Opinion
NOT TO BE PUBLISHED
Super. Ct. No. CRF066911
BLEASE, Acting P. J.
Defendant Juan Carlos Martinez was found guilty by a jury of inflicting corporal injury on a spouse or cohabitant (Pen. Code, § 273.5, subd. (a); further undesignated statutory references are to this code) and falsely identifying himself to a peace officer. (§ 148.9, subd. (a).) The jury also found true two aggravating factors -- that defendant was on probation when he committed the offenses and that his prior performance on probation was poor. Defendant waived jury trial on an enhancement for a prior conviction of section 273.5 that occurred within seven years of the current offense (§ 273.5, subd. (e)), and the trial court found the enhancement true. The trial court denied probation and sentenced defendant to a state prison term of four years for the violation of section 273.5, subdivision (a), and a consecutive term of 180 days for falsely identifying himself to a peace officer.
Defendant appeals, claiming the trial court erred by admitting evidence of other acts of domestic violence and by submitting aggravating factors to the jury. He also argues that there was insufficient evidence to support his conviction for falsely indentifying himself to a peace officer. Agreeing only with the last of these claims, we shall reverse defendant’s conviction under section 148.9, subdivision (a).
FACTUAL AND PROCEDURAL BACKGROUND
Defendant and the victim had been in a relationship for seven years and had two children. A few days before the incident, the victim decided she did not want defendant to live with her anymore, and she would no longer let him in her apartment. A few days later, defendant entered the apartment through an unlocked window in the family room after the victim went to sleep. The victim saw defendant and ran for the door, but defendant caught up to her and threw her to the ground, then choked her. After the defendant got off the victim, he hit her face. Defendant choked the victim again and, when the victim tried to cry out, he hit her.
When defendant went to get his belongings from a closet in the family room, the victim got her daughter from the bedroom. Defendant pushed the victim while she was holding her daughter, and she fell onto the couch. He put his hand on the victim’s throat and over her mouth to prevent her from yelling.
The victim was able to run out of the apartment when defendant went into the bedroom. She suffered bruises, a swollen lip and red marks on her neck and clavicle area as a result of the incident.
DISCUSSION
I
Defendant claims the trial court erred by admitting evidence of prior acts of domestic violence committed by him. We disagree.
On the first day of trial, the People filed a motion pursuant to Evidence Code section 1109 to admit evidence of four prior acts of domestic violence by defendant against the victim: two incidents that occurred within a week of each other in Kern County in 2001, another incident occurring in Las Vegas in 2004, and the most recent incident occurring in Kern County in 2006.
During a hearing on the motion, defendant’s attorney entered an objection under Evidence Code section 352, but only to evidence concerning the 2006 incident. He argued evidence of this incident should not be admitted because it involved choking, which was “highly inflammable [sic],” and it had not been reported. The trial court ruled that, as the prior incident occurred only a few months before the current offense and involved similar conduct, it was not more prejudicial than probative.
In general, “evidence of a person’s character or a trait of his or her character . . . is inadmissible when offered to prove his or her conduct on a specified occasion.” (Evid. Code, § 1101, subd. (a).) However, an exception to this general rule is contained in Evidence Code section 1109, subdivision (a)(1), which provides in relevant part: “[I]n 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 [Evidence Code] Section 1101 if the evidence is not inadmissible pursuant to [Evidence Code] Section 352.”
Defendant contends that Evidence Code section 1109 violates due process. He acknowledges the California Supreme Court has held that a similar statute (Evid. Code, § 1108, which allows evidence of prior sex offenses in a prosecution for a sex offense) does not violate due process (People v. Falsetta (1999) 21 Cal.4th 903, 907) and that, relying on that case, this court has held Evidence Code section 1109 does not offend due process principles. (People v. Johnson (2000) 77 Cal.App.4th 410, 417.) Defendant provides no analysis or authority that would warrant a departure from the precedence on this issue. Furthermore, his failure to object in the trial court on this basis is fatal to his claim. (People v. Demetrulias (2006) 39 Cal.4th 1, 21, fn. 5.)
With minimal analysis, defendant also argues that the trial court abused its discretion by admitting evidence of the prior offenses “without conducting a balancing under Evidence Code section 352.” To the contrary, with regard to the prior incident objected to by defendant, the trial court considered the probative nature of the evidence as well as its potential prejudicial effect and engaged in an appropriate exercise of discretion when it ruled the evidence admissible. Although defendant mentions that the prior offenses all involved the same victim and “certainly bolstered her credibility,” he fails to offer any analysis as to why this rendered it an abuse of discretion to admit the evidence in question.
Without providing citations to the record or otherwise clarifying the evidence to which he refers, defendant also complains that “the ‘impeachment’ of the victim with her prior inconsistent statements allowed in additional testimony from police officers, and turned the proceedings into a trial-within-a-trial.” In the absence of any specific factual or legal analysis from defendant, we cannot evaluate the significance of this contention or how it relates to the admission of evidence of prior acts of domestic violence.
Defendant maintains the trial court had a sua sponte duty to conduct an analysis under Evidence Code section 352 as to each of the prior acts of domestic violence referred to in the People’s motion, even though his trial attorney only objected to admission of the most recent prior incident. But even if defendant could establish that the evidence in question was erroneously admitted, a verdict based on the erroneous admission of evidence may not be set aside unless a specific and timely objection to the admission of the evidence was made. (Evid. Code, § 353, subd. (a); People v. Anderson (2001) 25 Cal.4th 543, 586 [failure to make Evidence Code section 352 objection to evidence of an uncharged crime at trial forfeited the issue for appeal].)
Defendant asserts, in the alternative, that his trial attorney rendered ineffective assistance of counsel by failing to object to the admission of all prior acts of domestic violence. Again, defendant engages in no factual or legal analysis of this issue and, in particular, does not attempt to explain why there is a reasonable probability that a different outcome would have occurred had the objection been made. (Cf. People v. Ledesma (1987) 43 Cal.3d 171, 215-218; Strickland v. Washington (1984) 466 U.S. 668, 694 [80 L.Ed.2d 674, 698].) We decline to perform the analysis for him.
II
Defendant contends it was improper to have the jury determine factors in aggravation and that his trial attorney rendered ineffective assistance of counsel by failing to object to this procedure. We reject this claim as well.
Prior to trial, the People filed notice that they would be seeking an upper term sentence and that they intended to rely on four factors in aggravation: the victim’s vulnerability, the numerous and increasingly serious nature of defendant’s prior convictions, the fact that defendant was on probation when he committed the offense and his unsatisfactory prior performance on probation. Both defendant and his attorney informed the trial court that they wanted the jury to determine the aggravating factors.
At trial, documents were admitted establishing that defendant was convicted of domestic violence charges stemming from incidents in 2001 and 2004 involving the same victim, and that he repeatedly violated his probation in the 2001 incident. The jury found true only two of the aggravating factors -- that defendant was on probation when he committed the current offenses and that his prior performance on probation was unsatisfactory.
In Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham), the United States Supreme Court held that any circumstance other than the fact of a prior conviction that is relied on by a trial court to increase the penalty for a crime beyond the statutory maximum must be tried before a jury and proved beyond a reasonable doubt. (Blakely, supra, at pp. 301, 303 [159 L.Ed.2d at pp. 412, 413-414]; Cunningham, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 869].)
In Barragan v. Superior Court (2007) 148 Cal.App.4th 1478 (Barragan), the defendant’s jury trial already had commenced when Cunningham was decided, and the prosecuting attorney amended the information to allege several aggravating factors. In writ proceedings, the defendant argued that his demurrer to the amended pleading should have been granted, in part, because “‘no statutory procedure exists in California under which a jury may decide the truth of [facts] in aggravation.’” (Id. at p. 1482.) We denied defendant relief, holding that “California’s statutory scheme governing accusatory pleadings in criminal cases does not preclude the prosecutor from amending the information to allege aggravating facts for purposes of sentencing.” (Ibid.)
Subsequent to our decision in Barragan, the Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825, 848-849 (Sandoval), pointed out the many difficulties inherent in having a jury render findings on aggravating circumstances, but it did not rule such a procedure unauthorized by law. In fact, the court noted that, although allowing a jury trial on aggravating circumstances would “significantly complicate and distort the sentencing scheme,” such a scheme “would comply with the constitutional requirements of Cunningham . . . .” (Id. at p. 848.)
Defendant urges us to reject our decision in Barragan, relying on an opinion that has since been superseded by a grant of review. (People v. Diaz (Apr. 25, 2007, B185735) review granted Aug. 8, 2007, S152523, case ordered transferred back to the Court of Appeal Sept. 12, 2007, and nonpublished opinion filed Oct. 17, 2007.) And although the Court of Appeal, Second District, has disagreed with Barragan based on the holding in Sandoval “that resentencing under a discretionary scheme was preferable to permitting a jury trial on aggravating circumstances” (People v. Superior Court (Brooks) (2007) 159 Cal.App.4th 1, 5), the sentencing scheme had not been amended, nor had Sandoval been decided, at the time of defendant’s trial in the present matter.
Furthermore, even if we were to assume the procedure utilized here was erroneous, defendant has failed to demonstrate any prejudice resulted. Defendant did not receive an upper term sentence. And the fact that the jurors learned defendant was on probation and previously had violated his probation was unlikely to have come as a surprise to them, in light of the evidence that defendant had committed acts of domestic violence against the victim in the past. The evidence was presented in documentary form and was referred to for the first time during closing argument, and then only briefly, at which time the jury was told to consider the aggravating factors only if it found defendant guilty of one of the felonies charged.
Additionally, the evidence of guilt was overwhelming, and the only defense presented was an attack on the victim’s credibility. As evidence of defendant’s probation violations did not have any bearing on the victim’s credibility, we cannot divine any prejudice from the admission of such evidence.
III
Finally, defendant argues his conviction for falsely identifying himself to a peace officer must be reversed because there was insufficient evidence he had been detained or arrested when he misidentified himself. This claim has merit.
Defendant was charged with violating section 148.9, subdivision (a), which provides: “Any person who falsely represents or identifies himself or herself as another person or as a fictitious person to any peace officer listed in Section 830.1 or 830.2, or subdivision (a) of Section 830.33, upon a lawful detention or arrest of the person, either to evade the process of the court, or to evade the proper identification of the person by the investigating officer is guilty of a misdemeanor.” (Italics added.) In order to violate section 148.9, subdivision (a), an individual must be lawfully detained or arrested when providing false identifying information. (In re Voeurn O. (1995) 35 Cal.App.4th 793, 797.) A consensual encounter between an officer and a defendant is insufficient to satisfy the detention/arrest requirement in the statute. (Ibid.)
In the present matter, Officer Marc Marquez received a basic description of the suspect (height, weight, race and clothing consisting of a white T-shirt and black pants) while on route to the victim’s residence. As he proceeded toward that location, he observed an individual standing in front of a gas station approximately three blocks from the victim’s residence who matched the description he had received. Officer Marquez contacted the individual, who he identified in court as defendant, and asked him if he had identification. Defendant said he did not. When the officer asked defendant his name, he responded that it was “Jose Roberto Lopez” and provided a fictitious date of birth. After a brief exchange with defendant, Officer Marquez contacted another officer for additional identifying information. He then confirmed that defendant had a scar and a tattoo described by the victim. The officer detained defendant and transported him to the victim’s location, where she identified him.
Defendant contends no evidence was presented that he had been lawfully detained when he falsely identified himself. We agree. A detention “does not occur simply because a police officer approaches an individual and asks a few questions. So long as a reasonable person would feel free ‘to disregard the police and go about his business,’ [citation], the encounter is consensual and no reasonable suspicion [of criminal activity] is required. The encounter will not trigger Fourth Amendment scrutiny unless it loses its consensual nature. . . . ‘Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred.’” (Florida v. Bostick (1991) 501 U.S. 429, 434 [115 L.Ed.2d 389, 398].)
The question is whether the officers’ conduct would have led a reasonable person “to believe that [he or she] was required to answer the officers’ questions.” (United States v. Drayton (2002) 536 U.S. 194, 203 [153 L.Ed.2d 242, 253].) The factors to consider are whether there was an application of force or an overwhelming show of force, intimidating movement, brandishing of weapons, the blocking of exits, threats, commands or some other authoritative act which would coerce a reasonable person into complying with the officer’s request. (Id. at p. 204 [153 L.Ed.2d at p. 253].)
In the present matter, there was no evidence that defendant had been detained when he provided a false name to the officer. The evidence before the jury was that Officer Marquez “contact[ed]” defendant, who was standing in front of a gas station, and asked him if he had any identification. When defendant said he had none, the officer asked him his name, and defendant provided the misinformation. Assuming that Officer Marquez was providing a chronological description of what occurred, his own testimony was that he did not detain defendant until after the false identification was provided.
As defendant had not been lawfully detained or arrested when he provided false information to the officer concerning his identity, his conviction for this offense must be reversed.
Defendant had been in custody for 204 days at the time of sentencing. The trial court allocated 120 days of this time to defendant’s conviction of section 148.9, subdivision (a), so that, with conduct credits of 60 days, defendant had credit for time served on that offense. As we reverse defendant’s conviction on this offense, he is entitled to the custody credits applied to that conviction toward his state prison sentence.
DISPOSITION
The conviction of section 148.9, subdivision (a), is reversed. The judgment is modified to award 204 days of actual credits and 102 days of conduct credits for a total of 306 days presentence credits toward defendant’s state prison sentence. The trial court is directed to prepare an amended abstract of judgment reflecting the modification of custody credits and to forward a copy thereof to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: MORRISON, J., CANTIL-SAKAUYE, J.