Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Michael E. Pastor, Judge. Los Angeles County Super. Ct. No. BA304348.
William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters, and Susan Sullivan Pithey, Deputy Attorneys General, for Plaintiff and Respondent.
TURNER, P. J.
Defendant, Eric Latte Moultrie, appeals from his convictions for two counts of assault by means of force likely to produce great bodily injury upon a peace officer (Pen. Code, § 245, subd. (c)) and two counts of resisting by the use of force or violence on an executive officer. (§ 69.) Defendant admitted that he was previously convicted of a serious felony. Defendant argues the trial court improperly instructed the jury with CALJIC rather than CALCRIM instructions and improperly imposed the upper term as to count 1. The Attorney General argues the trial court should have imposed additional mandatory court security fees and state court construction penalties. Also, the Attorney General contends the abstract of judgment should be corrected to accurately reflect the sentence imposed by the trial court. We affirm with modifications.
All further statutory references are to the Penal Code unless otherwise indicated.
We view the evidence in a light most favorable to the judgment. (Jackson v. Virginia (1979) 443 U.S. 307, 319; People v. Elliot (2005) 37 Cal.4th 453, 466; People v. Osband (1996) 13 Cal.4th 622, 690; Taylor v. Stainer (9th Cir. 1994) 31 F.3d 907, 908-909.) On November 18, 2005, Los Angeles County Sheriff’s Deputies Cary Tong and Carlos Ortega were working in the men’s central jail. Both deputies were dressed in uniform. The deputies instructed defendant and several other inmates gathered in the laundry area to return to their cells. Defendant told Deputy Tong: “‘Fuck You. Come out and make me.’” Deputy Tong stepped out to speak with defendant. Defendant took a step back, clenched his fists, and took a fighting stance. Deputy Tong spoke directly to defendant. Defendant was ordered to turn around and put his hands behind his back. Deputy Tong went to handcuff and speak to defendant. Defendant lunged at Deputy Tong. Deputy Tong was struck on the face five or six times by defendant. During the assault, defendant used his fists. Deputy Tong swung back in an effort to defend himself.
Deputy Ortega came to the aid of Deputy Tong. Defendant then turned toward Deputy Ortega. Defendant attempted to grab Deputy Ortega. Deputy Ortega pulled away. Deputy Ortega then punched defendant twice in the face. Defendant swung several times toward Deputy Ortega. Eventually, defendant struck Deputy Ortega in the face. Defendant took Deputy Ortega’s pen or pencil. The pen or pencil had been in Deputy Ortega’s pocket. Defendant attempted to stab Deputy Ortega with the pen or pencil. Both defendant and Deputy Ortega fell to the floor. Deputy Ortega hit his head on the protective cage. Defendant then hit Deputy Ortega twice in the face with a closed fist.
Deputy Tong was able to pull defendant off Deputy Ortega. Deputy Tong then sprayed defendant with pepper spray. Defendant ran back into the laundry area where other inmates were congregated. Other deputies responding to a call for assistance ultimately handcuffed defendant.
Deputy Ortega received a laceration on the top of his head, which required two stitches. Deputy Ortega also had surgery for a broken bone in his hand. Deputy Tong suffered a sore face and lip. Both deputies were concerned for their safety during the fight.
First, defendant argues the trial court improperly instructed the jurors with CALJIC rather than CALCRIM instructions thereby resulting in structural error equivalent to not instructing the jury at all. Prior to trial, the trial court specifically inquired of counsel, “Do you have any preference, folks, as to which jury instructions I use, CALJIC or CAL CRIM?” The prosecutor responded, “I am most familiar with CALJIC, but I’ll pull whatever the court asks.” The trial court then asked defense counsel, “Does the defense have any preference?” Defense counsel responded: “The same way. I am more familiar with CALJIC than CAL CRIM, but whatever the court wants.” Thereafter, the trial court said: “Let’s just use CALJIC. Let’s just use it. If it is necessary to modify any instruction, we can certainly do that, but CALJIC has withstood the test of time and appellate scrutiny. So that is what we will do.”
Effective January 1, 2006, the California Judicial Council adopted the new CALCRIM instructions as the recommended official instructions. At the time of defendant’s trial in November, 2006, California Rules of Court former rule 855(e), (now renumbered as rule 2.1050) stated in pertinent part: “(a) The California jury instructions approved by the Judicial Council are the official instructions for use in the state of California. The goal of these instructions is to improve the quality of jury decision making by providing standardized instructions that accurately state the law in a way that is understandable to the average juror. [¶] . . . [¶] (e) Use of the Judicial Council instructions is strongly encouraged. If the latest edition of the jury instructions approved by the Judicial Council contains an instruction applicable to a case and the trial judge determines that the jury should be instructed on the subject, it is recommended that the judge use the Judicial Council instruction unless he or she finds that a different instruction would more accurately state the law and be understood by jurors. . . .”
All further references to rules refer to the Rules of Court.
In People v. Thomas (2007) 150 Cal.App.4th 461, 465-466, our colleagues in Division Eight of this appellate district held: “[T]he use of the CALCRIM instructions was not mandatory, but merely ‘strongly encouraged’ and ‘recommended.’ . . . [¶] The Judicial Council’s adoption of the CALCRIM instructions did not render any of the CALJIC instruction invalid or ‘outdated,’ . . . . CALJIC instructions that were legally correct and adequate on December 31, 2005, did not become invalid statements of the law on January 1, 2006. Nor did their wording become inadequate to inform the jury of the relevant legal principles or too confusing to be understood by jurors. The Judicial Council’s adoption of the CALCRIM instructions simply meant they are now endorsed and viewed as superior. No statute, Rule of Court, or case mandates the use of CALCRIM instruction to the exclusion of other valid instructions.” In Thomas, the defendant objected to two specific instructions, claiming they were outdated and their use constituted structural error. Our Division Eight colleagues found the CALJIC instructions in question were legally valid and acceptably worded. Moreover, the Thomas court found no structural error resulted from their use: “The prejudicial impact, if any, of an error consisting of the use of one form of a jury instruction correctly stating the law, as opposed to another instruction also correctly stating the same legal principles, can readily be assessed. Such an error does not affect the framework within which the trial proceeds, but is simply an error in the trial process itself.” (People v. Thomas, supra, 150 Cal.App.4th at p. 467.) Ultimately, the court held: “[T]he purported error was necessarily harmless. Appellant’s jury was neither incorrectly nor inadequately instructed.” (Ibid.)
In this case, defendant does not specify which instructions he found objectionable. Rather, defendant argues that the use of the new CALCRIM instructions is mandatory. Defendant further suggests, “Finding structural error in this case would advance the use of the mandatory CALCRIM instructions because the failure to use applicable CALCRIM instructions would carry a stiff penalty; a guaranteed new trial.” We disagree with both contentions. Absent a showing of prejudice, any error in instructing with CALJIC instructions was harmless.
Second, citing to Blakely v. Washington (2004) 542 U.S. 296, 301, and Apprendi v. New Jersey (2000) 530 U.S. 466, 490, defendant argues that his Sixth and Fourteenth Amendment right to a fair and impartial trial by jury and due process were violated by the trial court’s imposition of the upper term because there was no jury determination of the aggravating factors. In the recent case of People v. Black (July 19, 2007, S126182) ___ Cal.4th ___, ___, the California Supreme Court examined the imposition of an upper term under the state determinate sentencing law in light of Cunningham v. California (2007)___ U.S. ___ [127 S.Ct. 856, 863-864]. Our Supreme Court held: “[A]s long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi [v. New Jersey, supra, 530 U.S. 466] and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (People v. Black, supra, ___ Cal.4th at p. ___, original italics.) The Black court further held: “It follows 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.” (People v. Black, supra, ___ Cal.4th. at p. ___.)
In this case, the information alleged and the jury found beyond a reasonable doubt, as to count 1, that defendant personally inflicted great bodily injury within the meaning of section 12022.7, subdivision (a). Therefore, the jurors’ findings constituted one “legally sufficient aggravating circumstance” that justified the imposition of the upper term as to count 1. In addition, the trial court noted: “Mr. Moultrie does have an active and long-standing criminal history. His prior convictions are numerous, and they are qualitatively of increasing seriousness.” Thereafter, the trial court enumerated defendant’s prior convictions. The trial court also noted: “And specifically based upon [Apprendi] and Booker, and other cases from the United States Supreme Court, I am looking at the recidivism of the defendant, his prior criminal history as a very distinct and separate basis for the imposition of the high base term in this case, as well as the jury’s finding as true that the defendant was convicted of each offense and inflicted great bodily injury.” As a result, defendant’s constitutional right to a jury trial was not violated by the trial court’s imposition of the upper term sentence for his conviction of assault by means of force likely to produce great bodily injury. The “‘statutory maximum’” sentence to which defendant was exposed was the upper term. (People v. Black, supra, ___ Cal.4th at p. ___.)
Third, the Attorney General argues that the trial court should have imposed state court construction penalties. We agree. The trial court imposed an $8,000 section 1202.4, subdivision (b)(1) restitution fine and stayed the $8,000 section 1202.45 parole revocation restitution fine. These two restitution fines are not subject to section 1464, subdivision (a) and Government Code section 76000, subdivision (a) penalty assessments. (§ 1202.4, subd. (e); People v. Sorenson (2005) 125 Cal.App.4th 612, 617; People v. McHenry (2000) 77 Cal.App.4th 730, 734.) However, the fines are subject to a Government Code section 70372, subdivision (a) state court construction penalty which, states in part, “[T]here shall be levied a state court construction penalty, in addition to any other state or local penalty including, but not limited to, the penalty provided by Section 1464 of the Penal Code and Section 76000 of the Government Code, in an amount equal to five dollars ($5) for every ten dollars ($10) or fraction thereof, upon every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . . .” The state court construction penalty applies to “every fine, penalty, or forfeiture imposed and collected by the courts for criminal offenses . . .” which includes restitution fines. Therefore, a state court construction penalty of $4,000 is to be added to both the section 1202.4, subdivision (b)(1) and 1202.45 restitution fines. (Needless to note, the additions to the section 1202.45 parole revocation restitution fines are stayed.)
Fourth, the Attorney General argues that the trial court should have imposed a $20 court security fee pursuant to section 1465.8, subdivision (a)(1) as to each count. We agree. (See People v. Schoeb (2005) 132 Cal.App.4th 861, 865-866.) The trial court imposed only one section 1465.8, subdivision (a)(1) court security fee. Four section 1465.8, subdivision (a)(1) fees should have been imposed.
Fifth, the Attorney General argues that the abstract of judgment should be amended to more accurately reflect the sentence imposed. Here, the trial court imposed the upper term of five years as to count 1 and then doubled it pursuant to section 667, subdivisions (b) through (i). The trial court also imposed a five-year enhancement pursuant to section 667, subdivision (a)(1). The abstract of judgment reflects only a five-year sentence as to count 1 and two five-year enhancements pursuant to section 667, subdivision (a)(1). The trial court is to personally insure the abstract of judgment is corrected to comport with the modifications we have ordered. (People v. Acosta (2002) 29 Cal.4th 105, 109, fn. 2; People v. Chan (2005) 128 Cal.App.4th 408, 425-426.)
The judgment is affirmed as modified to impose the state court fees and penalties as noted. The trial court is to personally insure a corrected abstract of judgment is prepared and forwarded to the Department of Corrections and Rehabilitation.
We concur: MOSK, J. KRIEGLER, J.