Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 05-5079
NICHOLSON , J.
A jury convicted defendant Ryan Dean King of first degree residential robbery, inflicting corporal injury upon a former cohabitant, false imprisonment by force or violence, and stalking. The trial court subsequently sustained allegations defendant committed each offense while on bail and violated his probation. Defendant was sentenced to eight years eight months in prison.
On appeal, defendant contends: (1) prosecutorial misconduct occurred when witnesses testified regarding his criminal record in violation of the trial court’s order; (2) trial counsel was ineffective for failing to object to this testimony; (3) the trial court erroneously admitted evidence defendant carried a concealed weapon; (4) the trial court failed to make the necessary inquiries to determine whether witness misconduct tainted the jury; (5) defendant was entitled to an instruction on attempted robbery as a lesser included offense of robbery; (6) cumulative error warrants reversal of all counts; (7) the sentences for corporal injury upon a cohabitant and false imprisonment should have been stayed pursuant to Penal Code section 654; and (8) the upper term and consecutive sentences violate the rule of Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely). We vacate the upper term sentences, order a correction of the abstract of judgment, and otherwise affirm.
BACKGROUND
Defendant and Miranda Donahue were in a romantic relationship between October of 2003 and January of 2005, and lived together the last six to seven months before defendant ended the relationship. After living with her mother, Donahue found her own apartment in Davis.
On August 7, 2005, at around 3:25 p.m., Donahue was getting ready to go to work. Defendant had come over the day before and asked to stay. Donahue agreed after defendant promised to call his sister to pick him up as soon as possible.
Defendant asked Donahue for drugs as she was getting ready to leave. Donahue told defendant she did not have any, and he replied: “Oh well, I know you have them or whatever. . . . [Y]ou need to give them to me or I am going to take them.” She asked defendant what he meant, and he told Donahue that he would make her give him drugs or take her backpack.
Donahue went into her bedroom to get her cell phone and makeup bag, which she put in her backpack. Defendant followed her into the bedroom and said, “You’re going to give me your backpack before you go anywhere.” Donahue told him to knock it off or she would call his sister.
Defendant yanked the backpack out of Donahue’s hands and then pushed her to the floor. Donahue tried to go out of the bedroom, but defendant held the door from the other side. Donahue told defendant, “Knock it off. I have to go to work.” Defendant let go of the door, and Donahue opened it to see defendant flinging her possessions out of the backpack.
Donahue told defendant to give the backpack to her. He said everything was her fault and threw Donahue into the guest bedroom. Donahue, who weighs 115 pounds, fell on her hip.
Donahue was crying at this point, and stayed on the ground for about 30 seconds before she got up to collect her backpack and its contents. She noticed defendant was smirking as she gathered her possessions and discovered her cell phone was missing. Donahue asked defendant to return the phone and he laughed, claiming he did not have it.
Donahue took her bicycle and tried to leave, but defendant grabbed her ponytail, knocking down Donahue along with the bike. She told defendant to quit trying to keep her from leaving, and he told her to be quiet or he would hit her. Donahue said, “[H]it me then, . . . I got to go to work,” and defendant hit her under the eye on the cheek.
Defendant then grabbed Donahue and threw her down, saying it was all her fault. She screamed, “Let me up,” and defendant put his hand over her mouth and nose. Donahue stopped struggling and begged him to stop because she could not breathe. Defendant then relented and told Donahue to go to work.
Donahue left and spent the night at a friend’s house. She did not call the police because she was very upset and did not know what to do.
Donahue returned to her apartment the next day to find the door unlocked. Later that day, she opened her apartment door and found defendant waiting outside. Donahue asked defendant for the cell phone, and he replied that he did not have it. She tried to shut the door, but defendant forced his way in. A friend was staying with Donahue that day. When defendant saw the friend, defendant said, “Oh, yeah, okay, whatever, I see how it is.”
Defendant left but took Donahue’s house keys. He returned and knocked on Donahue’s door about 20 minutes later.
Donahue proceeded to leave for work, but defendant followed her outside. He continued to follow her down the street until a friend picked Donahue up. Donahue had the lock replaced, but a key was broken off inside the new lock within an hour of its installation.
On August 10, 2005, Donahue left for work at around 8:15 p.m. As she left her apartment, defendant “came from around the corner at the bottom of the stairs.” Donahue told defendant to leave her alone, but he refused. She walked down an alley in the center of the apartments and defendant followed, saying nothing.
Defendant asked Donahue for a cigarette, which she rebuffed. He replied, “Well how about I just take all your stuff,” a reference to the backpack Donahue was carrying. Donahue told defendant to stop or she would call the police. Defendant said, “Go ahead, you’ve already ruined everything else in my life.”
Donahue continued walking down the street and defendant kept following. She saw a woman in a car who had pulled over to the side to talk on a cell phone. Donahue went up to the woman and asked for a ride, telling her she was being followed by her ex-boyfriend.
The woman in the car, Jessica Marie Haker, let Donahue in after seeing defendant coming towards them. Haker then tried to drive away but defendant came up and put his hands on the hood of her car. Defendant, who had an angry appearance, was hostile to Haker. He let them go after Donahue borrowed Haker’s cell phone and started to call 911.
One of Donahue’s friends, John Murray, got a call from defendant on Donahue’s phone. Murray knew the phone was stolen, and told defendant they had nothing to talk about. Murray then heard defendant walking up to his doorstep. Defendant asked Murray to talk, and he let defendant in. He told Murray not to help Donahue any more because he wanted to be the person she turned to for help. Defendant said that he and Donahue “were going to be in love forever and it was never going to end.” He told Murray never to see Donahue again, and threatened him when Murray refused. Defendant also said Donahue would never love anyone else. The two argued and defendant left.
On August 13, 2005, at around 4:45 a.m., Jason Parks was watching television with his wife when he heard someone pounding on his front door. Parks answered and found defendant outside. Defendant wanted to come in and use Parks’s phone to call Donahue, but Parks declined. Parks closed the door, but defendant kept knocking for over 30 minutes. Parks warned defendant three times he was going to call the police if defendant did not stop.
Parks did not want to call the police because he knew defendant had previously been in trouble with the law, but Parks called after the third warning. The police arrested defendant at Parks’s front door. An unsheathed sword was found under the doormat at Parks’s house, and defendant was standing on top of the sword when he was arrested.
On August 10, 2005, Davis Police Officer Sean Timm went to Donahue’s workplace to interview her about the stalking. On the way over, Timm spotted defendant, whom he had previously known. The two made eye contact before defendant fled from Timm, who was in uniform and driving a marked patrol car.
DISCUSSION
I
Defendant contends the prosecutor committed misconduct when he elicited statements from witnesses about defendant’s criminal past in violation of the trial court’s order. In support of his contention, defendant points to incidents during the questioning of Parks and Officer Timm.
The trial court granted defendant’s in limine motion to exclude his prior conviction for transporting narcotics. At trial, the prosecutor asked Parks, “Why did you keep telling him three different times that you were going to call the police and then didn’t do it the first two times?” Parks replied, “Because you know, [defendant] had some trouble with the law in the past and I wouldn’t want to bring him more trouble.”
The prosecutor questioned Officer Timm about the events leading up to his interview with Donahue. Officer Timm was told defendant was the suspect in a stalking. When asked whether he was familiar with defendant’s name, the officer replied that he was. When asked if he had seen defendant recently, Officer Timm testified to having seen defendant just before getting the call. Officer Timm was asked what happened when he saw defendant, and the officer answered that defendant ran away. The prosecutor then asked if he had just noticed defendant, and Officer Timm replied, “Yes.” The next question was, “Because you knew him from before?” Officer Timm responded, “Yes.”
Defendant did not object to the alleged misconduct and he has not shown that a successful objection and request for an admonition could not have cured any possible harm. Therefore, his claim of error is forfeited. (People v. Earp (1999) 20 Cal.4th 826, 858.)
Anticipating our ruling, defendant asserts the failure to object was ineffective assistance of counsel. In order to demonstrate ineffective assistance of counsel, defendant must show counsel’s action was, objectively considered, both deficient under prevailing professional norms and prejudicial. (Strickland v. Washington (1984) 466 U.S. 668, 687 [80 L.Ed.2d 674, 693].) We need not determine whether counsel’s performance was deficient if we can dispose of the ineffectiveness claim on the ground of lack of sufficient prejudice. (Id. at p. 697.)
“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘“A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’”’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘“‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’”’ [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) A showing of bad faith is not required because the standard is an objective one. (People v. Hill (1998) 17 Cal.4th 800, 822-823.)
Defendant has not shown he was prejudiced by the responses to the prosecutor’s questions. Officer Timm only stated he had previously known defendant. He could have known defendant socially, or knew defendant as a witness or a victim in a prior criminal case. In order for the jury to consider this evidence of prior criminal conduct, they would have to make the worst inference possible about Officer Timm’s statement.
Parks’s statement is no more than a passing reference to defendant’s trouble with the law. He mentions no particular crimes or conduct which got defendant in trouble. Taken in the context of the trial, these statements did not prejudice defendant.
The evidence of defendant’s guilt, which we have already recounted, was overwhelming. There was also evidence that defendant threw the petite Donahue across the room and twice pushed her down. He forcibly held her down and kept her from breathing until she stopped resisting him. Based on the record before us, there was no risk that defendant was convicted on the two statements by Parks and Officer Timm rather than the overwhelming evidence against him.
The record does not establish the prosecutor violated the court’s order. Even if it were shown the prosecutor may not have been as conscientious as possible does not alter our analysis or conclusion on the facts before us.
II
Defendant contends the trial court should have sustained his Evidence Code section 352 objection and excluded testimony that defendant was carrying a sword at his confrontation with Jason Parks.
Officer Timm participated in the arrest of defendant at Parks’s house. When defendant was arrested, officers found a sword partially concealed by the doormat at Parks’s front door. Defendant was standing on the sword when he was arrested. Parks identified the sword as defendant’s, but he never saw the weapon during his confrontation with defendant, who was wearing a long trench coat.
Defendant raised an Evidence Code section 352 objection after Parks’s testimony concerning the sword.
A verdict may be set aside for erroneous admission of evidence if the court is of the opinion the admitted evidence should have been excluded and “the error or errors complained of resulted in a miscarriage of justice.” (Evid. Code, § 354.) Evidence Code section 352 permits the exclusion of even relevant evidence if “its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) We review the trial court’s decision to admit evidence under Evidence Code section 352 only for abuse of discretion. (People v. Smithey (1999) 20 Cal.4th 936, 970.) A trial court’s exercise of discretion under Evidence Code section 352 “will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 9-10.)
Penal Code section 646.9 provides in relevant part: “(a) Any person who willfully, maliciously, and repeatedly follows or willfully and maliciously harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family is guilty of the crime of stalking . . . .” The testimony about defendant’s sword was relevant to prove his persistent stalking of Donahue and his intent to control her through force and fear. Defendant had already threatened another of her friends, John Murray, with violence if Murray did not remove himself from defendant’s life. The sword testimony supports the inference that defendant contemplated similar action against Parks.
Balanced against its relevance is the marginal prejudice of the sword evidence. The “prejudice” referred to in Evidence Code section 352 applies to evidence which “‘uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues.’” (People v. Karis (1988) 46 Cal.3d 612, 638.) In the context of the other evidence against defendant, the sword testimony is not likely to produce an emotional bias against him. The trial court’s decision to admit the evidence over defendant’s objection was not an abuse of discretion.
III
Defendant contends the trial court should have made inquiries into whether the jury was tainted after Donahue was found crying in the hallway where the jurors were recessed.
Donahue started to cry during her cross-examination and later walked off the stand, telling the trial court she needed a break. The court ordered a recess and told Donahue to take a seat in the audience area. After the prosecutor told the court that Donahue did not seem okay, the trial court told her to “just wait right outside the door.” After the jury left the courtroom, the court asked the prosecutor and the bailiff to make sure Donahue was by the door and not in the hallway being observed by the jury.
The prosecutor then returned with Donahue, and the trial court stated she had walked all the way down the hallway to where the jury was waiting. The court admonished Donahue for not following instructions and walking down to the jury instead of waiting by the door. Defendant moved for a mistrial, which the trial court denied.
A motion for mistrial is directed to the sound discretion of the trial court. (People v. Cox (2003) 30 Cal.4th 916, 953.) A mistrial should be granted if the court is apprised of prejudice that it judges incurable by admonition or instruction. (Ibid.) Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion. (Ibid.) We review the denial of a motion for mistrial under the deferential abuse of discretion standard. (Ibid.)
The record does not support a finding that the trial court abused its discretion. The jury already saw the witness crying on the stand, and the recess had been granted to allow the witness to compose herself. Although Donahue violated the trial court’s instructions, the jury saw no more than it had already seen when she was on the witness stand.
Based on the record before us, we find the trial court did not abuse its discretion in refusing to grant a mistrial or conduct further inquiry into the incident.
IV
Defendant contends the trial court erred in failing to instruct sua sponte on attempted robbery as a lesser included offense of robbery.
A trial court must instruct on lesser included offenses “when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged. [Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 154.)
Robbery is a specific intent crime, and there is no robbery when the intent to steal arises after the victim is assaulted. (People v. Huggins (2006) 38 Cal.4th 175, 214.) Defendant asserts there was evidence he wanted drugs or money when he took Donahue’s backpack, and that he decided to keep her cell phone only after taking the backpack. From this, he argues the jury could have concluded he formed the intent to steal after the use of force, thus requiring an instruction on attempt as a lesser included offense. We disagree and reject the contention.
Defendant initially asked Donahue for drugs. When Donahue said she had none, defendant replied, “Oh well, I know you have them or whatever. . . . [Y]ou need to give them to me or I am going to take them.” Later, as Donahue left her bedroom with the backpack, and was getting ready to leave for work, defendant said, “You’re going to give me your backpack before you go anywhere.” After Donahue told defendant to quit or she would call his sister, defendant took the backpack from her.
Direct evidence proving the intent to commit a robbery rarely exists and such intent usually must be inferred from all the facts and circumstances disclosed by the evidence. (People v. Lewis (2001) 25 Cal.4th 610, 643.) The evidence shows defendant wanted more than just drugs or money from Donahue. By searching through the backpack and keeping the cell phone, defendant demonstrated an intent to take something of value from the backpack, even if it was not money or drugs. The intent to steal and the use of force both existed when defendant took the backpack from Donahue. Since the offense was completed when the backpack was taken, there was no need to instruct on attempted robbery.
Defendant also asserts that accumulated error at trial warrants reversal of all counts. Finding no trial error, we reject the contention.
V
Defendant contends the sentences for inflicting corporal injury upon a cohabitant and false imprisonment should have been stayed pursuant to Penal Code section 654. In support of his contention, defendant argues these offenses “were motivated by a single objective and occurred during a course of conduct indivisible in time with the” robbery.
Penal Code section 654, subdivision (a), provides in pertinent part: “An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
Courts have explained that Penal Code section 654 applies when a defendant’s course of conduct violates more than one statute but constitutes one indivisible transaction. (Neal v. State of California (1960) 55 Cal.2d 11, 19.) On the other hand, multiple punishment is proper if the defendant entertained multiple criminal objectives that were independent of and not merely incidental to each other. “Whether a course of criminal conduct is divisible and therefore gives rise to more than one act within the meaning of section 654 depends on the intent and objective of the actor.” (Neal v. State of California, supra, 55 Cal.2d at p. 19.)
The domestic violence and false imprisonment crimes were separate from the robbery, which was completed before defendant pushed Donahue down, threw her across the room, held her down, pulled her down by her hair, hit her in the face, and prevented her from leaving the apartment. Defendant’s claim is not supported by the record, and we reject it.
VI
Defendant contends his upper term and consecutive sentences violate the rule of Blakely, supra, 542 U.S. 296. The California Supreme Court rejected the Blakely contention in People v. Black (2005) 35 Cal.4th 1238, 1244, 1254-1256 (Black I). However, Black I’s holding that the factual basis for imposing an upper term sentence was not subject to Blakely was overruled by the United States Supreme Court. (Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham).) Defendant contends both his consecutive and upper term sentences are invalid under Cunningham and Blakely.
The trial court sentenced defendant to upper terms for the robbery, corporal violence against a former cohabitant, and false imprisonment counts. The court found no mitigating factors, and found the same aggravating factors applied to all three crimes -- the “absolutely horrendous” manner of the robbery, including defendant’s taking advantage of the victim’s hospitality and the prolonged use of force and fear -- along with the additional factors of defendant’s lack of candor and remorse. These are factors which must be plead and proven beyond a reasonable doubt to a jury. (Cunningham, supra, 549 U.S. at ___ [166 L.Ed.2d at p. 864]; see also People v. Sandoval (July 19, 2007, S148917) ___ Cal.4th ___, ___ [2007 Cal. Lexis 7606, *16] (Sandoval) [imposition of upper term sentence violated Sixth Amendment where “[a]ll of the aggravating circumstances cited by the trial court were based upon the facts underlying the crime” and "none were admitted by defendant or established by the jury's verdict”].)
Nor can we say the error is harmless beyond a reasonable doubt. (Cf. Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466, 476-477] (Blakely error is not structural).) In assessing if Blakely error is harmless, “we must determine whether, if the question of the existence of an aggravating circumstance or circumstances had been submitted to the jury, the jury’s verdict would have authorized the upper term sentence.” (Sandoval, supra, ___ Cal.4th at p. ___ [2007 Cal. Lexis 7606, *18].) Each of the aggravating factors involved either a qualitative assessment of the nature of defendant’s actions or addressed events which took place after the trial. However uncontested or overwhelming the evidence may have been of defendant's guilt, we cannot say beyond a reasonable doubt that the jury would have made the same qualitative assessments the trial court did or would have found facts which took place after the trial. Thus, we must remand this case for resentencing.
Our Supreme Court recently directed that “entencing proceedings to be held in cases that are remanded because the sentence imposed was determined to be erroneous under Cunningham . . . are to be conducted in a manner consistent with the amendments to the [determinate sentencing law] adopted by the Legislature.” (Sandoval, supra, ___ Cal.4th at p. ___ [2007 Cal. Lexis 7606, *37].) Accordingly, we will remand this case for resentencing under Sandoval.
Our Supreme Court has also held that the imposition of consecutive sentences does not implicate a defendant’s Sixth Amendment rights. (People v. Black (2007) 41 Cal.4th 799, 816.) We therefore reject defendant’s Blakely claim as it relates to consecutive sentencing.
VII
We note an error on the abstract of judgment requiring correction. On count 4, the stalking count, the trial court sentenced defendant to a consecutive term of eight months for the offense and a stayed two-year on bail enhancement. The abstract of judgment does not reflect any sentence for count 4. We will order the abstract of judgment corrected accordingly.
DISPOSITION
Defendant’s upper term sentences for robbery, false imprisonment, and corporal injury upon a former cohabitant are vacated and the case is remanded for resentencing in accordance with this opinion. The trial court is directed to correct the abstract of judgment to reflect defendant’s sentence on count 4. The court shall forward a certified copy of the corrected abstract of judgment to the Department of Corrections and Rehabilitation.
We concur: SIMS , Acting P.J., ROBIE , J.