i.e., the same record from which we must make our substantial evidence determination. We reject defendant's argument.
Defendant's contention is contrary to the Supreme Court's holding in Perez, supra, 4 Cal.5th 1055, which directs us to defer to a trial court's eligibility determination, even when based on facts not found by the jury, so long as that determination is supported by substantial evidence. (Id. at p. 1059.) Here, as explained below, the evidence of defendant's intent to cause great bodily injury to Donna H., even though not considered by the jury on that specific issue, was sufficient to support the court's conclusion that defendant was ineligible for resentencing under section 1170.126 and we will affirm that finding.
In any event, defendant's contention that the jury must have rejected Donna H.'s testimony concerning the assault charged that was not corroborated by other witnesses is misguided, as Sebastian and Detective Owen corroborated Donna H.'s testimony by describing Donna H.'s statements to them about the assault just after it occurred and the appearance of her injuries on the night of the assault.
3. Substantial Evidence of Intent
Defendant's final contention is that even if the untested evidence of intent, including Donna H.'s testimony, could have been considered by the trial court, it is "questionable" whether that evidence constituted substantial evidence of intent. According to defendant's view of the trial evidence, it shows, at best, "an indiscriminate attack committed by an angry, drunken man, which caused injuries that did not require medical attention." We disagree.
When considered under the well-established principles governing our substantial evidence analysis, the trial evidence was sufficient to show that defendant intended to cause great bodily injury to Donna H. Generally, issues such as intent to injure are shown by circumstantial evidence, including the nature and extent of the victim's injuries and the manner in which they were inflicted. (See People v. Mincey (1992) 2 Cal.4th 408, 433 [intent to torture]; People v. Phillips (1989) 208 Cal.App.3d 1120, 1124 ["where one applies force to another in a manner reasonably certain to produce, and actually producing, great bodily injury, the requisite intent can be presumed, since the intent with which an act is done may be inferred from the circumstances attending the act, including the manner in which the act was done and the means used"].)
Here, the evidence showed that, after defendant came to Donna H.'s door and she went to the phone to make a call, defendant began hitting Donna H. with "powerful" blows at least 15 times. Five or more of those blows were directed at Donna H.'s head and multiple other blows were directed at her kidneys. The first such blow knocked Donna H. unconscious; and when she regained consciousness, defendant was standing over her threatening to kill her if she called the police. He then resumed striking her with his fists. After again threatening to kill Donna H. if she called the police, defendant delivered a final blow to the front of her head that caused her nose to bleed. According to Donna H., defendant "beat [her] half to death."
After the attack, Donna H. was bleeding from both her nose and chin. She told Detective Owen that defendant "beat the crap out of her," and he confirmed that she was bleeding from her nose and chin. Sebastian also confirmed that Donna H. was bleeding, although he could not determine the source of the blood. After the assault, Donna H. stated that her head was "killing" her and that she suffered from kidney pain through and including the time of trial.
Moreover, although Donna H. declined medical attention immediately after the attack, as confirmed by Sebastian and Detective Owen, she explained that she only did so because of concern about her parole status and drug addiction. And, after interviewing Donna H., the detective believed she needed immediate medical attention; but he did not to call the paramedics because Donna H. promised to seek such attention on her own the next day. Donna H. also initially told Sebastian, as recorded in the 911 call, that she needed medical attention.
Given the circumstances surrounding defendant's attack on Donna H. and the nature and extent of her injuries, a reasonable trier of fact could have concluded that defendant intended to and did inflict serious bodily injury on Donna H. Sufficient evidence therefore supported the trial court's determination that defendant was ineligible for resentencing.
Defendant nonetheless argues that the evidence of his alcohol consumption on the day of the attack prevented him from forming the specific intent to injure. Although it was undisputed that defendant had consumed alcohol prior to attacking Donna H., there was, at best, a factual conflict as to whether, as a result, he could form the specific intent to injure Donna H. Indeed, the only direct evidence on this point was defendant's own testimony that he was not inebriated and was able to control his inhibitions with Donna H. The trial court apparently resolved any such conflict against defendant; and we are required to do the same on appeal under the governing substantial evidence standard.
Although defendant did not raise this argument in the trial court, we will consider it as part of his challenge to the sufficiency of evidence. (People v. Rodriguez (1998) 17 Cal.4th 253, 262 [defendant may challenge sufficiency of evidence for the first time on appeal].) --------
V. DISPOSITION
The order denying defendant's renewed petition for recall of sentence is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
KIM, J. We concur:
RUBIN. P. J.
BAKER, J.