Opinion
F062838
02-01-2013
THE PEOPLE, Plaintiff and Respondent, v. EUGENE HAYDEN, SR., Defendant and Appellant.
Sylvia Whatley Beckham, 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, and Julie A. Hokans, Deputy Attorney 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Kern Sup. Ct. No. BF134948A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Kenneth C. Twisselman II, Judge.
Sylvia Whatley Beckham, 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, and Julie A. Hokans, Deputy Attorney General, for Plaintiff and Respondent.
INTRODUCTION
Appellant Eugene Hayden, Sr., appeals from a judgment of conviction of false imprisonment by violence or menace (Pen. Code, § 236) with three prior strike convictions (§§ 667, subds. (c)-(j), 1170.12, subds. (a)-(3)). We will affirm.
All further statutory references are to the Penal Code unless otherwise indicated.
STATEMENT OF THE CASE
On April 5, 2011, a Kern County jury returned a verdict finding appellant guilty of felony false imprisonment as charged in a multi-count information. In a bifurcated proceeding that same day, the court found that appellant had sustained three prior strike convictions.
On June 23, 2011, the court denied appellant's motion to exercise its discretion to reduce the false imprisonment conviction to a misdemeanor and further declined to dismiss any of the strike priors. That same day, the court sentenced appellant to 25 years to life in state prison.
On July 11, 2011, appellant filed a timely notice of appeal.
STATEMENT OF FACTS
Testimony of H.G.
In 2010, 60-year-old H.G. was a longtime manager at "Little Village," a low-income housing complex operated by the Kern County Housing Authority. Her duties included rent collection, processing applications for lease renewals, and making preliminary assessments of possible rules violations. Appellant's girlfriend, LaShawn Marshall, had been a tenant at the complex for at least six years. H.G. described Marshall as a good tenant who paid her rent and passed her annual review.
Prior to April 2010, H.G. had two contacts with appellant. The first occurred in 2009, when appellant entered H.G.'s office and said he knew her. H.G. said she had never met appellant before that visit. The second contact occurred in March 2010. Appellant contacted H.G. outside her office and asked that Marshall be allowed to "transfer" to another housing unit because a crime had recently occurred near Marshall's current unit. H.G. said a transfer had to be approved by a department of the Housing Authority. Appellant responded by saying that H.G. did have the ability or authority to carry out the transfer. H.G. testified that the request for transfer was precipitated by a murder that occurred in front of Marshall's apartment.
On April 7, 2010, H.G. was working in her office at the complex when she saw appellant at the window. Appellant told H.G. he wanted to talk about a transfer for Marshall, and she admitted him to the office. H.G. and appellant sat down in two chairs in the reception area, and appellant again asked H.G. about the transfer. H.G. advised appellant that he could look for "low-income housing that's in the private sector" if he was not getting a response from the "administration office." H.G. got up and asked appellant to leave. Appellant stood up and placed a beer bottle on a nearby piece of furniture. He approached H.G., grabbed her around the waist with his left hand, and twisted her right arm behind her back so that she could not move.
As appellant stood behind and to the side of H.G., he tried to whisper something into her ear. He then began to push her or throw her off balance. H.G. struggled with appellant and began screaming. However, appellant's hold on her body prevented her from moving her arms and legs. H.G. was wearing a dress and appellant pulled it up and grabbed her posterior. She said he then placed his hand in her underwear and touched her sexually. H.G. testified that these events occurred "fairly quickly," and she continued to scream as loudly as she could. Daniel Fondetti, a maintenance supervisor, entered the office and spoke to appellant, but appellant continued to restrain H.G. A second person entered the office, and appellant released his grip on H.G., who fell backwards. H.G. said someone walked her back to her office, but she was still crying and hysterical. An ambulance eventually took her to the hospital, where she completed a sexual assault examination. H.G. testified that, following her encounter with appellant, she had bruises on her arm and experienced pain in her right arm at the shoulder. Testimony of Daniel Fondetti
Daniel Fondetti testified that he had seen appellant around the apartment complex and said appellant had twice asked him about the procedure for moving a tenant. Fondetti said he referred appellant to H.G. During the noon hour on April 7, 2010, Fondetti and other members of the maintenance team were eating lunch when they heard H.G. screaming. Fondetti and a maintenance worker, Lupe Alaniz, went to the office, and Fondetti saw appellant struggling with H.G. Although H.G. and appellant were facing away from him, Fondetti could hear her scream and see her struggle to get away from appellant. Fondetti asked what was going on, and Alaniz grabbed appellant's arm. Appellant released H.G., and she fell forward. Other members of the maintenance team arrived and surrounded appellant. Fondetti called 911, and police arrived minutes later. Testimony of Guadalupe Alaniz
Guadalupe Alaniz said Fondetti was his supervisor and H.G. was his manager at the housing complex. During the noon hour of April 7, 2010, Alaniz and other maintenance crew members heard screaming in the office. Fondetti checked out the situation and summoned Alaniz to the reception area of the office. Alaniz saw that appellant's hands were wrapped around H.G., who was screaming hysterically. H.G. told Alaniz, "[G]et him off of me." Alaniz took hold of appellant's right hand and twisted appellant's arm back. According to Alaniz, appellant did not want to release H.G. and kept saying that he was just showing how much he "liked her." According to Alaniz, H.G. repeatedly said that appellant was going to rape her. Alaniz said other maintenance team members joined Fondetti and him in the office. They surrounded appellant and escorted him outside. Alaniz comforted H.G., who said she "shouldn't have let him in." Testimony of John F. Hoffman, Jr.
Maintenance team member John F. Hoffman, Jr., testified that he and fellow employees were in the lunch room when they heard screaming in the office during the noon hour of April 7, 2010. Hoffman said he and his co-workers immediately went to the office and asked appellant to get off H.G., but appellant did not comply for a "minute or two." Hoffman said when maintenance team members asked appellant to leave the premises, appellant became "a little confrontational." Hoffman said he helped H.G. go into her office, but she collapsed on the floor. Hoffman and Alaniz then helped her into a chair. Hoffman said she was hysterical, gasping for air, and crying. She repeatedly said that appellant tried to rape her. Testimony of Irving Garcia
Irving Garcia testified that he was the last member of the maintenance crew to arrive at the office during the noon hour on April 7, 2010. According to Garcia, appellant repeatedly said that H.G. was his friend, and that he was going outside. Garcia told appellant he had to leave the office. Appellant moved slowly but finally stepped outside. The police arrived a few minutes later and took appellant away. After appellant left, paramedics carried H.G. out of the office. Garcia said she was breathing deeply and crying. Testimony of Barton Garrison
Maintenance team member Barton Garrison also went to the office during the noon hour on April 7, 2010. He saw appellant hold H.G.'s left hand with his right hand and said she was screaming and struggling to get away from appellant. Garrison said Fondetti and other employees were telling appellant to let her go. According to Garrison, appellant did not immediately comply with their demands for release but eventually let H.G. go free. Garrison said he heard appellant say that H.G. was his friend, that he was not going to hurt her, and that he only wanted to talk to her. After appellant went outside, appellant and someone named "Jesse" began arguing with one another. The two men engaged in a pushing match until police showed up and took appellant away. After appellant departed the scene, Garrison went back inside and saw H.G. on the floor in front of her office. She was very upset, and Garrison could not understand much of what she was saying. Testimony of Mardi Sharples
Mardi Sharples, an asset manager for the Housing Authority, testified she was a friend of H.G.'s, and that they had arranged to meet at the complex and go to lunch on April 7, 2010. When Sharples arrived at the complex, everything was chaotic, and she saw appellant surrounded by maintenance team members in a grassy area outside the office. Sharples said several police cars were also present. Appellant tried to get Sharples's attention and said, "I wasn't trying to hurt her." At Fondetti's request, Sharples went inside to be with H.G. H.G. was seated on a chair inside her private office, and police officers were standing just outside the office. According to Sharples, H.G. was hysterical and hyperventilating. Sharples said her hair and clothes were "messed up" or "[d]isheveled," and it appeared that an earring had been "torn out of her ear." Sharples said the officers unsuccessfully attempted to calm H.G. H.G. repeatedly said, "[H]e tried to rape me." An ambulance took H.G. to the hospital and Sharples followed in her car. Testimony of Nancy Gutcher
Registered Nurse Nancy Gutcher testified that she conducted a sexual assault examination of H.G. at 2:15 p.m. on April 7, 2010. According to Gutcher, H.G. said she was working in an office when a man came in, grabbed her left upper arm and held her so that she could not move. H.G. told Gutcher the man restrained her with his arms and twisted her upper right arm behind her back. According to Gutcher, H.G. said she had tenderness on her arms and right shoulder joint. Gutcher observed bruising on H.G.'s upper arms and right shoulder.
Defense Evidence
Testimony of David Kessler
Kern County Deputy Sheriff David Kessler testified he was dispatched to the Housing Authority office shortly after noon on April 7, 2010. He saw other units at the scene upon his arrival and observed a male subject being surrounded by other subjects on a grassy area. Deputy Kessler went inside the office and took a statement from H.G. He described H.G. as "hysterical" and said she accused a man of trying to rape her. H.G. explained the man who tried to rape her came to the office to talk about his girlfriend, a tenant in the complex. H.G. said she let the man in and he, in turn, removed a bottle of beer from his back pocket and drank from it. H.G. told Kessler she struggled with the man in the reception area of the office, and he grabbed her right arm and twisted it behind her back. H.G. also said the man wrapped his other arm around her front and held onto her. H.G. told Kessler that she knew the man as "Gene" and said she had seen him around the complex. Testimony of Mark Warren and Jason Colbert
Kern County Deputy Sheriff Mark Warren testified he was dispatched to the scene shortly after noon on April 7, 2010, and assisted Deputy Jason Colbert in arresting appellant. Deputy Warren testified that he interviewed a number of witnesses at the scene. According to Warren, Hoffman heard appellant say that he was not trying to hurt or rape H.G. Warren removed two cell phones from appellant's person, and Colbert booked the devices into evidence. Deputy Colbert testified he was dispatched to the scene and was present at the time appellant was placed under arrest. Testimony of Ernest Scott Kinney
Defense investigator Ernest Scott Kinney testified that he collected appellant's personal property from the Kern County Jail on November 30, 2010. He found H.G.'s business card in appellant's wallet. The card had a phone number printed on the front side and a different number handwritten on the reverse side. That same day, Kinney met with district attorney investigator Kadell and examined two cell phones that officers had seized from appellant's person. Kinney determined that someone had made calls to the numbers on the business card during the 10:00 a.m. hour on April 7, 2010.
Kinney interviewed H.G. on September 8, 2010. H.G. said appellant "snapped" as if he were under the influence of PCP. She also said that appellant had a weapon but did not give details. According to H.G., appellant twisted her arms behind her back and placed one of his arms around her neck to choke her. H.G. said her coworkers entered the office while she was being choked. Kinney said H.G. blamed herself for what occurred because she admitted appellant into her office. The defense played a compact disk of Kinney's interview with H.G. and gave jurors a transcript of the interview. Testimony of Kim Millinder
Kern County Sheriff's Detective Kim Millinder testified that she interviewed H.G. and two witnesses and prepared a report. Detective Millinder testified she interviewed every witness who was listed in the initial report and questioned H.G. to determine whether she had a prior, consensual sexual relationship with appellant. Troy Trimble, a Housing Authority investigator, testified that a homicide had occurred near the apartment of LaShawn Marshall in early 2010. Trimble said appellant had talked to him about relocating Marshall and her children. Trimble testified that he tried to help appellant in getting Marshall relocated. Testimony of Kaytricia Hayden
Kaytricia Hayden testified that she was the daughter of appellant and Loretta Oats. Kaytricia said she resided with her mother at the "Little Village" housing project into her teen years. Kaytricia said her father lived at the complex "off and on." Kaytricia knew H.G., had spoken with her a number of times, and would visit with H.G. in the office when it was time to pay rent. According to Kaytricia, H.G. would ask about appellant's well-being, and Kaytricia believed that H.G. liked her father. Kaytricia said she had seen H.G. and appellant together in the office of the complex more than 50 times. Testimony of LaShawn Marshall
LaShawn Marshall testified that she had two daughters with appellant, and that she had lived in the "Little Village" complex for 13 years. She said appellant visited her in her apartment but did not live there. Between 2005 and 2011, Marshall would see H.G. each August to renew her lease with the Housing Authority. Marshall said she saw H.G. walk by her apartment on four occasions prior to appellant's arrest in connection with this case. The third occasion took place after a male neighbor was shot and killed. Several weeks before appellant's arrest, Marshall and appellant went to the office because appellant said H.G. was going to prepare some transfer papers. Marshall said H.G. stuck her head outside the office door and spoke to appellant. Testimony of Appellant
Appellant testified on his own behalf and admitted several convictions for robbery about 15 to 20 years prior to the instant case. Appellant said he had never been convicted of a sexual offense. He also testified that he had known H.G. for 27 or 28 years, and that she had been interested in him "as a man" since he was in his late teens. Appellant claimed that H.G. had given him the business card that bore her cell phone number on the reverse side. He said he programmed her number into his cell phone but used another name so that his girlfriend would not be aware it. According to appellant, he and H.G. had several contacts in the weeks leading to his arrest, and that they had engaged in flirting. Appellant said he spoke to H.G. inside her office on March 15, 2010. They discussed a transfer for Marshall, but H.G. refused, and appellant believed she was mad because Marshall and appellant were "together."
Appellant testified that he called H.G. in advance of their meeting on April 7, 2010. Appellant rode his bicycle to H.G.'s office, and he had two beers on his person. One was in his hand and the other was in his pocket. When he arrived, Fondetti and another male were outside the office and there were three women inside the office. H.G. opened the outer door, and the two of them walked into her office. She shut the inner door and told appellant he could not bring beer into the office. He drank both beers despite her admonition. At one point in their conversation, H.G. asked appellant whether he had been at, what she referred to as, his "baby mama's house." He said he had not been at Marshall's house, but H.G. accused him of lying. When appellant removed a keychain from his belt hoop and toyed with the keys, H.G. said one of the keys was for her complex. Appellant said that H.G. demanded to see the keys and they scuffled over the keychain. During the scuffle, H.G. was bent over and started screaming. Fondetti told appellant to let go of H.G., but appellant claimed he could not do so because his finger was caught in the key loop that H.G. was struggling over.
When someone asked how appellant gained entry to the office, appellant said H.G. "let me in here." Fondetti asked H.G. whether she was all right and, according to appellant, H.G. hollered, "Get him [appellant] out of here." Appellant said he did not hear H.G. accuse him of rape. Appellant said he took his empty beer bottle outside and placed it next to his bicycle. He also said he left the opened beer inside the office. Deputy Colbert asked appellant whether he had an intimate relationship with H.G., and appellant answered and referred to her as a friend, but he denied having sex with her. Appellant said he advised Deputy Colbert that he had consumed several beers. Appellant denied that he was drunk or under the influence of drugs that day. He further denied that he placed his hands under H.G.'s dress or twisted her arm behind her back. Appellant said he did not think to tell Colbert that he and H.G. struggled over the keys.
Rebuttal Evidence
Fondetti reaffirmed that he saw appellant assaulting H.G. in the hallway outside of H.G.'s office. He did not see H.G. and appellant together inside her office. He did not see other females in the reception area of the office. Fondetti said he did not see a beer bottle in appellant's hands or a keychain on appellant's belt when appellant left the office. Fondetti also testified that he did not hear the rustling of keys.
Deputy Colbert testified that he spoke to appellant on the day of the charged offenses, and appellant claimed to have engaged in sexual intercourse with H.G. about a month earlier. Appellant claimed he engaged in sex with H.G. because he wanted "better housing" for the mother of his children. According to Colbert, appellant later changed his story and denied having intercourse with her. Colbert testified that appellant never said anything about a set of keys.
DISCUSSION
I. THE JUDGMENT OF CONVICTION WAS SUPPORTED BY SUFFICIENT EVIDENCE OF VIOLENCE OR MENACE BEYOND THE FORCE NECESSARY TO EFFECT THE RESTRAINT.
Appellant contends the judgment must be reversed or the level of the offense reduced because there was insufficient evidence to show that he engaged in violence or menace beyond the force necessary to effect the restraint.
A. Specific Contention
Appellant acknowledges that the jury found him guilty of false imprisonment by means of violence or menace. He specifically concedes: "Here, the evidence amply established the commission of false imprisonment." However, viewing the evidence in the light most favorable to the verdict, appellant contends there is insufficient evidence of felony false imprisonment: "There was no evidence of a threat or conduct constituting menace above that force necessary for the restraint. The evidence does not show that appellant used force beyond that necessary to effect the restraint and, therefore, the evidence is insufficient to support a felony conviction for false imprisonment by violence. Because there is lacking evidence on a necessary element of the alleged offense, the conviction must be reversed on grounds of insufficient evidence. Alternatively, the verdict may be modified to reflect the lesser included offense of misdemeanor false imprisonment and the matter should be remanded for resentencing."
B. Law of False Imprisonment
Section 236 defines the offense of misdemeanor false imprisonment as "the unlawful violation of the personal liberty of another." (See, e.g., People v. Matian (1995) 35 Cal.App.4th 480, 484 (Matian).)"The crime of false imprisonment becomes a felony '[i]f such false imprisonment be effected by violence, menace, fraud, or deceit ....' (Pen. Code, § 237.)" (Matian, supra, 35 Cal.App.4th at p. 484.) "[T]he essential element of false imprisonment is restraint of the person. Any exercise of express or implied force which compels another person to remain where he does not wish to remain, or to go where he does not wish to go, is false imprisonment. [Citation.]" (People v. Bamba (1997) 58 Cal.App.4th 1113, 1123 (Bamba).)
"Force is an element of both felony and misdemeanor false imprisonment. Misdemeanor false imprisonment becomes a felony only where the force used is greater than that reasonably necessary to effect the restraint. In such circumstances the force is defined as 'violence' with the false imprisonment effected by such violence a felony." (People v. Hendrix (1992) 8 Cal.App.4th 1458, 1462; People v. Castro (2006) 138 Cal.App.4th 137, 140.)
Thus, "the use of violence-i.e., excessive force-or menace" elevates the offense to a felony. (People v. Babich (1993) 14 Cal.App.4th 801, 808 (Babich))In this context, " 'violence' means ' "the exercise of physical force used to restrain over and above the force reasonably necessary to effect such restraint." ' [Citations.] [Also in] this context, 'menace' means ' "a threat of harm express or implied by word or by act." ' [Citations.]" (Bamba, supra, 58 Cal.App.4th at p. 1123; People v. Dominquez (2010) 180 Cal.App.4th 1351, 1359; Matian, supra, 35 Cal.App.4th at p. 484.) Distinguishing Matian, this court has held: "An express or implied threat of harm does not require the use of a deadly weapon or an express verbal threat to do additional harm. Threats can be exhibited in a myriad number of ways, verbally and by conduct." (People v. Aispuro (2007) 157 Cal.App.4th 1509, 1512-1513 [opn. of Kane, J.].)
"All elements of misdemeanor false imprisonment are also elements of the felony; the felony cannot be committed without necessarily committing the misdemeanor. The misdemeanor is therefore a lesser included offense of the felony. [Citation.]" (Babich, supra, 14 Cal.App.4th at p. 807; Matian, supra, 35 Cal.App.4th at p. 487.)
C. Law of Sufficiency of the Evidence
"In assessing a claim of insufficiency of evidence, the reviewing court's task is to review the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence that is-evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Johnson (1980) 26 Cal.3d 557, 578 [].) The federal standard of review is to the same effect: Under principles of federal due process, review for sufficiency of evidence entails not the determination whether the reviewing court itself believes the evidence at trial establishes guilt beyond a reasonable doubt, but, instead, whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 317-320 [].) The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence. (People v. Stanley (1995) 10 Cal.4th 764, 792 [].) ' "Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence [citations], it is the jury, not the appellate court[,] which must be convinced of the defendant's guilt beyond a reasonable doubt. ' " If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." ' [Citations.]" ' (Id. at pp. 792-793.)" (People v. Rodriguez (1999) 20 Cal.4th 1, 11.) " ' "A reviewing court neither reweighs evidence nor reevaluates a witness's credibility." ' " (People v. Booker (2011) 51 Cal.4th 141, 172.)
D. Analysis
Appellant contends the force he used to restrain H.G. was "an uninvited bear hug, pinning her arms to her sides or holding them behind her back (according to H.G.), and bending her slightly forward as if she could be knocked off her feet." Appellant submits there was no additional force beyond that used to restrain. H.G. testified that she asked appellant to leave her office. He responded by pulling a beer bottle from his rear pocket and placing it on a desk. H.G. said that appellant approached her and grabbed her around her waist with his left hand. At a later point he grabbed her right arm with his right hand and twisted it behind her back. H.G. said she felt her arm being twisted behind her back and added, "I was in a position where I couldn't move." H.G. explained that her body was turned to the side when appellant put her arm behind her back. H.G. said she tried to get loose, but appellant "was kind of pushing me, pushing me as if to throw me off balance and towards the rear of where we were standing." H.G. said she contemplated a counterattack against appellant but explained, "I was in a paralyzing hold, a hold where I could not move either of my arms and even my legs." In response to the prosecutor's questions, she reiterated that appellant used one of his arms to hold her arm behind her back and used his other arm to grip her "around the waist and to the side." H.G. added that she was in "a paralyzing position" and was bent over "[a] little bit."
The direct evidence of a single witness entitled to full credit is sufficient for proof of any fact. (Evid. Code, § 411.) When a rational fact finder could conclude that a criminal defendant's acts or words expressly or impliedly threatened harm, the fact finder may find that there is menace sufficient to make false imprisonment a felony. (People v. Wardell (2008) 162 Cal.App.4th 1484, 1491.) Appellant fails to address the role of menace in this case. Instead, he focuses solely on the element of force, asserting that "H.G. was restrained of her liberty by the way appellant held her and nothing more; there was no additional force." Appellant is mistaken. From H.G.'s testimony, the jury could reasonably conclude that appellant initially restrained H.G. by grabbing her waist with his left hand and then employed additional force by taking her right arm with his right hand and twisting it behind her back. Appellant essentially characterizes his conduct as a single exertion of force, i.e., "an uninvited bear hug, pinning her arms to her sides or holding them behind her back ..., and bending her slightly forward as if she could be knocked off her feet."
Appellant's characterization of his conduct is not controlling. In California, it is the exclusive province of the jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) "A reversal for insufficient evidence 'is unwarranted unless it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict. [Citation.]" (Ibid.) "In making our determination, we do not reweigh the evidence; the credibility of witnesses and the weight to be accorded to the evidence are matters exclusively within the province of the trier of fact." (People v. Stewart (2000) 77 Cal.App.4th 785, 790.)
The jury could reasonably conclude that appellant's hold of H.G. around the waist was the force necessary to restrain her and that his twisting of her arm behind her back, his bending over the top of her, and his pushing her forward constituted force beyond that necessary to restrain her. The judgment of conviction of felony false imprisonment was supported by substantial evidence.
II. THE TRIAL COURT DID NOT COMMIT REVERSIBLE ERROR BY FAILING TO INSTRUCT THE JURY SUA SPONTE ON ACCIDENT OR MISFORTUNE.
Appellant contends the trial court committed reversible error by failing to instruct sua sponte on accident or misfortune (CALCRIM No. 3404).
A. Appellant's Specific Contention
Appellant acknowledges the jury found him guilty of false imprisonment by violence or menace. However, he maintains there was evidence to explain "that what appeared to be a violent or menacing restraint of the alleged victim was actually the result of an accident or appellant's misfortune in having his finger stuck in a ring of keys which the alleged victim grabbed and would not relinquish." Based on this evidence, appellant contends the trial court had a sua sponte duty to instruct the jury on the defense of accident or misfortune. Appellant acknowledges that since the time of trial, the Supreme Court has overruled cases which required sua sponte instruction on accident. Therefore, he argues in the alternative that his trial counsel was ineffective by failing to request an instruction on accident.
B. Law of Accident
Section 26 states in part: "All persons are capable of committing crimes except those belonging to the following classes: .. ."Five - Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence."
CALCRIM No. 3404 states in relevant part:
Appellant cites to former CALJIC No. 4.45 [accident and misfortune] in his discussion. CALJIC No 4.45 stated: "When a person commits an act or makes an omission through misfortune or by accident under circumstances that show [no] [neither] [criminal intent [n]or purpose,] [nor] [[criminal] negligence,] [he] [she] does not thereby commit a crime." "The California jury instructions approved by the Judicial Council are the official instructions for use in the state of California." (Cal. Rules of Court, rule 2.1050(a).) "Use of the Judicial Council instructions is strongly encouraged." (Cal. Rules of Court, rule 2.1050(e).)
"[The defendant is not guilty of_if (he/she) acted [or failed to act] without the intent required for that crime, but acted instead accidentally. You may not find the defendant guilty of
____ unless you are convinced beyond a reasonable doubt that (he/she) acted with the required intent.]"
In People v. Anderson (2011) 51 Cal.4th 989, 996-999 (Anderson), arising from a November 2003 murder committed during the course of a felony robbery, the Supreme Court held a trial court has no obligation to provide a sua sponte instruction on accident where the criminal defendant's theory of accident is an attempt to negate the intent element of the charged crime. The Supreme Court observed: "A trial court's responsibility to instruct on accident therefore generally extends no further than the obligation to provide, upon request, a pinpoint instruction relating the evidence to the mental element required for the charged crime." (Id. at p. 997.)
C. Analysis
Appellant implies that the rule of Anderson, supra, 51 Cal.4th 989 is inapplicable here because "appellant's testimony was offered to rebut more than the mens rea element, i.e., specific intent to restrain, confine or compel a person to stay. The defense evidence was offered also to rebut the part of the actus reus for the charged offense, i.e., restraint, confinement or compelling the alleged victim to stay by means of violent or menacing conduct, as opposed to mere force." (Italics in original.)
We initially note that the premise of appellant's contention is not supported by case law. "The accident defense is a claim that the defendant acted without forming the mental state necessary to make his actions a crime." (People v. Gonzalez (1999) 74 Cal.App.4th 382, 390, italics added, citing People v. Lara (1996) 44 Cal.App.4th 102, 110 [], disapproved on another point in Anderson, supra, 51 Cal.4th at p. 998, fn. 3).) We further note that the trial court properly instructed the jury on the formation of intent by giving CALJIC Nos. 3.30 [concurrence of act and general criminal intent], 3.31.5 [mental state], and 9.60 [false imprisonment by force and violence (§ 236)].
In reading CALJIC No. 3.30, the court stated: "In the crimes charged in counts 3 and 4 [false imprisonment] ... there must exist a union or joint operation of act or conduct and general criminal intent. General criminal intent does not require an intent to violate the law. When a person intentionally does that which the law declares to be a crime, he is acting with general criminal intent even though he may not know that his act or conduct is unlawful." In reading CALJIC No. 3.31.5, the court stated that in the crime charged in count four, "there must exist a union or joint operation of act or conduct and a certain mental state in the mind of the perpetrator. Unless this mental state exists, the crime to which it relates is not committed." In reading CALJIC No. 9.60, the court stated as to count four: "In order to prove this crime, each of the following elements must be proved: one, a person intentionally and unlawfully restrained, confined, or detained another person, compelling her to stay or go somewhere; two, the other person did not consent to the restraint, confinement, or detention; and, three, the restraint, confinement, or detention was accomplished by violence or menace."
Appellant has not cited, and we have been unable to find, any case authority applying the defense of accident to the actus reus of a charged offense. Although CALJIC Nos. 3.30, 3.31.5, and 9.60 did not use the term "accident," these instructions adequately addressed the mental element of false imprisonment. Assuming the existence of a requirement to request an instruction on accident or misfortune, appellant alternatively contends his trial counsel was ineffective by failing to request CALJIC No. 4.45 (or, presumably, its more recent counterpart, CALCRIM No. 3404).
"The burden of proving ineffective assistance of counsel is on the defendant." (People v. Babbitt (1988) 45 Cal.3d 660, 707.) A criminal defendant must show both deficient performance "that trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates," and prejudice "that it is reasonably probable a more favorable determination would have resulted in the absence of counsel's failings." (People v. Price (1991) 1 Cal.4th 324, 386.) The defendant "must carry his burden of proving prejudice as a 'demonstrable reality,' not simply speculation as to the effect of the errors or omissions of counsel." (People v. Williams (1988) 44 Cal.3d 883, 937.) " 'It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding....' " (People v. Ledesma (1987) 43 Cal.3d 171, 217.) When a defendant cannot establish the prejudice prong of this test, it is unnecessary to consider whether counsel's performance was deficient. (People v. Cox (1991) 53 Cal.3d 618, 656, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390.)
Thus, appellant must demonstrate a reasonable probability that a more favorable determination would have resulted had counsel requested a jury instruction on accident. A review of the record reveals that appellant has failed to carry this burden. First, the court thoroughly instructed the jury on the mental element of false imprisonment as charged in count four by giving CALJIC Nos. 3.30, 3.31.5, and 9.60. Second, the graphic testimony of H.G. militated against the giving of an instruction on accident. As noted in issue I ante, H.G. testified that she asked appellant to leave her office. H.G. said that appellant approached her and grabbed her around her waist with his left hand. At a later point he grabbed her right arm with his right hand and twisted it behind her back. H.G. said she felt her arm being twisted behind her back and added, "I was in a position where I couldn't move." H.G. explained that her body turned to the side when appellant put her arm behind her back. H.G. said she tried to get loose, but appellant "was kind of pushing me, pushing me as if to throw me off balance and towards the rear of where we were standing." H.G. said she contemplated a counterattack against appellant but explained, "I was in a paralyzing hold, a hold where I could not move either of my arms and even my legs." In response to the prosecutor's questions, she reiterated that appellant used one of his arms to hold her arm behind her back and used his other arm to grip her "around the waist and to the side." H.G. added that she was in "a paralyzing position" and was bent over "[a] little bit."
For his part, appellant testified that H.G. approached him in her office and asked to see the keys he was holding in his right hand. Appellant said H.G. grabbed his keys as he prepared to leave her office. He said his finger was still in the loop when she grabbed the keys. According to appellant, the loop twisted or twirled when she grabbed the keys. Appellant said this commenced a scuffle over the keys, which caused H.G. to bend over. Appellant admitted that he and H.G. wrestled over the keys. Appellant said he finally "got the keys and snatched them from her and stuff." Appellant said he heard Fondetti telling him to let go of H.G. However, he did not comply "[b]ecause she had my finger and had my keys still." Appellant admitted that he was still tangled with H.G. when her coworkers entered the office. Appellant's characterization of his encounter with H.G. as some sort of informal wrestling match over a keychain between longtime acquaintances simply did not square with H.G.'s vivid description of her arm being twisted behind her back. Moreover, Lupe Alaniz testified he saw appellant on top of H.G., and that she was hunched over at the waist. Although Alaniz could not see appellant's hands, he did see appellant's arms. Alaniz said appellant was standing behind H.G. with his left arm extended over the left side of body and his right arm "tucked in the front. So he actually had his hands wrapped around her." Although H.G. was screaming and accusing appellant of rape, appellant repeatedly said that he was showing H.G. how much he liked her. Alaniz said he tried to get appellant off of H.G. and eventually "got his right hand, and I twisted his arm back."
Given the disparate versions of events, defense counsel could have reasonably concluded that it was far more advantageous for appellant's defense to rely on the law set forth in CALCRIM No. 3476 [right to defend personal property] than to characterize the incident as an "accident," which a jury may have rejected out of hand. Finally, even if the court had instructed the jury in the concept of "accident," it is not reasonably likely that the jury would have characterized appellant's encounter with H.G. as some sort of chance happening with no deliberate intent.
Appellant's trial counsel did not render ineffective assistance by declining to request CALCRIM No. 3404 under the facts and circumstances of this case.
III. THE SENTENCE OF 25 YEARS TO LIFE IN STATE PRISON DID NOT CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT.
Appellant contends the trial court did not rationally balance the mandate of the "Three Strikes" law for increased punishment with appellant's constitutional protection against cruel and unusual punishment.
A. Appellant's Specific Contention
Appellant offers a summary of his history in the reply brief on appeal. He states: "Appellant's first strike was based on appellant being convicted of robbery on August 11, 1983, at the age of 18, and sentenced to two years in prison on September 6, 1983. Appellant was paroled on August 24, 1984, and discharged from parole on September 23, 1985, at the age of 20, without any violation. The second and third strikes are based on appellant's convictions for two counts of second degree robbery on January 19, 1996, committed when appellant was 31 years old. On April 10, 1996, appellant was sentenced to an aggregate term of 11 years. Appellant was paroled on December 27, 2004, at the age of 40. Appellant was arrested on July 29, 2005, and parole was revoked on August 16, 2005. Appellant was re-paroled on September 27, 2005, and discharged [on] parole on February 25, 2008, without further violation. [¶] Appellant was 46 years old at the time of sentencing in this case, on June 23, 2011. It was nearly 30 years since appellant's first robbery conviction when he was a teenager, and 15 years since the two additional robbery convictions. Appellant had not consistently committed felony offenses, as most of his convictions were for misdemeanors or mere infractions."
Appellant contends the trial court abused its discretion by denying his request to strike his prior strike convictions or reduce his section 236 conviction to a misdemeanor and further contends the "life sentence the court imposed after denying the motion constituted cruel and unusual punishment."
B. Procedural History
The probation officer's report filed June 23, 2011, set forth the following criminal history for appellant:
(1) A 1974 juvenile adjudication for trespass, with a disposition of wardship and probation;
(2) A 1976 juvenile adjudication for trespass, with a disposition of continued probation;
(3) A 1977 juvenile adjudication for petty theft, with a disposition of continued probation;
(4) A 1981 juvenile adjudication for burglary and carrying a concealed weapon, with a disposition of continued probation and commitment to a forestry camp;
(5) A 1983 adult conviction for being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (b)), resulting in three years misdemeanor probation and 60 days in county jail;
(6) A 1983 conviction for robbery (§ 211), his first strike, resulting in a two-year prison term and parole on August 24, 1984;
(7) 1990 convictions for violation of a driver's license law (Veh. Code, § 12500) and falsely identifying himself to an officer (§ 148.9), resulting in probation and a jail term;
(8) A 1990 conviction for being under the influence of a controlled substance, resulting in probation and a jail term;
(9) 1991 convictions for reckless driving (Veh. Code, § 23103, subd. (a)), violating a stop sign law (Veh. Code, § 12500, subd. (a)), and violating a driver's license law, resulting in probation and a fine, with a subsequent probation violation resulting in a jail term in 1992;
(10) 1991 convictions for a license violation (Veh. Code, § 12500, subd. (a)) and failure to stop (Veh. Code, § 22450), resulting in a fine;
(11) 1992 convictions for a license violation (Veh. Code, § 12500, subd. (a)), taillight violation (Veh. Code, § 24601), and giving false information to an officer (Veh. Code, § 31), resulting in probation and a fine, followed by a violation of probation and jail time;
(12) A 1992 conviction for driving with a revoked or suspended license (Veh. Code, § 14601.1) resulting in probation and fine followed by a violation of probation and jail time;
(13) 1992 convictions for driving with a revoked or suspended license with a prior (Veh. Code, § 14601.1), operating a motorcycle without a helmet (Veh. Code, § 27803), and driving without a registration (Veh. Code, § 4000, subd. (a)), resulting in probation followed by a probation violation and jail;
(14) A 1993 conviction for driving without a license (Veh. Code, § 12500, subd. (a)), resulting in jail and a fine;
(15) A 1993 conviction for possession of a concealed weapon (former Pen. Code, § 12020, subd. (a)), resulting in felony probation and jail followed by a probation violation;
(16) A 1994 conviction for driving with a revoked or suspended license (Veh. Code, § 14601.1, subd. (a)), resulting in probation and jail;
(17) 1994 convictions for reckless driving (Veh. Code, § 23103, subd. (a)) and driving with a revoked or suspended license (Veh. Code, § 14601.1, subd. (a)), resulting in probation and jail; and
(18) 1995 convictions for two counts of second-degree robbery (§ 212.5, subd. (c)) with a prior serious felony conviction (§ 667, subd. (a)) and a prior strike conviction (§ 667, subd. (e)), resulting in 11 years in state prison, parole, a violation of parole, further parole, and discharge from parole.
At the hearing on June 23, 2011, the court considered appellant's request to dismiss his strike priors or reduce his section 236 conviction to a misdemeanor. After reviewing the pleadings and a redacted handwritten letter from appellant, and considering the respective arguments of counsel, the court expressly acknowledged that it was "well aware" of its discretion under section 1385 and denied the request to dismiss strikes and/or reduce the section 236 conviction to a misdemeanor. The court stated:
"And the Court must consider whether, in light of the nature and circumstances of the present felony and prior serious and/or violent felony convictions and the particulars of the defendant's background, his character and prospects, a defendant may be deemed outside of the scheme['s] spirit in whole or in part and, hence, should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.
"There's been a lot of discussion about whether [H.G.] - the victim's version of the event is more believable, whether the defendant's version of the event is more believable with regard to trying to get his keys back. The jury heard all this evidence. And the jury's verdict is consistent with accepting both the victim's version as well as the witnesses who came into the room and saw the defendant and the victim struggling. All that evidence is substantial evidence to support that this was a violent felony and supported a felony conviction for the violence.
"And the defendant has a criminal history that's already been described both in the written documents as well as the argument of counsel. The defendant is clearly on the revolving-door plan with regard to his having been in and out of custody since about 1974, when he was first made a ward of the Court in the Juvenile Court.
"We don't have a situation where a person committed some violent crimes when he was young, served his time, then became a productive member of our community and had a lengthy period of time where he has proven that he has reformed, that he has rehabilitated, that he is back on track to be a productive and law-abiding citizen. And the defendant doesn't come close to meeting that type of a description. [¶] So considering all the circumstances, I am exercising my discretion and denying the [Romero]motion."
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
C. Law of "Three Strikes"
Appellant initially contends the trial court abused its discretion by failing to rationally balance all relevant factors with the mandate for increased punishment when it declined to strike any of his prior strike convictions or reduce his section 236 conviction to a misdemeanor.
Section 1385 grants trial courts the discretion to dismiss a prior strike conviction if the dismissal is in furtherance of justice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) " 'A court's discretion to strike [or vacate] prior felony conviction allegations [or findings] in furtherance of justice is limited. Its exercise must proceed in strict compliance with ... section 1385[, subdivision ](a) ....' " (People v. Williams (1998) 17 Cal.4th 148, 158.) The Three Strikes law "was intended to restrict courts' discretion in sentencing repeat offenders." (Romero, supra, 13 Cal.4th at p. 528; People v. Garcia (1999) 20 Cal.4th 490, 501.) The Three Strikes law establishes " 'a sentencing requirement to be applied in every case where the defendant has at least one qualifying strike' " unless the sentencing court finds a reason for making an exception to this rule. (People v. Carmony (2004) 33 Cal.4th 367, 377.) Under California law, there are "stringent standards that sentencing courts must follow in order to find such an exception." (Ibid.)To dismiss a prior strike conviction, "the court in question must consider whether, in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams, supra, 17 Cal.4th at p. 161.)
A trial court's decision not to dismiss a prior strike conviction is reviewed "under the deferential abuse of discretion standard." (People v. Carmony, supra, 33 Cal.4th at p. 374.) An abuse of discretion is established by demonstrating that the trial court's decision is " irrational or arbitrary. It is not enough to show that reasonable people might disagree about whether to strike one or more of his prior convictions." (People v. Myers (1999) 69 Cal.App.4th 305, 310.) When the record shows the trial court considered relevant factors and acted to achieve legitimate sentencing objectives, the court's decision will not be disturbed on appeal. (Ibid.)
Given the trial court's consideration of the pleadings, the redacted handwritten letter from appellant, and the respective arguments of counsel, we cannot say that the trial court's decision was irrational or arbitrary. The court did not abuse its discretion by declining not to dismiss a prior strike conviction or reduce appellant's section 236 conviction to a misdemeanor.
D. Law of Cruel and Unusual Punishment
Appellant goes on to argue that the sentence the court imposed after declining to exercise its discretion under section 1385 "constitutes cruel and unusual punishment for the offense committed by this offender."
1. The State Constitution
A statutory punishment may violate the constitutional prohibition against cruel and unusual punishment if it is grossly disproportionate to the offender's culpability. (People v. Dillon (1983) 34 Cal.3d 441, 477-478.) The defendant must show the sentence is out of all proportion to the offense and "that it offends fundamental notions of human dignity." (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) This is done by analyzing the nature of the offense and the offender, comparing the punishment with the penalty for more serious crimes in the same jurisdiction, and comparing the punishment with the penalty for the same offense in other jurisdictions. (Id. at pp. 425-427.)
The purpose of the Three Strikes law is not to subject a criminal defendant to a long sentence merely on the basis of the latest offense. Rather, the purpose is to punish recidivist behavior. (People v. Diaz (1996) 41 Cal.App.4th 1424, 1431; People v. Kinsey (1995) 40 Cal.App.4th 1621, 1630-1631.) Habitual offender statutes have withstood constitutional scrutiny based on assertions of cruel and unusual punishment, as well as claims of disproportionate sentence. (See People v. Ayon (1996) 46 Cal.App.4th 385, 398-400, disapproved on other grounds in People v. DeLoza (1998) 18 Cal.4th 585.)
As respondent has noted, a number of courts have affirmed lengthy three strikes prison terms. The courts generally reason that a life term is not cruel and unusual based on the defendant's status as a habitual criminal in combination with his or her current offense. (E.g., People v. Ingram (1995) 40 Cal.App.4th 1397, 1415-1416 (Ingram), disapproved on other grounds in People v. Dotson (1997) 16 Cal.4th 547, 559-560, fn. 8.)
Appellant's substantial criminal history and inability to remain free from criminal activities makes him a strong candidate for punishment under the Three Strikes law. In Ingram, this court upheld a defendant's 61-year sentence under the Three Strikes law and enhancement statutes against a cruel-and-unusual-punishment-based challenge. Such a defendant "is precisely the type of offender from whom society seeks protection by the use of recidivist statutes. There is no indication defendant desires to reform or to change his criminal behavior." (Ingram, supra, 40 Cal.App.4th at p. 1415; accord, People v. Cooper (1996) 43 Cal.App.4th 815, 826 (Cooper) [25-year-to-life term for defendant with a lengthy criminal history, convicted of a nonviolent, nonserious felony, was not cruel or unusual given defendant's "intractable recidivism, coupled with his current offense ....]")
The habitual nature of appellant's conduct is critical in assessing his culpability. In enacting section 667, "the Legislature clearly intended to segregate habitual serious felony offenders who, like [appellant], have not been rehabilitated or deterred from further criminal conduct as a result of imprisonment." (Ingram, supra, 40 Cal.App.4th at pp. 1415-1416.) The point at which the criminal propensity will be sanctioned and the extent of the sanction are largely within legislative discretion; such recidivist measures have been long recognized as constitutional. (Rummel v. Estelle (1980) 445 U.S. 263, 275, 284-285 (Rummel); In re Rosencrantz (1928) 205 Cal. 534, 537-540.)
We considered arguments similar to those raised by appellant in the case of Cooper, supra, 43 Cal.App.4th 815. The lengthy discussion of the issues raised in Cooper is applicable to the present case, except for minor differences in the circumstances pertaining to each defendant, and we adopt it as controlling here. As this court pointed out in Cooper, the sentence was imposed not just for the current offense but for appellant's recidivism. (Id. at p. 825.) As we observed in Cooper, "Appellant's intractable recidivism, coupled with his current offense, justify the term imposed." (Id. at p. 826.)
We reject appellant's claim that his sentence under the Three Strikes law constitutes cruel and/or unusual punishment under the California Constitution.
B. Federal Constitution
Appellant also contends his sentence is unconstitutionally disproportionate under the Eighth Amendment. We disagree.
The United States Supreme Court addressed the question of whether the Eighth Amendment includes a proportionality guarantee in noncapital cases in Harmelin v. Michigan (1991) 501 U.S. 957. While Harmelin did not include a majority opinion with respect to the issue, two justices concluded the Eighth Amendment contains no proportionality guarantee (id. at p. 965 (opn. of Scalia, J.)). Three other justices concluded the amendment forbids only those sentences which are " 'grossly disproportionate' " to the crime (id. at p. 1001 (opn. of Kennedy, J.)). Even those justices recognizing a guarantee of proportionality review stressed that, outside the context of capital punishment, successful challenges to particular sentences are " ' "exceedingly rare" ' " because of the "relative lack of objective standards concerning terms of imprisonment ." (Ibid.)
To the extent that review of proportionality of a sentence is applicable for Eighth Amendment purposes, we reject appellant's argument for the same reason that his state constitutional claim fails. In addition, we find the case of Rummel, supra, 445 U.S. 263, to be instructive. In Rummel, the United States Supreme Court addressed the constitutionality of a Texas recidivist statute requiring life imprisonment upon conviction of a third felony. Over the course of nine years, defendant Rummel had been convicted of fraudulent use of a credit card to obtain $80 worth of goods or services, passing a forged check in the amount of $28.36 and obtaining $120.75 by false pretenses. (Id. at pp. 265-266.) Rummel argued that life imprisonment was "grossly disproportionate" to the three felonies committed. In response, the Supreme Court concluded the mandatory life sentence did not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments. (Id. at p. 285.) Rummel received a life sentence for committing a relatively minor felony after committing two other relatively minor felonies.
In Ewing v. California (2003) 538 U.S. 11, 29-31 (Ewing), the United States Supreme Court held that the cruel and unusual punishment clause of the federal Constitution contains a narrow proportionality principle that prohibits grossly disproportionate sentences. (Id. at p. 23.) The Ewing court nevertheless upheld a 25-year-to-life sentence under the Three Strikes law for a defendant with prior burglary and robbery convictions who shoplifted three golf clubs. (Id. at pp. 17-18, 29-31.) In Lockyer v. Andrade (2003) 538 U.S. 63, 66-68, 77, the Supreme Court held two consecutive terms of 25 years to life under the California Three Strikes law for thefts of videotapes were not grossly disproportionate.
Even if we were to accept appellant's assertion that the instant felonies were relatively minor, we note the sentence imposed on appellant was for committing the current offense after committing multiple previous serious felonies. Appellant's sentence of 25 years to life in state prison does not run afoul of the Eighth Amendment.
Having received an indeterminate term of 25 years to life under the Three Strikes law, defendant may fit the criteria for eligibility for resentencing under newly enacted section 1170.126. The resentencing provisions under that section are triggered by filing a timely petition for recall of sentence before the trial court that entered the judgment of conviction in the defendant's case. While we have denied appellant's postsubmission request to file supplemental briefing on this point, nothing in this opinion is a procedural bar to the filing of an appropriate petition in the superior court.
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DISPOSITION
The judgment is affirmed.
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Poochigian, J.
WE CONCUR: _________
Levy, Acting P.J.
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Franson, J.