Opinion
C080174
03-08-2017
THE PEOPLE, Plaintiff and Respondent, v. THOMAS ANTHONY RUMPH, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Nos. 14M01178 & 15F01718)
Appointed counsel for defendant Thomas Anthony Rumph asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Finding no arguable error that would result in a disposition more favorable to defendant, we affirm the judgment.
We provide the following brief description of the facts and procedural history of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
BACKGROUND
In March 2015, Sergeant Robert Quinn and Officer Paul Curtis were on patrol when they saw defendant standing over a woman lying on the ground. As they approached, they saw the man kick the woman repeatedly, the kicks became increasingly forceful. The officers pulled over and exited their vehicle. Defendant continued to kick the woman and yelled at her to "get the fuck up." The officers detained defendant. The woman, Carmen Doe, was sobbing on the ground and yelling, "Get him away from me," as she started crawling away. Both Doe and defendant appeared intoxicated.
Doe had an abrasion above her right eye that was bleeding. Medics arrived and transported Doe to the hospital for treatment. Doe had swelling around her right eye, redness and dry blood around her mouth, and cuts and abrasions on her fingers, knuckle, and wrist. Dr. Kevin Whang, a staff radiologist at Kaiser, noted bruising and contusions on Doe's face, a small frontal hematoma, and a minimally displaced nasal bone fracture.
In jail recordings of conversations between defendant and Doe, defendant asked Doe to "say the right thing" and to "make this shit sound right and good." He told her that the girlfriend of another inmate had recanted, and as a result that inmate's sentence was reduced to 90 days. When Doe responded that he kicked her in the eye, he denied kicking her, stating, "I was nudging you." He urged her to state that "none of that shit happened" and that she was "mad pissed off."
Defendant testified he lived with Doe, and she was he was his "female, common law [wife of] 14, 15 years." He claimed he was walking his dog to the store when he saw Doe at a restaurant with two men he did not recognize. He called out to her and she looked up, startled, then started walking away in the other direction. She appeared "high." His dog was running behind her and she tripped and fell in the street. When she fell, she hit her head and it left a mark. She was crying as he approached her. He urged her to get up and nudged her with the side of his shoe. He denied kicking her in the face.
On direct examination, defendant admitted having committed a series of prior offenses spanning from 1981 to 2014. These included multiple theft convictions, vehicle tampering, lying to a police officer, criminal threats, and three prior convictions for domestic violence: a 1990 misdemeanor domestic violence conviction, a 1992 felony domestic violence conviction, and a 2014 misdemeanor domestic violence conviction involving Doe. He denied having relationship problems with Doe.
On cross-examination, he was asked if he had been contacted by law enforcement multiple times over the last year and a half regarding alleged domestic violence incidents involving Doe. He denied the police contacts, and claimed Doe had a history of becoming intoxicated and screaming in the yard, causing people to call the police. The prosecutor impeached him with the 2014 misdemeanor domestic violence conviction, which had resulted from his guilty plea. The prosecution introduced photographs of Doe from the 2014 case, which showed an abrasion on her lip and a contusion on her back. Defendant denied that he had caused the injury by punching Doe in the face with a closed fist, throwing her to the ground, and kicking her. He claimed that the apparent injury to her lip was the result of a heat rash that had broken open.
The Penal Code Section 273.5 Offense: Case No. 15F01718
An amended information charged defendant with a felony violation of Penal Code section 273.5, unlawful infliction of corporal injury on a spouse or cohabitant (count one), and a felony violation of section 245, subdivision (a)(4), assault with force likely to cause great bodily injury (count two). As to count one, the information also alleged that defendant had sustained a prior conviction of section 273.5. (§ 273.5, subd. (f)(1).) The information also alleged that defendant had previously been convicted of criminal threats (§ 422), a serious felony within the meaning of section 1192.7. The information alleged two prison priors (§ 667.5, subd. (b)).
Undesignated statutory references are to the Penal Code. --------
A jury found defendant guilty on both counts. In bifurcated proceedings, the trial court found the prior conviction allegations true. The trial court denied defendant's motion to strike the prior conviction under People v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court imposed the upper term of five years in state prison, doubled to 10 years by operation of section 667, subdivision (e)(1), an additional two years for the two prison prior allegations for an aggregate sentence of 12 years. The trial court stayed imposition of sentence on count two pursuant to section 654.
The trial court imposed a restitution fine of $3,600 (§ 1202.4), and imposed and stayed the same amount in a parole revocation fine (§ 1202.45). The trial court also imposed a $384.94 jail booking fee (Gov. Code, § 29550.2), a $64.82 jail classification fee (Gov. Code, § 29550.2), an $80 court operation fee (§ 1465.8), and a $60 court facility fee (Gov. Code, § 70373).
The Probation Violation: Case No. 14M01178
As a result of his February 26, 2014, conviction for a misdemeanor violation of section 273.5, defendant was granted probation. The probation department filed a petition to revoke defendant's probation, alleging the arrest that served as the basis for case No. 15F01718 violated the terms and conditions of his probation. The trial court terminated probation without imposing any additional time.
DISCUSSION
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief setting forth the facts of the case and requests that we review the record and determine whether there are any arguable issues on appeal. (People v. Wende, supra, 25 Cal.3d 436.)
Defendant has filed a supplemental brief arguing: (1) under Evidence Code section 452.5 the certified rap sheets of his prior convictions were not properly admitted to prove the conduct underlying the convictions; (2) the conduct revealed in the certified rap sheets is too vague and uncertain for use as impeachment or propensity; (3) the vague facts in the prior conviction records are insufficient for a "proper Castro/Beagle analysis"; (4) the vague facts admitted from the fact of the prior conviction are insufficient for admissibility under Evidence Code sections 1101, subdivision (b) and 1109; (5) "introduction of court records of a conviction as a substitution for cross-examined, sworn testimony" violates defendant's confrontation rights; (6) there is insufficient evidence to support the conviction; and, (7) that this court can dismiss his strike priors.
Admission of Prior Convictions/Rap Sheet
We review the admissibility of evidence under an abuse of discretion standard. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) "A trial court abuses its discretion when its ruling 'falls outside the bounds of reason.' (People v. DeSantis (1992) 2 Cal.4th 1198, 1226.)" (People v. Wesson (2006) 138 Cal.App.4th 959, 969.) "Evidence Code section 452.5, subdivision (b) creates a hearsay exception allowing admission of qualifying court records to prove not only the fact of conviction, but also that the offense reflected in the record occurred." (People v. Duran (2002) 97 Cal.App.4th 1448, 1460.)
We have not found in the record an indication that the records of conviction were utilized to establish the facts underlying the convictions; rather than the fact of the conviction and the least adjudicated elements of the conviction. We find that the trial court did not abuse its discretion in admitting evidence of defendant's prior offenses under Evidence Code sections 1109 and 352. The prior offense of domestic violence, specifically section 273.5, was the same offense charged in the current case, and thus relevant. The prior offenses were not remote. Although one of the offenses was over 20 years old, defendant had not lived a crime-free life since. In fact, he had sustained multiple intervening convictions and served numerous prison terms. Defendant's guilty plea resolved the issue of certainty. The jury would not be distracted or confused by the prior convictions, because defendant had been convicted of these offenses. The evidence was sufficiently similar because they were domestic violence offenses. There was no burden on defendant to defend against these prior offenses, because he had pleaded guilty. The admission of documentary evidence removed much of the potential inflammatory details of the prior offenses. Thus, we conclude that the trial court executed its duty by carefully weighing the probative value of the evidence against its prejudicial effect. (People v. Wesson, supra, 138 Cal.App.4th at pp. 969-970.)
Prior felony convictions involving moral turpitude may be used to impeach a witness in a criminal proceeding. (People v. Castro (1985) 38 Cal.3d 301, 306.) Under Castro, "in determining whether a crime is one of moral turpitude, a court must look only to the elements of the offense and decide whether its least adjudicated elements necessarily involve moral turpitude." (People v. White (1992) 4 Cal.App.4th 1299, 1302.) That is, the determination that an offense is a crime of moral turpitude does not require an examination of the facts underlying the conviction. The certified records of conviction allow the court to perform the analysis of the least adjudicated elements of the offense and determine if the offense necessarily involves moral turpitude.
Nor were defendant's confrontation rights violated by the admission of the records of conviction. "The documentary evidence of defendant's prior convictions was nontestimonial; the determination of the truth of defendant's prior convictions based on those documents did not violate defendant's Sixth Amendment confrontation rights." (People v. Larson (2011) 194 Cal.App.4th 832, 838.)
Sufficiency of the Evidence
"In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears 'that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction].' [Citation.]" (People v. Bolin (1998) 18 Cal.4th 297, 331.) On this record, there is ample evidence to support the conviction. It was uncontested that Doe and defendant were living together and had a dating relationship. Two police officers saw defendant repeatedly kick her. Doe sustained multiple contusions, a hematoma, and a nasal bone fracture. That is sufficient evidence to sustain the conviction.
Dismissal of Prior Strikes
Trial courts have discretion under section 1385 to dismiss a prior strike when a court finds a defendant falls outside the spirit of the three strikes law. (§ 1385; People v. Superior Court (Romero), supra, 13 Cal.4th at pp. 529-530.) In deciding whether to exercise this discretion, the court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
Appellate courts review a trial court's "failure to dismiss or strike a prior [felony] conviction allegation . . . under the deferential abuse of discretion standard." (People v. Carmony (2004) 33 Cal.4th 367, 374.) In reviewing for abuse of discretion, we are "guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at pp. 376-377.)
We find no such abuse of discretion here. Defendant has not put forth any argument that the trial court's decision was irrational or arbitrary. It was not. The trial court considered the probation report, and counsel's arguments at the sentencing hearing. Defendant's criminal history was long, and virtually unabated, despite periods of incarceration. In fact, defendant was on probation when he committed this offense. He has a history of domestic violence and criminal and abusive behavior towards Doe and his mother. There was nothing in the record that suggested defendant fell outside the spirit of the three strikes law.
Having examined the record, we find no arguable error that would result in a disposition more favorable to defendant.
DISPOSITION
The judgment is affirmed.
/s/_________
Blease, J. We concur: /s/_________
Raye, P. J. /s/_________
Renner, J.