Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Merced County No. 29810. Ronald W. Hansen, Judge.
John Ward, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez, Louis M. Vasquez, Lewis A. Martinez and Kathleen A. McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Before Wiseman, Acting P.J., Cornell, J. and Hill, J.
INTRODUCTION
Our original opinion in this case was filed on April 4, 2007, subsequent to the decision by the United States Supreme Court in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham) but before the California Supreme Court’s decisions in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval). After granting and holding defendant’s petition for review on September 12, 2007, the California Supreme Court transferred the matter to us with directions to vacate our original decision and reconsider the cause in light of Black II and Sandoval. The parties have provided supplemental briefing addressing these cases. After further consideration in light of Black II and Sandoval, we affirm the judgment and sentence. Except for our discussion of the constitutionality of defendant’s sentence, the opinion we now file is substantially the same as our opinion of April 4, 2007.
A jury convicted defendant Lo Kuan Saechao of attempted sexual battery (Pen. Code, § 243.4, subd. (a); count 1), corporal injury to a spouse or cohabitant (§ 273.5, subd. (a); count 2), unlawful taking or driving a vehicle (Veh. Code, § 10851, subd. (a); count 3), and false imprisonment (§ 236; count 4). In a bifurcated proceeding, the court found true the enhancement allegation in each count that defendant suffered a prior juvenile adjudication for a serious or violent felony (i.e., robbery) on April 3, 1993. Subsequently, the court granted defendant’s motion to strike the prior adjudication, and sentenced defendant to a total prison term of five years two months as follows: the upper term of four years on count 2, plus six months on count 1 (one-third the middle term), and eight months on count 3. Defendant’s sentence on count 4 was stayed under section 654.
Further statutory references are to the Penal Code unless otherwise specified.
On appeal, defendant contends: (1) the trial court erred by admitting evidence of prior acts of domestic violence under Evidence Code section 1109 because the statute is unconstitutional; and (2) the trial court erred by imposing the upper term based on facts not found by a jury. We affirm.
FACTS
On the night of September 20, 2005, defendant approached his former girlfriend, M.S., in the parking lot as she was leaving her place of work. Defendant asked to talk to her and for a ride home. M.S. initially declined, but when she unlocked the door of her car, defendant got into the back seat. Concerned for defendant because it was cold outside, M.S. decided to give him a ride home. During the drive, defendant moved up to the front passenger seat and the two argued. Defendant asked M.S. who her boyfriend was and told her he wanted to have sex with her. M.S. told defendant she was not going to have sex with him because they were not together.
When they arrived at defendant’s apartment, they stayed in the car and argued for about 20 to 30 minutes. M.S. testified that defendant wanted to continue talking about having sex and M.S.’s relationships with other guys. During this time the argument became physically violent. Defendant took M.S.’s car keys out of her hands, forced himself into the driver’s seat, and threw M.S. into the passenger’s seat. He also bit M.S. on the arm a couple times.
Eventually, defendant exited the car and went inside his house. M.S. followed him inside because she wanted to get her keys back. Once inside, defendant locked the door and pushed M.S. onto the couch. He got on top of her and tried to unbutton her pants. Defendant told M.S. he wanted to have sex with her. M.S., who was crying and screaming, told defendant no. At some point as M.S. was struggling to get away from defendant, he bit her on the back.
M.S. eventually was able to get up and open the front door. Defendant followed her outside and told her he would throw her keys in the bushes. M.S. told him, “Go ahead. I[’d] rather be outside looking than be inside the house with you.” M.S. then went to a neighbor’s house and called 911. Without M.S.’s permission, defendant got into M.S.’s car and drove away. While M.S. was speaking with the 911 dispatcher, defendant returned and asked her if she wanted her car back. M.S. replied, “no … it’s not a joke.” Defendant then drove away again.
Merced City Police Corporal Allen Ward responded to the 911 call. When he arrived, M.S. was standing outside on the sidewalk crying. Initially, M.S. told Officer Ward that her ex-boyfriend had just stolen her car. As M.S. kept talking, it became evident that more than a car theft had occurred, and he started asking her questions about domestic violence. Officer Ward also saw bite marks on M.S.’s arm and photographed them. But the digital photographs were accidentally lost during the process of transferring them to a computer. Officer Ward understood that the bites had occurred inside defendant’s apartment.
The prosecution offered evidence of prior acts of domestic violence against defendant’s ex-wife, Maily Moua, during an incident in November 2002. Moua testified that after their relationship ended, she was staying at a friend’s house, when defendant unexpectedly arrived at the house early in the morning. An argument ensued, during which defendant pushed Moua around. The responding police officer observed bruises on one of Moua’s arms.
The defense
According to defendant’s version of what occurred on September 20, 2005, he saw M.S. at the store where she worked and she agreed to his request to give him a ride home. They did not argue on the ride home. When they arrived, M.S. parked her car and came inside with defendant. They went to his bedroom, watched television for a while, and then started kissing and “making out.”
Defendant undressed M.S. and himself. As he was undressing M.S., he bit her on the elbow. She asked him to bite her again and he did. They then started having sex. Defendant was behind M.S., when she told him to bite her on the back. Defendant bit her back on her bare skin. Defendant claimed M.S. liked “rough sex” and that biting was part of “normal sex” for them.
After they had sex, M.S. asked defendant why he had not come over or called her. He told her had had been “busy working” and “kicking it” with his friends. M.S. became angry when he admitted that he had been hanging around with a girl. She then asked defendant if he had any money for her, and he said no because he had been shopping a lot recently. After they argued about money, M.S. became violent and started hitting defendant. Defendant asked M.S. for her car keys, so he could take a drive while she calmed down .M.S. gave him her keys, and he drove away in her car with her permission.
Defendant drove to his sister’s house, where he stayed for a while, watching a movie. He tried to call M.S.’s cell phone but was unable to reach her. He eventually called her at her mother’s house. Because M.S. was still mad at him, he dropped her car off at a McDonald’s restaurant for her to pick up. After dropping off the car, defendant’s sister picked him up and he spent the night at her house.
The next morning, defendant’s sister drove him back to his apartment. He realized he had M.S.’s cell phone when it started ringing. M.S. then came over to pick up her phone and told defendant she was going shopping. M.S. was nice to defendant and he did not think anything was wrong. He did not know she had called the police or made any reports against him.
Defendant acknowledged he had problems in the past with his ex-wife, Maily Moua, and had been arrested. During the incident in 2002, Moua was staying with a friend when defendant came to see her. When he arrived, he saw one of his male friends jumping over the fence. He confronted Moua, held her wrists, and caused her bruising. Defendant acknowledged a second incident occurred in June 2003, but claimed not to have a clear memory of that incident. On cross-examination, he denied that in the summer of 2003, he took Moua’s cell phone or bit her on the arm.
Rebuttal
Moua testified that in June 2003, she reported her cell phone had been stolen. The circumstances were that defendant had showed up at her house and after he left, the phone was gone. She also reported an incident, which had occurred a few days earlier. Moua testified that defendant “came to the house and then questioning my whereabouts and then he was biting me.” Moua testified that defendant bit her on the right arm, leaving a large bruise.
M.S. denied defendant’s version of what occurred on the night of September 20, 2005. She also disputed defendant’s claim that she enjoyed rough sex, and testified she never allowed defendant to bite her during their relationship.
DISCUSSION
Defendant contends the trial court erred by admitting evidence of his prior acts of domestic violence against Maily Moua under Evidence Code section 1109. Defendant argues that Evidence Code section 1109, on its face, violates constitutional due process guarantees. We disagree.
Evidence Code section 1109 provides: “(a)(1) Except as provided in subdivision (e) or (f), in 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.”
The appellate courts have repeatedly rejected challenges to Evidence section 1109 on due process grounds. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1025-1029; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. James (2000) 81 Cal.App.4th 1343, 1353; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1310; People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1334; People v. Johnson (2000) 77 Cal.App.4th 410, 416-419.) These cases relied on People v. Falsetta (1999) 21 Cal.4th 903, in which the Supreme Court concluded that a similar statute, Evidence Code section 1108, did not violate due process because the trial court’s discretion to exclude evidence under Evidence Code section 352 provides a procedural safeguard against prejudice. We likewise conclude Falsetta’s analysis is applicable to Evidence Code section 1109 and, for the reasons explained in these cases, reject defendant’s due process challenge to the statute.
II. Imposition of the upper term
Defendant contends the upper term sentence imposed on count 2 based on factual determinations made by the court, not the jury, violated his Sixth and Fourteenth Amendment right to a jury trial under Cunningham, supra, 549 U.S. __ [127 S.Ct. 856]. We conclude there was no error.
Because defendant was sentenced in May 2006, subsequent to the California Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I), but prior to the United States Supreme Court’s decision in Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], his failure to object to the sentencing proceedings does not forfeit his constitutional claim. (Sandoval, supra, 41 Cal.4th at p. 837, fn. 4 [“An objection in the trial court is not required if it would have been futile.” “Had defendant requested a jury trial on aggravating circumstances, that request clearly would have been futile, because the trial court would have been required to follow our decision in Black I and deny the request”].)
In Cunningham, the United States Supreme Court held that California’s determinate sentencing law violates a defendant’s right to a jury trial to the extent it permits a trial court to impose an upper term sentence based on aggravating factors found by the court instead of a jury. (Cunningham, supra, 549 U.S. at pp. __, __ [127 S.Ct. at pp. 860, 868-871].) The Cunningham court expressly disapproved of our Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I). (Cunningham, at p. __ [127 S.Ct. at p. 871].) In light of Cunningham, the United States Supreme Court vacated the judgment in Black I and remanded the matter to the California Supreme Court. (See Black v. California (2007) __ U.S. __ [127 S.Ct. 1210].) Upon remand, our Supreme Court decided Black II, supra, 41 Cal.4th 799, in which it 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.” (Id. at p. 816, italics added.) In arriving at this conclusion, the court relied in part on the well-established rule that “the right to a jury trial does not apply to the fact of a prior conviction” (id. at p. 818), citing United States Supreme Court decisions in Cunningham, supra, 549 U.S. at p. __ [127 S.Ct. at p. 868], Blakely v. Washington (2004) 542 U.S. 296, 301 (Blakely), Apprendi v. New Jersey (2000) 530 U.S. 466, 490, and Almendarez-Torres v. United States (1998) 523 U.S. 224, 243. “‘[R]ecidivism ... is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’” (Black II, supra, 41 Cal.4th at p. 818.)
In Sandoval, supra, 41 Cal.4th 825, the court held, if no aggravating factors have been found consistent with Sixth Amendment principles (that is, found to be true by a jury beyond a reasonable doubt, admitted by the defendant or included within the “recidivism” exception recognized by the United States Supreme Court in Cunningham and Blakely), the “denial of the right to a jury trial on aggravating circumstances is reviewed under the harmless error standard set forth in Chapman v. California (1967) 386 U.S. 18.” (Sandoval, supra, 41 Cal.4th at p. 838.) “[I]f a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless.” (Id. at p. 839.)
In this case, the trial court explained its decision to impose the upper term as follows:
“The Court selects the upper term because the factors in aggravation that the Court relies upon that he took advantage of a past relationship. He took advantage of a position of trust. He also -- the fact that he hasn’t learned. He had a prior misdemeanor [domestic violence], attended the class and still engages in similar violent behavior with his significant other whether it’s a spouse or girlfriend. [¶] And under those factors -- there are no factors in mitigation the Court finds meaningful and, therefore, the Court selects the upper term and sentences him to four years on Count 2.”
In our original opinion in this case, we held that the trial court’s imposition of the upper term on count 1 did not violate defendant’s federal constitutional right to a jury trial under Cunningham. Reconsideration of that conclusion in light of Black II, supra, 41 Cal.4th 799 and Sandoval, supra, 41 Cal.4th 825 does not lead to a different result. As we stated in our original opinion, the trial court clearly relied on defendant’s recidivism in making its sentencing decision. The trial court specifically noted defendant’s prior domestic violence conviction, his apparent failure to learn from that conviction, and his repetition in the instant offense of the same type of conduct underlying his prior conviction. The probation officer’s report reflects that in 2003, defendant was convicted of misdemeanor corporal injury to a spouse or cohabitant and received a probationary sentence. Thus, an aggravating circumstance was established in a constitutionally permissible manner. (Black II, supra, 41 Cal.4th at pp. 816-817.) As a result, the statutory maximum to which defendant was exposed was the upper term. (Ibid.) Therefore, imposition of the upper term did not infringe any of defendant’s rights and protections.
The presence of additional aggravating circumstances cited by the trial court does not compel a different result. Black II explains: “[S]o long as a defendant is eligible for the upper term by virtue of facts that have been established consistently with Sixth Amendment principles, the federal Constitution permits the trial court to rely upon any number of aggravating circumstances in exercising its discretion to select the appropriate term by balancing aggravating and mitigating circumstances, regardless of whether the facts underlying those circumstances have been found to be true by a jury.” (Black II, supra, 41 Cal.4th at p. 813; contra, People v. Cardenas (2007) 155 Cal.App.4th 1468, 1483 [“Here the trial court did not rely on a mix of factors in sentencing Cardenas to the upper term. It relied exclusively on its finding the crime involved ‘planning’ and ‘sophistication.’ While a jury could have found the crime involved planning and sophistication we cannot say beyond a reasonable doubt it would have done so”].)
DISPOSITION
The judgment is affirmed.