Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Madera County No. MCR028038. Jennifer R.S. Detjen, Judge.
Syda Kosofsky, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, David A. Rhodes and Janis Shank McLean, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
HILL, J.
Defendant was convicted by jury of assault with a deadly weapon and by means of force likely to produce great bodily injury and possession of drug paraphernalia. Defendant contends evidence of the facts underlying his prior felony conviction for assault with intent to commit rape was erroneously admitted and should have been excluded because it was more prejudicial than probative. He also contends a jury instruction on flight was improperly given and challenges his sentence. We modify the judgment to correct the sentence and affirm it as so modified.
FACTUAL AND PROCEDURAL BACKGROUND
After a jury trial, defendant was convicted of (1) assault with a deadly weapon and by means of force likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(1)) and (2) possession of paraphernalia for smoking a controlled substance (Health & Saf. Code, § 11364, subd. (a)). The court found true the special allegations that defendant had one prior serious or violent felony conviction qualifying as a “strike” (§ 667, subd. (a), (b)-(i)) and had served one prior prison term. (§ 667.5, subd. (b)). On count 1, he was sentenced to the upper term of 4 years, doubled due to the prior strike (§ 667, subd. (e)(1)), with a 5-year consecutive enhancement (§ 667, subd. (a)(1)) and a 1-year consecutive enhancement (§ 667.5, subd. (b)); on count 2, he was sentenced to 174 days with 174 days credit for time served. Various fines and fees were also imposed.
All further statutory references are to the Penal Code, unless otherwise indicated.
The prosecution presented evidence that, on March 7, 2007, shortly after she moved out of the apartment she had shared with her mother and brother, Elena Martinez returned to her mother’s apartment to pick up the rest of her belongings, including a large mirror. Her brother, defendant Eugene Martinez, was lying on the couch in the living room when she arrived. Elena went into the bedroom and saw that the mirror had been shattered; she began yelling and cursing defendant, believing he had broken it. She began gathering clothes from the bedroom floor, still cursing at him; defendant came into the bedroom, sat on the bed, and began mimicking her. Defendant threatened to slit her throat, and she told him to go ahead. Defendant hit Elena in the back of the head and she fell forward; she turned to face him, expecting a fight. She was lying on the floor and defendant was on top of her; he stabbed her in the neck with a piece of the broken mirror; she struggled with him and he stabbed her in the chest. Then defendant got off her; she jumped up and told him she was calling the police. She ran outside and called 911; she had to call two or three times because she was hysterical. She told defendant she was going to press charges. Defendant stood in the front door eating sunflower seeds. A few minutes later, he left.
A police officer arrived and Elena told him where defendant might be found. Officers went to that residence and found defendant in close proximity to a methamphetamine pipe. Defendant admitted to them that it was his pipe and he had smoked methamphetamine just before the officers arrived.
Elena was treated by paramedics, but did not immediately go to the hospital. She went to where her mother was working, then went to the hospital an hour or two later and had the chest wound stitched.
Defendant testified that the night before the incident, his mother, Carmen Martinez, called and told him Elena had threatened her life. The day before the incident and earlier on the day of the incident, Elena drove past him and shouted obscenities at him. On the day before the incident, defendant broke Elena’s mirror because some of his clothes were missing and he blamed Elena. He then cleaned up the broken mirror.
Defendant also testified that, when Elena arrived at the apartment on March 7 and went in the bedroom, he followed her a few minutes later to make sure she did not take his belongings. He did not respond when she yelled obscenities at him. When he got up to leave, Elena sprang up and hit him in the eye. In response, he hit her in the back of the head. He took her to the ground and told her to threaten him like she had threatened their mother. They struggled on the floor for about 30 seconds, then he went outside and smoked. He denied stabbing her with a shard of the mirror. He presented evidence portraying Elena as aggressive; she once grabbed him by the throat and tore his shirt. Defendant claimed he hit Elena and held her down on the floor in self-defense.
The prosecution elicited testimony that defendant pled guilty to assault with intent to commit rape as a result of an incident in which he grabbed a 13-year-old neighbor by the neck, trapped her so she could not get away, and said he would not leave until he got what he wanted.
Defendant contends the trial court abused its discretion by allowing admission of evidence of the facts underlying defendant’s prior felony conviction, which defendant contends were more prejudicial than probative; the jury instruction on flight should not have been given because the evidence did not support it; the court erroneously imposed a one-year prior prison term enhancement when the same prior conviction was the basis for imposing a five-year prior serious felony enhancement; and an upper term sentence should not have been imposed.
DISCUSSION
I. Admission of Facts Underlying Prior Conviction
Defendant contends the trial court abused its discretion when it allowed evidence of the facts underlying his prior felony conviction to be admitted as evidence of his character for violence, because those facts were more prejudicial than probative. Defendant failed to preserve this issue for appeal by making a timely and specific objection on that ground.
“A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless:
“(a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion.” (Evid. Code, § 353, subd. (a).)
“The purpose of this rule ‘is to encourage a defendant to bring any errors to the trial court's attention so the court may correct or avoid the errors and provide the defendant with a fair trial.’” (People v. Carrillo (2004) 119 Cal.App.4th 94, 101.) “The objection requirement is necessary in criminal cases because a ‘contrary rule would deprive the People of the opportunity to cure the defect at trial and would “permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal.”’ [Citation.] ‘The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence … allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.’ [Citation.]” (People v. Partida (2005) 37 Cal.4th 428, 434.)
“‘While no particular form of objection is required [citation], the objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility.’” (People v. Holt (1997) 15 Cal.4th 619, 666-667.) “An objection to evidence must generally be preserved by specific objection at the time the evidence is introduced; the opponent cannot make a ‘placeholder’ objection stating general or incorrect grounds (e.g., ‘relevance’) and revise the objection later in a motion to strike stating specific or different grounds.” (People v. Demetrulias (2006) 39 Cal.4th 1, 22.)
Prior to trial, defendant moved to bifurcate trial of the special allegations of the prior conviction from trial of the current charges. The prosecutor indicated she was not opposed to bifurcation but, if defendant took the stand to testify, she intended to impeach him with the prior conviction of assault with intent to commit rape, a crime involving moral turpitude; in that event, the prosecution would ask that the trial not be bifurcated. Subsequently, defense counsel indicated he anticipated calling defendant as a witness and asked that the nature of the prior conviction not be disclosed if it was used for impeachment, because its nature was highly prejudicial. After balancing the factors relevant to both bifurcation and impeachment, the court conditionally ordered bifurcation, anticipating that, if defendant testified, he could be impeached with the prior conviction, referred to only as a serious felony conviction involving moral turpitude, without disclosing the nature of the felony.
In further pretrial proceedings, defense counsel indicated he intended to call defendant’s mother, Carmen, to testify that defendant and Elena had a history of fighting with each other, to support defendant’s claim of mutual combat or self-defense. After hearing Carmen’s proposed testimony at an Evidence Code section 402 hearing, the prosecutor took the position that Carmen’s proposed testimony about Elena fighting with defendant and being the aggressor constituted character evidence to show Elena’s propensity for violence; she expressed her intention to counter any such evidence with evidence of the facts underlying defendant’s prior conviction as character evidence of defendant’s propensity for violence. Defense counsel contended the evidence of Elena’s conduct was not offered as character evidence, but as evidence of defendant’s state of mind. The court concluded defendant was offering evidence of the character of the victim through specific instances of conduct as permitted by Evidence Code section 1103, subdivision (a), and the prosecutor would be permitted to respond by cross-examining defendant to elicit evidence of prior specific acts of defendant’s conduct under Evidence Code section 1103, subdivision (b), to show defendant’s propensity for violence. In accordance with that order, on cross-examination, the prosecutor questioned defendant about the facts underlying his prior conviction; defense counsel made no objection.
Evidence Code section 402 provides that, when a preliminary fact is necessary to admissibility of evidence, and that fact is in dispute, “[t]he court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury.”
Evidence Code section 1103, subdivisions (a) and (b), provide:
Defendant now contends evidence that defendant was convicted of assault with intent to commit rape and that the victim of the offense was a 13-year-old girl was highly prejudicial and should have been excluded under Evidence Code section 352. That section provides: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will … create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Defendant did not raise an Evidence Code section 352 objection to admission of evidence of the underlying facts of defendant’s prior conviction when the prosecutor proposed to admit that evidence as character evidence pursuant to Evidence Code section 1103. Defendant argued earlier that the conviction should be “sanitized” for purposes of impeachment in order to avoid undue prejudice, and the court agreed. For impeachment purposes, only evidence relating to defendant’s credibility was relevant. Specific facts of the prior offense showing violent or assaultive behavior were not relevant. Thus, in the discussion of the use of the prior conviction for impeachment purposes, the parties argued and the court considered the probative value of the evidence only as evidence of defendant’s credibility. The court balanced that probative value against the potential for prejudice.
When the prosecutor subsequently proposed to introduce the facts of the prior conviction as character evidence against defendant, defense counsel merely argued that evidence of Elena’s violence or aggression was not being offered as evidence of her character, but to show that defendant had reason to anticipate or fear her violence. He did not argue that, as evidence of defendant’s character for violence, the evidence was more prejudicial than probative and should be excluded pursuant to Evidence Code section 352. As a result, opposing counsel did not have the opportunity to argue about the extent to which the evidence was probative on the issue of character. The court did not have the opportunity to balance the probative value of the evidence to that issue against any potential prejudice admission of the evidence might engender. The parties and the court had no opportunity to try to closely tailor an order that would allow some relevant evidence to be admitted, but exclude any facts likely to result in undue prejudice.
Because defendant did not raise a timely and specific Evidence Code section 352 objection either at the time the court and counsel discussed admission of evidence of the facts of defendant’s prior offense as specific instances of conduct admissible under Evidence Code section 1103 to show defendant’s character for violence, or at the time defendant was questioned about the circumstances underlying the prior conviction, defendant failed to preserve that issue. It is not cognizable on appeal. (People v. Partida, supra, 37 Cal.4th at pp. 432-434.)
In any event, there was no prejudicial error. “No judgment shall be set aside … in any cause, on the ground of … the improper admission or rejection of evidence … unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” (Cal. Const., art. VI, § 13.) “[A] ‘miscarriage of justice’ should be declared only when the court, ‘after an examination of the entire cause, including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.” (People v. Watson (1956) 46 Cal.2d 818, 836.) Defendant asserts the facts that the prior offense involved a 13-year-old girl and that defendant admittedly had an intent to commit rape were irrelevant to this case and had a strong tendency to evoke an emotional bias against defendant. He contends those details of the offense should have been excluded.
The presentation of the evidence at trial downplayed those facts. The evidence elicited was that, in 2001, defendant lived next door to a 13-year-old girl, whose father had warned him to stay away from her. Defendant went to the neighbors’ house and knocked on the door; the girl answered. She was home alone. Defendant denied he took a step inside the house and grabbed the girl by the neck, but acknowledged the girl said that happened. Defendant pulled her toward him and trapped her so she could not get away; he told her, “Shut the fuck up. I’m not leaving ‘til I get what I want.” He physically assaulted the girl and pled guilty to assault with intent to commit rape. Defendant testified he pled guilty and did his time for the offense; it was something he regretted and was ashamed of.
In closing argument, the prosecutor did not dwell on the victim’s age or on the element of intent to commit rape. Instead, she emphasized the violence involved. She referred to defendant as a “convicted felon” with “a history of assaulting women.” She stated, “He got convicted for assaulting a woman, he’s on trial for assaulting his own sister, and his own mother testified, ‘Well, yeah. He slaps around his girlfriend too.’” In her rebuttal argument, the prosecutor stated, “He’s a convicted felon. He has a history of attacking women. I mean, he hits his own girlfriend. Well, I mean, he stabbed his sister, but he also hits his own girlfriend. And then he attacked someone that he didn’t even know.”
The presentation of evidence and argument relating to the facts underlying defendant’s prior conviction focused on the violence of the prior offense, not the age of the victim or the sexual nature of the crime. Violence was relevant to the issues of the case being tried. Defendant’s defense was that he hit Elena in the head in self-defense and he did not stab her with the shard of mirror. Even in defendant’s version of the incident, however, after Elena hit him in the eye, she was moving away from him, leaving the room, when he hit her in the back of the head. A police officer felt a “golf-ball-size knot” on the back of her head. Defendant told the officer he “hit her good” and it was a “solid hit”; defendant did not tell the officer Elena hit defendant first.
Defendant denied stabbing Elena with a shard of the mirror. Elena testified defendant stabbed her in the neck and chest with a piece of the mirror. The police officer observed a two-inch laceration to Elena’s neck and a four-inch laceration to her chest, as well as scratches on her right arm. Carmen observed two small wounds. The jury viewed the scars. Defense counsel pointed out no blood was found in the bedroom and there were only a few spots on the mirror shard; he argued either the wounds were self-inflicted or they were the result of falling on pieces of the broken mirror on the bedroom floor.
Considering all the evidence, we cannot say it is reasonably probable a result more favorable to defendant would have been reached if the nature of defendant’s prior conviction and the age of the victim had not been revealed. Consequently, even if defendant had preserved his objection for appeal, we would conclude that the admission of evidence of facts underlying his prior conviction did not amount to prejudicial error.
II. Jury Instruction on Flight
Defendant contends the jury instruction on flight as evidence of consciousness of guilt should not have been given because there was no evidence to support a finding that defendant fled after the alleged offense.
The court gave a modified version of Judicial Council of California Criminal Jury Instructions (2007), CALCRIM No. 372 as follows: “If the defendant fled after he was accused of committing the crime, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”
“In any criminal trial or proceeding where evidence of flight of a defendant is relied upon as tending to show guilt, the court shall instruct the jury substantially as follows:
“The flight of a person immediately after the commission of a crime, or after he is accused of a crime that has been committed, is not sufficient in itself to establish his guilt, but is a fact which, if proved, the jury may consider in deciding his guilt or innocence. The weight to which such circumstance is entitled is a matter for the jury to determine.
“No further instruction on the subject of flight need be given.” (§ 1127c.)
“‘In general, a flight instruction “is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.”’ [Citations.] Evidence that a defendant left the scene is not alone sufficient; instead, the circumstances of departure must suggest ‘a purpose to avoid being observed or arrested.’ [Citations.] To obtain the instruction, the prosecution need not prove the defendant in fact fled, i.e., departed the scene to avoid arrest, only that a jury could find the defendant fled and permissibly infer a consciousness of guilt from the evidence. [Citation.]” (People v. Bonilla (2007) 41 Cal.4th 313, 328.)
Elena testified that, after defendant assaulted her, she tried to call 911 to reach the police. Because she was hysterical, it took two or three tries until she finally reached an officer. While she was doing this, defendant was standing at the front door eating sunflower seeds and flicking them out the door. A few minutes later he left. While he was still standing at the door, she told him she was going to press charges against him. Thus, the evidence was not simply that defendant left the scene after the alleged assault. The testimony indicated defendant left shortly after Elena called the police and after she told defendant she intended to press charges. There was sufficient evidence from which the jury could infer that defendant left the scene in order to avoid arrest and did so because of a consciousness of guilt. The court did not err in giving the jury instruction on flight.
III. Sentence Enhancements
Defendant challenges the imposition of a five-year enhancement for the true finding on the allegation that defendant had a prior serious felony conviction (§ 667, subd. (a)) and a one-year enhancement for a true finding on the allegation defendant served a prior prison term (§ 667.5, subd. (b)). Both enhancements were based on the same conviction for assault with intent to commit rape. When both enhancements are based on the same conviction, only the greater enhancement may be imposed. (People v. Jones (1993) 5 Cal.4th 1142, 1149-1150.) Consequently, the one-year enhancement imposed pursuant to section 667.5, subdivision (b), must be stricken.
IV. Imposition of Upper Term
Defendant contends imposition of an upper term sentence on count 1 violated his Fifth, Sixth, and Fourteenth Amendment rights to jury trial, proof beyond a reasonable doubt, and due process. He bases his contention on the decisions in Cunningham v. California (2007) 549 U.S. 270 [127 S.Ct. 856] (Cunningham), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi). He asserts that People v. Black (2007) 41 Cal.4th 799 (Black II) incorrectly applied the rules set out in these decisions and was wrongly decided.
The United States Supreme Court cases held that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (See Apprendi, supra, 530 U.S. at p. 490; Blakely, supra, 542 U.S. at pp. 302-304; Cunningham, supra, 549 U.S. at p. __, [127 S.Ct. at p. 868].) The California Supreme Court in Black II held that, “imposition of the upper term does not infringe upon the defendant's constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions.” (Black II, supra, 41 Cal.4th at p. 816.)
The requirement of a jury determination of aggravating factors does not apply to prior convictions. The exception for prior convictions “applies not only to the fact of a prior conviction, but also to ‘an issue of recidivism which enhances a sentence and is unrelated to an element of a crime.’ [Citation.] Therefore, ‘“the fact of a prior conviction,” and related facts … may be judicially found at sentencing.’ [Citation.]” (People v. Medrano (2008) 161 Cal.App.4th 1514, 1520.) The trial court imposed the upper term based in part on defendant’s “prior record of serious criminal conduct both as an adult and as a juvenile,” which was “serious and violent in nature” and “indicate[d] a serious danger to society.” It was also based in part on his unsatisfactory prior performance on probation, due to his commission of another offense while on probation. These are recidivism issues which fall within the exception for prior convictions. (People v. Towne (2008) 44 Cal.4th 63, 75-76, 80-82.)
It was proper for the trial court to impose the upper term based on defendant's prior record of convictions and unsatisfactory performance on probation, aggravating factors that did not have to be submitted to a jury. Accordingly, the trial court's reliance on those factors did not run afoul of the rules set out in Cunningham. We are obligated to follow Black II and Towne. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Since there is at least one valid qualifying factor which justifies defendant's upper term sentence, his Cunningham claim is without merit. (Black II, supra, 41 Cal.4th at p. 813.)
DISPOSITION
The judgment is modified to strike the one-year enhancement imposed pursuant to section 667.5, subdivision (b). As so modified, the judgment is affirmed. The trial court is directed to amend the abstract of judgment to reflect this modification of defendant's sentence and to forward a certified copy of the amended abstract to the Department of Corrections.
WE CONCUR, LEVY, Acting P.J., DAWSON, J.
“(a) In a criminal action, evidence of the character or a trait of character (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) of the victim of the crime for which the defendant is being prosecuted is not made inadmissible by Section 1101 if the evidence is:
“(1) Offered by the defendant to prove conduct of the victim in conformity with the character or trait of character.
“(2) Offered by the prosecution to rebut evidence adduced by the defendant under paragraph (1).
“(b) In a criminal action, evidence of the defendant's character for violence or trait of character for violence (in the form of an opinion, evidence of reputation, or evidence of specific instances of conduct) is not made inadmissible by Section 1101 if the evidence is offered by the prosecution to prove conduct of the defendant in conformity with the character or trait of character and is offered after evidence that the victim had a character for violence or a trait of character tending to show violence has been adduced by the defendant under paragraph (1) of subdivision (a).”