Opinion
G045286
02-15-2012
THE PEOPLE, Plaintiff and Respondent, v. MIGUEL ANGEL HERNANDEZ, Defendant and Appellant.
Correen Ferrentino, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 10NF0822)
OPINION
Appeal from a judgment of the Superior Court of Orange County, Richard F. Toohey, Judge. Affirmed.
Correen Ferrentino, under appointment by the Court of Appeal, for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
A jury found defendant Miguel Angel Hernandez guilty of violating Penal Code section 273.5, subdivision (a), inflicting injury on mother of child resulting in traumatic condition, as charged in count one of the information. (Unless otherwise indicated, all statutory references are to the Penal Code.) He was also found guilty of violating section 273.6, violation of a protective order, as charged in count two, and the jury found it to be true his conduct in committing the crime involved an act of violence within the meaning of section 273.6, subdivision (d). For his conviction on count one, the court sentence defendant to a term of eight years in prison, which comprised the midterm doubled under sections 667, subdivisions (d) and (e) and 1170.12, subdivisions (b) and (c). The court also sentenced him to double the midterm on count two, four years, and ordered defendant to serve that sentence concurrent with his sentence on count one.
I
FACTS
E. began living with defendant in Anaheim in 2005. Their daughter was born in October 2006. On March13, 2007, defendant "worked, and then when he came home from work, he had been drinking. And so we were going to have dinner. And he said that he didn't want to have dinner and he threw the food at [E.] and he just said he didn't want to have dinner." After that, defendant threw her on the bed, pulled her hair and insulted her "with a lot of words." He then punched her in the head and tried to strangle her. The attack left her with scratches and bruises on various parts of her body.
E. did not continue contact with defendant after March 13, 2007. She went to family law court where the judge granted her a protective order and gave her full custody of their child.
The two began living together again in March 2010. One night in March "he came back with beers" after 10:00 p.m. "He got drunk." E. went to bed. At some point, he pulled her out of bed and onto the floor. He punched her in her left eye. She had "strong pain" and swelling of her eye.
When the police came, E. told them she did not live with defendant because she was afraid her child would be taken away from her because of the restraining order. Eventually she told the police she had been living with defendant for about one month prior to the most recent attack.
The information charged that defendant was previously convicted of violating section 273.5, subdivision (a) on July 6, 2009. At trial, the court granted defendant's request to bifurcate the prior and conduct a court trial on the prior after the verdict. After the verdict, the court held a court trial for the allegations of the prior crime. The prosecutor introduced evidence of the prior crime in People v. Hernandez (Super. Ct. Orange County, 2007, No. 07NF1006) by way of certified copies of the following documents: the March 14, 2007 information; the April 23, 2007 minute order recording defendant's guilty plea to violating section 273.5, subdivision (a) and section 422 on March 13, 2007; defendant's guilty plea form which contained the following factual basis for his plea: "In Orange County, California, on 3-13-07, I unlawfully inflicted corporal injury resulting in a traumatic condition on my spouse and I threatened to kill her with the specific intent it be taken as a threat and it was unconditional, unequivocal, immediate and specific as to convey a gravity of purpose and an immediate prospect of execution which caused my spouse to be in sustained fear for her life;" and, the terms and conditions of defendant's felony probation.
During the court trial of the prior, the court noted the documents appeared to be sufficient. Both counsel submitted, and the court stated: "The court finds the allegation of the strike of case 07NF1006 true beyond a reasonable doubt. The court finds the allegation pursuant to 667.5 (b) true beyond a reasonable doubt." The court found the prior to be true.
Prior to sentencing, defendant filed a motion inviting the court to strike his prior crime for sentencing purposes under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. At the time of sentencing, the court indicated it reviewed defendant's motion. The court declined the invitation and sentenced under "the recidivous statute."
We appointed counsel to represent defendant on appeal. Counsel filed a brief which set forth the facts of the case. Counsel did not argue against the client, but advised the court no issues were found to argue on defendant's behalf. Defendant was given 30 days to file written argument in defendant's own behalf. That period has passed, and we have received no communication from defendant. Pursuant to Anders v. California (1967) 836 U.S. 738, 744, counsel provided information about potential claims to assist the court in conducting its independent review. We will discuss each of those potential issues.
II
DISCUSSION
Sufficiency of the Evidence
Counsel posed the following question: "Was the evidence sufficient to support conviction for domestic battery?"
In addressing challenges to the sufficiency of evidence, "the reviewing court must examine the whole record in the light most favorable to the judgment to determine whether it discloses substantial evidence—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. [Citation.] The appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citations.] The same standard applies when the conviction rests primarily on circumstantial evidence. [Citation.] Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.] '"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. [Citation.]"' [Citation.]" (People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
"Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment." (§ 273.5, subd. (a).) "As used in this section, 'traumatic condition' means a condition of the body, such as a wound, or external or internal injury, including, but not limited to, injury as a result of strangulation or suffocation, whether of a minor or serious nature, caused by a physical force." (§ 273.5, subd. (c).)
Here defendant pushed the victim onto a bed, pulled her out of bed and punched her in her eye, causing strong pain and swelling. Under these circumstances, we find sufficient evidence supports the jury's determination defendant violated section 273.5.
Admission of Evidence of Prior Domestic Violence Incident
Counsel poses the following question: "Did the trial court err in admitting a prior domestic violence incident under Evidence Code section 1109?"
Before jury selection, defense counsel moved to exclude the prior incident of domestic violence and the prosecutor moved to admit it. The court heard lengthy argument and ruled: "The court has considered the factors which it must consider in relation to the exercise of discretion under 352. I'm not concerned about confusion of the jury or remoteness, consumption of time, and it clearly has probative value. [¶] Considering the manner the People intend to prove up, so to speak, the 1109, the fact that the defendant threatened to kill her, I think that the 422 aspect is more prejudicial than probative . . . . [¶] I will permit that the facts and circumstances regarding the affliction of corporal injury upon her as outlined in the offer of proof, the fact that he grabbed her by the hair, pulled her hair out, hit her in the head, bruising, twisting her arm, but when it gets to the defendant threatening he would kill her and the baby, the actions with the steak knife to the bed, I find that more prejudicial than probative in relation to the events of March 18th, 2010."
"We review for an abuse of discretion a trial court's admission of evidence. [Citation.]" (People v. Booker (2011) 51 Cal.4th 141, 170.) Before the trial court admitted evidence of the prior incident of domestic violence, the court permitted extensive argument from both sides. In fact, the court precluded admission of the particularly violent aspects of the prior incident.
A trial court's ruling regarding admission of evidence under Evidence Code section 1109 is reviewed under the abuse of discretion standard. (People v. Cabrera (2007) 152 Cal.App.4th 695, 703-704.) "[I] in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendant's commission of other domestic violence is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352." (Evid. Code, § 1109, subd. (a)(1).) While evidence of prior acts is ordinarily inadmissible to show a defendant's disposition to commit such acts, the Legislature has created an exception in cases involving domestic violence. (People v. Reyes (2008) 160 Cal.App.4th 246, 251.)
Here, before permitting its admission, the court carefully analyzed the probative effect and the prejudicial effect of such propensity evidence. Under the circumstances we find in this record, we cannot conclude the court abused its discretion.
Qualifying Prior
Counsel poses the following question: "Did the prosecution prove the qualifying prior conviction to elevate the normal three year middle term to 4 years on the 273.5, subdivision (a) & (e) charge?" The appellate brief states: "While finding true on the prison prior, the court did not expressly state that the prior domestic violence allegation was proved."
"Any person convicted of violating this section for acts occurring within seven years of a previous conviction under subdivision (a), or subdivision (d) of Section 243, or Section 243.4, 244, 244.5, or 245, shall be punished by imprisonment in a county jail for not more than one year, or by imprisonment in the state prison for two, four, or five years, or by both imprisonment and a fine of up to ten thousand dollars ($10,000)." (§ 273.5, subd. (e)(1).)
Here the court determined the prosecutor proved defendant was convicted of violating section 273.5 in 2009 after admission of numerous documents relating to the prior conviction. Under the circumstances we find in this record, we conclude the prosecution proved the allegation beyond a reasonable doubt and that the trial court so found. There was no error.
Denial of Defendant's Invitation to Strike Prior
Counsel poses the following question: "Did the trial court abuse its discretion by refusing to dismiss the prior strike conviction under Romero?"
In addition to the March 13, 2007 incident discussed above, the probation report states the following: On August 25, 2005, Garden Grove police arrested defendant and Jane Doe for assaulting each other; on February 2, 2007, Fullerton police arrested defendant when Jane Doe complained he was intoxicated and hit her; and, on February 10, 2009, Fullerton police arrested defendant after a family disturbance.
Section 1385, subdivision (a) states in pertinent part, "The judge or magistrate may, either of his or her own motion or upon application of the prosecuting attorney, and in furtherance of justice, order an action to be dismissed." While the statute allows for a motion to be made only by the prosecutor or on the courts own motion, a defendant may "invite" the court to exercise its discretion to strike a prior felony. The court's ruling on such a motion is reviewable for abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374-375.) A trial court abuses its discretion only if its ruling is "so irrational or arbitrary that no reasonable person could agree with it."(Id. at p. 377.)
The Three Strikes scheme is intended to limit courts' discretion in sentencing repeat offenders. There exists no discretionary sentencing choice, unless the sentencing court determines that an exception should be made because defendant is deemed to fall outside the spirit of the "Three Strikes" law. This analysis includes considering remoteness and the nonviolent nature of prior offenses. (See People v. Bishop (1997) 56 Cal.App.4th 1245.) When deciding whether to strike a prior, "weight must be accorded to factors intrinsic to the scheme, such as the nature and circumstances of the defendant's present felonies and prior serious and/or violent felony convictions, and the particulars of the his background, character, and prospects. [Citation.]" (People v. Williams (1998) 17 Cal.4th 148, 161.)
State legislatures enacting Three Strikes laws made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional punishment approaches, must be isolated from society to protect the public safety. (Ewing v. California (2003) 538 U.S. 11, 24.) "In imposing a three strikes sentence, the State's interest is not merely punishing the offense of conviction, or the 'triggering' offense: '[I]t is in addition the interest . . . in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law.' [Citation.]" (Id. at p. 29.)
Defendant is a violent person who has shown himself to be a danger when left free. Under the circumstances we find in this record, we cannot find the court abused its discretion.
III
DISPOSITION
We have examined the record and found no other arguable issue. (People v. Wende (1979) 25 Cal.3d 436.) The judgment is affirmed.
MOORE, J. WE CONCUR: RYLAARSDAM, ACTING P. J. FYBEL, J.