Opinion
C083050
02-06-2018
THE PEOPLE, Plaintiff and Respondent, v. JACK LEE JUDLIN, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CR033016)
Defendant Jack Lee Judlin appeals following convictions for inflicting bodily injury on a person with whom he had a dating relationship (Pen. Code, § 273.5, subd. (a); count I) and misdemeanor battery against a person with whom he had a dating relationship (§ 243, subd. (e)(1); count II). In addition, the trial court found true defendant had served two prior prison terms and committed count II while out on bail. (§§ 12022.1, 667.5, subd. (b).) The court also found defendant's December 2013 conviction for battery with serious bodily injury was a strike. (§§ 667, subds. (b)-(i), 1192.7, subd. (c)(8).)
Undesignated statutory references are to the Penal Code.
On appeal, defendant contends there was insufficient evidence that his 2013 conviction was a serious felony within the meaning of the three strikes law because the evidence failed to show a necessary element, i.e., that defendant personally inflicted the injuries sustained by the victim. Defendant further argues this element was not inherent in the conviction, and the trial court's failure to present it to the jury for determination violated his Sixth Amendment rights.
Finally, defendant contends there was insufficient evidence to support the jury's finding that he did not act in self-defense in count I.
We conclude the trial court erred in failing to present to the jury the element of whether defendant personally inflicted serious bodily injury, and such error was not harmless. We will reverse the part of defendant's sentence resting on the enhancement allegation in relation to his prior conviction for battery. On remand, the People have the burden to prove these allegations at a jury trial, unless defendant is prepared to waive his constitutional right to a jury determination on the issue of personal infliction of serious bodily injury. We affirm in all other respects.
FACTUAL AND PROCEDURAL BACKGROUND
At trial, A.F. testified she was in a romantic relationship with defendant for five years. They had two children together. A.F. testified their relationship was "very toxic," and "abusive," with "a lot of fighting" that turned physical. Their fights would start with an argument and then escalate to a physical fight. Although A.F. sometimes started the fights, defendant would "go[] all out," and fight her like she was a "man." Defendant would punch, slap, kick, use weapons, and throw things at her such as bricks and rocks. At trial, A.F. testified she told police she had been in fights with "hundreds" of people during her college years, although she now said that was "an exaggeration." A.F. testified she was afraid of defendant.
A.F. testified at trial about three incidents between 2012 and 2013. In the first incident, defendant had been drinking and fell asleep while A.F. was in the yard. When defendant awoke, he demanded to know what A.F. was doing. A.F. replied she was just sitting there, and defendant asked if she was "retarded." A.F. replied yes, and defendant grabbed her clothes and makeup and threw the items all over the yard and nearby railroad tracks. When A.F. tried to leave, defendant struck her back with a brick and threatened to bash her car window if she left.
During the second incident, defendant called A.F. to his house and said he had found out about a guy she "hung out with." A.F. tried to leave but defendant followed her on a bike and hit her in the back with a rock.
During the third incident, defendant, A.F., and a friend were drinking in the early hours of the morning. Defendant started fighting with his sister about finishing the alcohol and threw a chair at her. The chair broke apart and hit the friend, who was holding A.F.'s newborn baby. The friend yelled at defendant to stop, and defendant demanded A.F. kick out the friend. When A.F. refused, defendant smashed her car windows with a skateboard. According to A.F., defendant had smashed her car windows three other times during their relationship. In addition, defendant had broken windows in her house, kicked in her door, smashed cell phones, and damaged personal belongings.
On May 28, 2015, defendant celebrated his birthday by drinking with his friends and getting into "an altercation" by the river. A woman texted A.F., claiming defendant was cheating on A.F. with her. A.F. showed the texts to defendant, who said the woman was lying. A.F. was upset and left for an hour and then texted defendant to leave their home. A.F. tried to confront the woman from the earlier texts, but the woman would not see A.F. A.F. returned home, finding defendant still there and drinking with his friends. A.F. again told him to leave, but defendant just laughed. A.F. warned she would call the police, and defendant stood up and laughed again in her face and said "hurtful words." A.F. grabbed defendant by the neck and the two started "tossing each other around." Defendant held A.F. down on the couch and ripped out her hair, kneed her, and hit her with his fist. A.F. had blood on her face and suffered a bump on her forehead. Defendant suffered scratches on his face as a result of the fight, which A.F. testified she inflicted while he was holding her down. During trial, A.F. testified during cross-examination that she started the "contact" that night.
After the altercation, A.F. called 911 and said defendant had attacked her. She said defendant hit her in the head multiple times with fists and a glass bottle. Her nose was "busted," and there was "blood everywhere." During the call, A.F. described defendant's breaking her car windows. She testified defendant did so because she refused to hang up with 911. A recording of the 911 call was played for the jury at trial.
On March 8, 2016, defendant had been drinking. A.F. was mad because defendant was not helping around the house, and the two started arguing after dinner. A.F. called defendant lazy, and defendant responded by spitting on her. At the time, A.F. was holding their four-month-old child, and their two-year-old child and her six-year-old child were present. Next, defendant stood over A.F. and spat at her face 10 more times. Defendant grabbed A.F.'s purse and briefly left their home. When defendant returned, he tried to kick open the door. A.F. opened the door, shoved defendant by his neck, and told him to leave and that he was scaring the children. Defendant "socked" her in the jaw while she was holding the baby. Defendant resumed spitting on her and laughing, still in the presence of the children. He pulled out a bag of drugs and threatened to get her in trouble by "put[ting] them on [her]." A.F. called 911, and defendant tried to wipe the spit off her face before the police arrived.
During trial, A.F. testified she told police after the March 8, 2016 incident that she exaggerated when she told police she had been in fights with "hundreds" of people during her college years. A.F. also testified that, during her five-year relationship with defendant, she had fought one woman with whom defendant was cheating, and two such women had attacked her.
On May 25, 2016, a jury convicted defendant of count I (inflicting bodily injury on a person with whom he had a dating relationship on May 28, 2015) and count II (misdemeanor battery against a person with whom he had a dating relationship on March 8, 2016, a lesser included offense). In a separate trial that same day, the court found true defendant committed count II while out on bail. (§ 12022.1.) The court also found true two prior prison term enhancements. (§ 667.5, subd. (b).)
On June 28, 2016, the trial court found defendant's December 2013 conviction for battery with serious bodily injury (§ 243, subd. (d)) was a strike. (§§ 667, subds. (b)-(i), 1192.7, subd. (c)(8).) The trial court sentenced defendant to a total of eight years in state prison, as follows: three years on count I (§ 243, subd. (d)), doubled to six years due to the strike (§ 667, subds. (b)-(i)), plus two years for the two prison priors (one year each) (§ 667.5, subd. (b)). In addition, the trial court sentenced defendant to a concurrent 364 days in county jail on count II and issued a criminal protective order. (§ 273.5, subd. (j).)
DISCUSSION
1.0 Sufficiency of the Evidence re 2013 Conviction
Defendant contends there was insufficient evidence to support the trial court's finding that his 2013 conviction for violating section 243, subdivision (d) was a serious felony and qualified as a strike under the three strikes law. We disagree.
1.1 Relevant Background
During trial, the trial court asked how defendant "want[ed] to proceed . . . with regard to the priors and for the information?" Defense counsel responded, "We ask that the priors be bifurcated." The trial court responded, "Those will be bifurcated and not read to the jury." Defense counsel responded, "And [defendant] is not requesting a jury trial on that [but to] be heard as a court trial."
To prove the allegation that defendant's 2013 conviction for battery with serious bodily injury was a strike, the prosecution submitted the abstract of judgment, the minute order, and the transcript of defendant's December 4, 2013 guilty plea to violating section 243, subdivision (d). The minute order notes defendant was "[i]nformed of [three] strikes law [plus] 'doubling' if commits crime again."
According to the transcript of defendant's plea hearing, the court first accepted the guilty plea of Mr. Miles, who was also charged with battery with serious bodily injury with respect to the same incident. Although the record lacks copies of the complaints against Miles or defendant, the trial court stated the complaint described the charge against Miles as follows: "battery causing serious bodily injury on John Doe occurring in Lassen County on August 31, 2013." Miles affirmed to the trial court that he was pleading guilty to that offense because he "agree[d] it was true." Miles then agreed to the following factual basis, as set forth by the prosecutor: "Defendant assaulted an individual, battered an individual in Lassen County Adult Detention Facility and while doing so, inflicted serious bodily injury." Miles pleaded guilty to "the charge of battery resulting in serious bodily injury on August 31, 2013."
The record does not contain Mr. Miles's first name.
Following Miles's plea, the trial court turned to defendant, who acknowledged he had reviewed, initialed, and signed the plea form. The trial court asked defendant, "Do you understand that this offense is a strike within the meaning of the California three strikes law and should you be convicted of a felony in the future, any sentence you would receive would be doubled?" and defendant responded, "Yes." The trial court continued, "Do you agree that the charge in Count I is true?" and defendant responded, "Yes." The trial court stated: "The complaint alleges in Count I, that on or about August 31, 2013, in the County of Lassen, State of California, you did willfully and unlawfully use force and violence upon the person of John Doe resulting in the infliction of serious bodily injury on that person. Do you understand that charge?" Defendant responded, "Yes," and pleaded guilty to the charge. The trial court accepted defendant's plea and noted it had failed to ask about the factual basis for the plea: "Earlier, you had [the prosecutor] recite the facts of the plea and [Miles] admitted they were true. Do you recall that?" Defendant responded, "Yes," and the trial court asked, "Were the facts that [the prosecutor] recited the facts which you now agree are true?" Defendant responded, "Yes."
The record does not contain a copy of the plea form. --------
Prior to the June 2016 sentencing hearing, defendant argued the prosecution had failed to establish his 2013 conviction was a strike. As previously noted, the trial court disagreed and found the conviction was a serious felony and therefore a strike. The trial court explained its reasoning in a written tentative ruling, noting defendant's statements during the 2013 plea hearing established that defendant: (1) pleaded guilty to inflicting serious bodily injury on the victim, and (2) was aware that the offense was a strike and his sentence would be doubled if he was convicted of another felony in the future.
1.2 Applicable Legal Principles
A prior conviction for a crime listed in section 1192.7, subdivision (c) is a "serious felony" that counts as a strike for sentence enhancement purposes. (§ 667, subd. (d)(1).) Although battery with serious bodily injury (§ 243, subd. (d)) is not listed in section 1192.7, subdivision (c), it qualifies as a strike if the defendant personally inflicts great bodily injury on a nonaccomplice or personally uses a deadly or dangerous weapon or firearm. (§ 1192.7, subd. (c)(8), (23); see People v. Bueno (2006) 143 Cal.App.4th 1503, 1508 ["to establish that the battery was a serious felony the People were required to show that [the defendant] personally inflicted the injury, rather than that he aided and abetted another [citation], and that the victim was not an accomplice"].) The element of great bodily injury under section 1192.7, subdivision (c)(8) is essentially equivalent to serious bodily injury under section 243. (Bueno, at p. 1508, fn. 5.)
To determine whether a particular prior conviction qualifies as a serious felony for purposes of the three strikes law, the sentencing court may examine "the record of the prior criminal proceeding to determine the nature or basis of the crime of which the defendant was convicted." (People v. McGee (2006) 38 Cal.4th 682, 691; People v. Trujillo (2006) 40 Cal.4th 165, 179.) "[T]he trier of fact may draw reasonable inferences from the record presented." (People v. Miles (2008) 43 Cal.4th 1074, 1083.)
We review the record in the light most favorable to the judgment to determine whether it is supported by substantial evidence. (People v. Miles, supra, 43 Cal.4th at p. 1083.) "In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt." (Ibid.)
1.3 Substantial Evidence Supports the Trial Court's Finding that the Prior Conviction Was a Serious Felony
Despite defendant's contentions, substantial evidence supports the trial court's finding that the prior conviction was a serious felony and therefore a strike. Defendant agreed to the same facts as stated to Miles, i.e., "Defendant . . . battered an individual . . . and while doing so, inflicted serious bodily injury." Although the term "Defendant" is ambiguous in this statement of facts, a rational trier of fact could have found under the facts we have described here that it referred to defendant. In other words, there is substantial evidence that defendant admitted that he personally inflicted serious bodily injury during the battery.
2.0 The Trial Court Erred in Failing to Submit to a Jury the Issue of Whether Defendant Personally Inflicted Serious Bodily Injury in Committing the 2013 Battery
As explained in Descamps v. United States (2013) 570 U.S. 254 , judicial factfinding beyond facts implied by the elements of the prior offense violates the Sixth Amendment right to a jury trial. (See, e.g., People v. Eslava (2016) 5 Cal.App.5th 498, 514, review granted Feb. 15, 2017, S239061 [deferred pending related issue]; People v. Navarette (2016) 4 Cal.App.5th 829, 844; People v. Marin (2015) 240 Cal.App.4th 1344, 1363.) As such, a defendant is entitled to a jury trial on the issue of whether he personally inflicted serious bodily injury on a nonaccomplice, unless he waives a jury or either admits the necessary facts or assents to the trial court's finding of them without a jury. (Eslava, supra, 5 Cal.App.5th at pp. 520-521, review granted; Marin, supra, 240 Cal.App.4th at p. 1363.)
We agree with defendant that his counsel's general statement that defendant was "not requesting a jury trial on [the priors]" is not the affirmative, personal waiver required for waiving a constitutional right to a jury trial. (People v. French (2008) 43 Cal.4th 36, 47 ["When the constitutional right to a jury trial is involved, we have required an express waiver even in cases in which the circumstances make it apparent that all involved—the trial court, the prosecutor, defense counsel, and the defendant—assumed that the defendant had waived or intended to waive the right to a jury trial."]; see Eslava, supra, 5 Cal.App.5th at p. 507, review granted.)
A trial court's failure to submit a sentencing factor to the jury requires reversal only if the error was harmless beyond a reasonable doubt. (Eslava, supra, 5 Cal.App.5th at p. 519, review granted [applying the test set forth in Chapman v. California (1967) 386 U.S. 18 ; see People v. Wilson (2013) 219 Cal.App.4th 500, 518-519 [same].) Harmless error exists " 'if the evidence supporting [the sentencing] factor is overwhelming and uncontested, and there is no "evidence that could rationally lead to a contrary finding." ' " (Eslava, supra, 5 Cal.App.5th at p. 519, review granted.)
As previously noted, the trial court's shorthand use of the facts as recited by Miles ambiguously identifies "Defendant" as having personally inflicted serious bodily injury. Although a rational trier of fact could infer that "Defendant" refers to defendant, it would also be rational to infer that the term referred to Miles.
Moreover, defendant's other statements during the plea colloquy fail to establish beyond a reasonable doubt that he admitted to personally inflicting serious bodily injury. Defendant pleaded guilty to using force and violence upon the victim "resulting in the infliction of serious bodily injury on that person" (italics added), which is not the same as admitting he personally inflicted serious bodily injury. (See Eslava, supra, 5 Cal.App.5th at p. 519, review granted [facts proving personal infliction of serious bodily injury were required to establish prior conviction for battery with serious bodily injury was a strike, where allegation was that the defendant used force "resulting in bodily injury"]; see also People v. Lewis (2004) 120 Cal.App.4th 882, 887 [examining the elements for violating § 243, subd. (d), or "battery resulting in serious bodily injury"].) In addition, defendant's acknowledgment of the court's admonishment of the potential consequences of his guilty plea was not an admission the offense fell within section 1192.7, subdivision (c)(8) and therefore constituted a strike. (Cf. People v. Delgado (2008) 43 Cal.4th 1059, 1072 [if a defendant makes a section 969f admission as part of a guilty plea, he concedes an offense is a serious felony, and "the serious felony nature of the offense will become an explicit part of the record of conviction, leaving no room for confusion if and when the issue becomes relevant to the sentence for a subsequent felony"].) As such, we cannot say the record contains overwhelming evidence for the personal infliction of serious bodily injury finding.
The Sixth Amendment's double jeopardy protections do not prevent retrial of the sentencing enhancement. (Eslava, supra, 5 Cal.App.5th at p. 519, review granted.) In any trial on remand, the People bear the burden of proof beyond a reasonable doubt of all elements of the alleged strike, and the evidentiary scope must be limited to the record of conviction. (Id. at p. 521, review granted.)
3.0 Sufficiency of Evidence to Support Conviction on Count I
Defendant contends there is insufficient evidence to support his conviction on count I (inflicting bodily injury on a person with whom he had a dating relationship on May 28, 2015). According to defendant, A.F. started the physical altercation by grabbing his neck, and he was merely acting in self-defense when he responded with physical violence. In addition, defendant argues, he had reason to fear for his safety because his relationship with A.F. was "toxic," and he knew A.F. had a history of physical altercations with others.
"In addressing a claim of insufficient evidence to support a conviction, this court ' "reviews the entire record in the light most favorable to the prosecution to determine whether it contains evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt." ' [Citation.] 'We presume every fact in support of the judgment the trier of fact could have reasonably deduced from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding.' " (People v. Jackson (2016) 1 Cal.5th 269, 345.) Stated differently, reversal for insufficiency of the evidence is " ' "unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' " ' " (People v. Manriquez (2005) 37 Cal.4th 547, 577.)
The jury was properly instructed with CALCRIM No. 840 that, to prove defendant was guilty of violating section 273.5, subdivision (a), the prosecution was required to show, "the defendant did not act in self-defense." In addition, the jury was correctly instructed with CALCRIM No. 3470 regarding self-defense, including: "The defendant acted in lawful self-defense if: [¶] One, the defendant reasonably believed that he was in imminent danger of suffering bodily injury or was in imminent danger of being touched unlawfully; [¶] Two, the defendant reasonably believed that the immediate use of force was necessary to defend against that danger; and, [¶] Three, the defendant used no more force than was reasonably necessary to defend against that danger." (See People v. Minifie (1996) 13 Cal.4th 1055, 1064-1065 [to justify an act of self-defense for an assault charge, the defendant "must have an honest and reasonable belief that bodily injury is about to be inflicted on him," the threat must be "imminent," and " 'any right of self-defense is limited to the use of such force as is reasonable under the circumstances' "].)
Despite defendant's contentions, there was sufficient evidence from which a jury could reasonably conclude defendant was not acting in self-defense. Defendant had been treating A.F. with hostility after she confronted him about allegations he was unfaithful. When A.F. warned she would call police "because this was going to escalate," defendant increased the tension by laughing in her face and saying "hurtful words." Although A.F. grabbed defendant by the neck, he responded by "tossing" her around, pinning her to the couch, ripping her hair out, and hitting her with his knee and fist. In addition, while defendant and A.F. had a volatile history and A.F. had a history of fighting others, A.F. testified defendant would "go[] all out" during their fights, including punching her with a closed fist, slapping her, kicking her, and throwing weapons at her, including bricks and rocks. These are sufficient circumstances to support the inference that defendant did not reasonably believe he was in imminent danger of suffering bodily injury or being touched unlawfully, and that he used more force than was reasonably necessary to defend against that danger. We conclude there was substantial evidence defendant did not act in self-defense.
DISPOSITION
We reverse the sentence and remand for further proceedings to determine whether defendant's 2013 conviction for battery with serious bodily injury constituted a prior serious felony conviction and a strike. Defendant is entitled to a jury trial on the issue of whether he personally inflicted serious bodily injury on a nonaccomplice, unless he waives a jury and either admits the necessary facts or assents to the court's finding of them without a jury. The evidentiary scope of any trial on remand shall be limited to the record of conviction. Once the jury trial is completed, the trial court shall resentence defendant in accordance with the jury's finding. In the event the People elect not to proceed with a retrial of the issue of personal infliction of serious bodily injury on a nonaccomplice, the court shall resentence defendant without considering the 2013 battery conviction to be a serious felony or a strike. The trial court is directed to then prepare an amended abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
BUTZ, Acting P. J. We concur: MURRAY, J. HOCH, J.