Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. F. Paul Dickerson, III, Judge, Super.Ct.No. SWF013581
Allison H. Ting, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Barry Carlton, Supervising Deputy Attorney General, and Marissa Bejarano, Deputy Attorney General, for Plaintiff and Respondent.
OPINION
HOLLENHORST, J.
A jury found defendant and appellant Gregory Saulsberry guilty of criminal threats (Penal Code, § 422, count 1), assault with a deadly weapon by means of force likely to produce great bodily injury (§ 245, subd. (a)(1), count 2), and corporal injury to a cohabitant. (§ 273.5, subd. (a), count 3.) Defendant admitted that he had served two prior prison terms. The trial court sentenced him to a term of seven years eight months in state prison, consisting of the upper term of four years on count 2, eight months on count 1, and one year on count 3, plus two consecutive one-year terms on the prior prison enhancements.
All further statutory references will be to the Penal Code, unless noted.
On appeal, defendant contends that there was insufficient evidence to support his conviction of making criminal threats, and that the court the court erred in imposing the upper term on count 2, pursuant to Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely) and Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham). We affirm.
FACTUAL BACKGROUND
Defendant and the victim lived together, and had been together for 23 years by the time of the trial. The victim considered their relationship to be that of a common law marriage, and they had one son together. Marilyn Dell and Lisa Hovelsrud were their neighbors.
Defendant served a term in state prison for possession of methamphetamine, and he returned home on September 15, 2005. On September 17, 2005, the victim told defendant that she had been unfaithful while he was in custody. Defendant got angry and yelled at her. Dell heard a lot of screaming and heard defendant yell profanities at the victim and call her a whore. Defendant also told the victim he was going to “kick her ass.” Hovelsrud heard glass breaking and heard the victim trying to calm defendant down and telling him to be quiet or the neighbors would call the police. Hovelsrud then saw defendant, who was still angry, spray paint the side of the house with the phrases “[e]at shit” and “fuck you.” Defendant and the victim made amends that evening.
The next morning, the victim told defendant that there was dope in the house, and defendant got upset again. They started yelling at each other. Defendant took a baseball bat and started breaking things in the garage and the house, such as windows, glass cabinets, and furniture. Dell saw the victim come out on the porch, and defendant followed with the bat in his hand. He swung the bat at the victim, and she jumped back because she was afraid. At one point, defendant yelled at the victim, “‘I’m going to kill you, bitch.’” Dell called the police. The yelling continued for at least one hour before the police arrived.
Hovelsrud also heard the yelling on September 18, 2005, starting at 6:00 a.m. She saw defendant walking around with a baseball bat, and she heard him say something about “bashing [the victim’s] head in.” Hovelsrud saw defendant swing the bat at the victim’s head, and saw the victim duck. Hovelsrud also saw defendant slap and kick the victim. Hovelsrud called the police twice.
When the police arrived, the victim ran out to them. After the police secured defendant, Hovelsrud went over to see the victim. She noted that the victim was visibly shaken. At trial, Hovelsrud testified that the victim told her that defendant was angry at her for cheating on him, and that he hit her. Hovelsrud observed that the victim had a black eye. The victim thanked Hovelsrud for calling the police. Hovelsrud testified that in late November 2005, the victim asked her to write a “helpful” letter saying that she did not see what she saw.
At trial, Dell testified that, after the police came and secured defendant, she also talked to the victim. She described the victim as being upset and hurt. She observed the victim’s bruise under her eye and a small cut on her head.
Officer Eric Clemons, one of the responding officers, also testified. He said that when he first arrived at the victim’s house, the victim was upset and her face was red because she had been crying. He observed that she had bruising around her left eye. The victim told him that defendant had hit her with a closed fist the night before, when he was angry with her for cheating on him. The victim told Officer Clemons that early that morning, defendant started drinking, and “broke up the house” with a bat. On the front porch, defendant swung the bat at her and said, “‘If the police come to the house, I will bust your head.’” Officer Clemons interviewed defendant, and defendant told him he was angry at his wife for being unfaithful. Furthermore, defendant admitted that he struck her with his fist, on the left side of her head, and caused her injury.
Officer George Graves, another officer who was dispatched to the victim’s house, testified that when he arrived, defendant was still holding the bat. He drew his weapon and yelled at defendant to drop the bat. He also yelled at the victim to run toward him, and she immediately ran toward him, at a quick pace. Officer Graves said her face was red, and she was crying.
The victim testified at trial and said that she and defendant had reconciled and that they were living together at the time of the trial. The victim testified that defendant did not hit, kick, slap, or threaten her. She specifically denied ever telling the police that defendant struck her on the left side of her face or caused her injury, and claimed that that portion of the police report was inaccurate. She said that, on the second day of fighting, after she told him that there was dope in the house, defendant yelled at her. She went outside on the porch and took a bat with her. She said she wanted to be able to get defendant’s attention by swinging the bat at him, in case he yelled at her again. Defendant came out on the porch and started yelling again, so the victim said she swung the bat; defendant went to grab the bat from her, and “it made [her] knuckles clip [her] eye.” In other words, she gave herself a black eye. The victim also testified that she was in a tirade, and that she broke the glass on her kitchen cabinets and the mirror in the front room, and threw things around the house.
The victim further said that she did not talk to Dell after the police left the scene. The victim also claimed that she did not need Hovelsrud to call the police on September 18, 2005, and that she was upset at her for calling them.
ANALYSIS
I. There Was Sufficient Evidence to Support Defendant’s Conviction
Defendant argues that there was insufficient evidence to sustain his conviction for criminal threats the victim testified that she was not in fear, and no one disputed that “fact.” We reject defendant’s position.
A. Standard of Review
In reviewing a claim regarding the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether any reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Carter (2005) 36 Cal.4th 1114, 1156.) “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.) This court “may not redetermine the credibility of witnesses, nor reweigh any of the evidence, and must draw all reasonable inferences, and resolve all conflicts, in favor of the judgment. [Citation.]” (People v. Poe (1999) 74 Cal.App.4th 826, 830 (Poe).) “‘An appellate court must accept logical inferences that the [finder of fact] might have drawn from the circumstantial evidence.’ [Citation.]” (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573 (Sanghera).)
B. The Evidence Was Sufficient
A defendant is guilty of criminal threats when the prosecution proves that: “(1) [he] willfully threatened to commit a crime that would result in death or great bodily injury; (2) he made the threat with the specific intent that it be taken as a threat; (3) the threat, on its face and under the circumstances in which it was made, was so unequivocal, unconditional, immediate and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution of the threat; and (4) the threat caused the person threatened reasonably to be in sustained fear for his own safety. [Citations.]” (In re Ricky T. (2001) 87 Cal.App.4th 1132, 1136 (Ricky T.).) Defendant argues that the prosecution only failed to establish the fourth element, which requires that “[a] victim must actually be in sustained fear, and the sustained fear must also be reasonable under the circumstances.” (Id. at p. 1140.) For there to be “sustained fear,” it must last “a period of time ‘that extends beyond what is momentary, fleeting, or transitory.’” (Ibid.)
The evidence here showed that the victim experienced sustained fear. On their first day of fighting, defendant and the victim got into an argument after she told him she had been unfaithful to him. In his rage, defendant yelled profanities at the victim, called her a whore, threatened to “kick her ass,” spray painted the side of their house with profane phrases, and punched her left eye with a closed fist. The next morning, after the victim told defendant there was dope in the house, he became angry at the victim again, slapped and kicked her, and destroyed things in the house with a bat. The evidence showed that defendant threatened to bash her head in and kill her, and that he swung the bat at her head. Out of apparent fear, the victim ducked and jumped out of the way.
Officer Graves testified that when he arrived at the scene and told the victim to run toward him, she came immediately and quickly. The fact that the victim ran away from defendant as soon as the police arrived indicated that she feared him and wanted to be protected from him by the police. Furthermore, the evidence showed that the victim thanked Hovelsrud for calling the police. Two police officers testified that the victim’s face was red from crying. Similarly, Hovelsrud testified the victim was visibly shaken. The victim’s actions and appearance signified that she was afraid for her own safety.
Viewing the evidence in the light most favorable to the judgment, we conclude that a reasonable trier of fact could have easily inferred from the circumstances that the victim was in sustained fear.
Defendant argues the evidence was insufficient to support the element of sustained fear since the victim stated that she was not in fear. In support of this claim, he cites to Officer Clemons’s testimony on cross-examination, when he was questioned about the contents of his police report. Defense counsel asked Officer Clemons whether it was true that there was no mention in the report that the victim was in fear of defendant. Officer Clemons initially responded that he believed that the victim said she did not want a restraining order because “she was not in fear.” However, Officer Clemons then refreshed his memory with the police report, and corrected his testimony by stating: “Actually, it didn’t say anything about fear, it just said that she didn’t want a restraining order.” Thus, Officer Clemons’s testimony does not support defendant’s claim that the victim stated she was not in fear.
In his reply brief, defendant correctly asserts that the victim testified at trial that she was not in fear on September 17, 2005, or September 18, 2005. However, the jury had every right and reason to reject the victim’s testimony. Defendant and the victim were a couple for 23 years by the time of the trial. She considered their relationship to be that of a common law marriage, and they had one son together. Because they had reconciled after the incident at hand, the victim changed her story at trial. She initially told the police that defendant hit her with a closed fist when he was angry with her for cheating on him. She said that he destroyed things in the house with the bat. She also told the police that defendant swung the bat at her and said, “‘If the police come to the house, I will bust your head.’” In contrast, at trial, she said that defendant never threatened her, and she denied ever telling the police that he struck her. Instead, the victim claimed responsibility for destroying the house with the bat and giving herself the black eye. Significantly, the victim’s story at trial contradicted defendant’s own admission to the police that he struck her with his fist and caused her injury. Moreover, the evidence showed that, while the victim initially told Hovelsrud that defendant hit her and thanked Hovelsrud for calling the police, she later asked Hovelsrud to write a letter saying that she did not see what she saw, “because it would be really helpful.” Clearly, the victim no longer wanted defendant to be convicted. The jury did not find the victim to be a credible witness, and thus did not believe her testimony that she was not in fear. We cannot redetermine her credibility. (People v. Poe, supra, 74 Cal.App.4th at p. 830.)
Defendant further argues, for the first time in his reply brief, that the evidence only supported a finding that the victim was in temporary fear, at best, rather than sustained fear. “Withholding a point until the reply brief deprives the respondent of an opportunity to answer it . . . . Hence, a point raised for the first time therein is deemed waived and will not be considered, unless good reason is shown for failure to present it before. [Citations.]” (People v. Baniqued (2000) 85 Cal.App.4th 13, 29, fn omitted (Baniqued).) No good cause is shown here. Thus, defendant has waived this point.
In sum, the evidence was sufficient to support defendant’s conviction of criminal threats.
II. The Court Properly Imposed the Upper Term
Defendant contends that his Sixth Amendment right to a jury trial, as defined in Blakely, supra, 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), was violated when the trial court imposed the upper term sentence on count 2. We disagree and conclude that the present sentence may be affirmed based on defendant’s recidivism.
A. The Upper Term Was Supported by Factors That Did Not Need to Be Found by a Jury
In Blakely, the U.S. Supreme Court affirmed that “‘[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.’” (Blakely, supra, 542 U.S. at p. 301, quoting Apprendi, supra, 530 U.S. at p. 490.) In Cunningham, supra, 127 S.Ct. at page 860, the United States Supreme Court held that the imposition of an upper term sentence under California’s determinate sentencing law, based solely on a judge’s factual findings, violates a defendant’s Sixth and Fourteenth Amendment right to a jury trial.
At the outset, the People assert that defendant forfeited his Blakely claim by failing to raise it at the sentencing hearing. We disagree. At the time of defendant’s sentencing, the decision in People v. Black (2005) 35 Cal.4th 1238 (Black) was the controlling precedent. Black held that Blakely did not apply to California’s determinate sentencing law. (Black, at p. 1244.) In light of that holding, it would have been futile for defendant to raise a Blakely objection at sentencing. “Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence.” (People v. Welch (1993) 5 Cal.4th 228, 237.) Thus, defendant did not waive his claim of Blakely error by failing to object in the trial court. Nonetheless, his contention fails.
The court here based the upper term on several aggravating factors: the crime involved great violence and cruelty, the crime involved damage of great monetary value, defendant engaged in violent conduct which indicated a serious danger to society, his prior convictions were numerous and increasing in seriousness, he served a prior prison term, he was on parole when the crime was committed, and his past performance on probation and/or parole was unsatisfactory. The People argue that defendant’s upper-term sentence was based on the court’s findings that his prior convictions were numerous and increasing in seriousness, he was on parole when the crime was committed, and his past performance on probation and/or parole was unsatisfactory; these factors fall under the Almendarez-Torres or “recidivism exception” to the Apprendi rule that “the fact of a prior conviction” can be found by a judge, even though any other fact that increases the maximum statutory penalty for a crime must be found by a jury. (Apprendi, supra, 530 U.S. at p. 490; Blakely, supra, 542 U.S. at p. 301.) As interpreted by the California Supreme Court, the Almendarez-Torres exception extends beyond the mere fact of a prior conviction, and includes facts related to the more broadly framed issue of a defendant’s recidivism. (People v. McGee (2006) 38 Cal.4th 682, 700-709 (McGee); see People v. Thomas (2001) 91 Cal.App.4th 212, 221-223.) Because the facts that defendant was on parole at the time of the current offense, his prior performance on probation was unsatisfactory, and his convictions were numerous and increasing in seriousness arise out of the “fact of a prior conviction,” and are so closely related to the prior convictions themselves, they come within the Almendarez-Torres exception to a defendant’s constitutional right to a jury trial on factors in aggravation. (See McGee, supra, 38 Cal.4th 682, 700-709.) As with a prior conviction, these facts can be established by a review of the court records relating to the prior offenses. (See People v. Thomas, supra, 91 Cal.App.4th 223.) Thus, the upper term was supported by factors that did not need to be found by a jury. (Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490.)
Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres).
We granted a request by respondent to file supplemental briefing pursuant to People v. Black (July 19, 2007, S126182) ___ Cal.4th ___ [2007 Cal. Lexis 7604] (Black II). Black II merely affirms this opinion. Defendant also filed supplemental briefing, asserting that the question of whether certain aggravating factors fall under the Almendarez-Torres exception is pending before the state Supreme Court in People v. Towne, S125677; defendant requested this court to await that decision. We decline to do so, noting that we are bound by Black II, which recognized that the Almendarez-Torres exception should be read broadly. (Black II, supra, ___ Cal.4th ___ [2007 Cal. Lexis 7604] [pp. 21-22]; Auto Equity Sales, Inc. v. Superior Court, (1962) 57 Cal.2d 450, 455.) Defendant further requested this court to recognize his constitutional challenge to Black II’s holding that there is no Sixth Amendment violation as long as the sentencing court relied on at least one valid aggravating factor. (Black II, supra, ___ Cal.4th ___ [2007 Cal. Lexis 7604] [p. 11].) Defendant’s challenge is irrelevant to the instant case, since the trial court relied on more than a single aggravating factor in imposing the upper term.
Defendant argues that the court should have considered as mitigating factors his disability (he was legally blind) and the fact that the victim provoked him by telling him that she had been unfaithful and that she had dope in the house. The record shows that defense counsel argued these factors to the court at the sentencing hearing. Thus, the court did consider them, and reasonably did not consider them to be mitigating circumstances.
In a supplemental brief filed pursuant to Cunningham, defendant contends that his probation report was not admitted into evidence at trial, and thus, the factors that he was on parole at the time of the current offense, his prior performance on probation was unsatisfactory, and his convictions were numerous and increasing in seriousness were not supported by any evidence. However, “[i]n determining the appropriate term, the court may consider the record in the case, the probation officer’s report, other reports including reports received pursuant to Section 1203.03 and statements in aggravation or mitigation submitted by the prosecution, the defendant, or the victim, or the family of the victim if the victim is deceased, and any further evidence introduced at the sentencing hearing.” (§ 1170, subd. (b).) The court here properly reviewed the probation report, and considered other evidence presented at the sentencing hearing, before sentencing defendant.
Defendant further claims that the trial court used the wrong standard of proof when it found the recidivism factors true by a preponderance of the evidence. He makes the unsupported assertion that he had a constitutional right under the Sixth and Fourteenth Amendments to have these factors proved beyond a reasonable doubt. However, under Blakely and Apprendi, only facts “‘other than the fact of a prior conviction’” must be found by a jury and proved beyond a reasonable doubt. (Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at p. 490.) Matters relating to recidivism do not require findings by a jury beyond a reasonable doubt. (See McGee, supra, 38 Cal.4th at pp. 700-706, and cases cited.) The trial court was only required to find the recidivism factors true by a preponderance of the evidence. (Cal. Rules of Court, rule 4.420, subd. (b).)
At the time defendant was sentenced, California Rules of Court, rule 4.420, subdivision (b) stated that circumstances in aggravation had to be established by a preponderance of the evidence. That rule was recently amended, as of May 23, 2007. We note that subdivision (b) no longer mentions the standard of proof required for circumstances in aggravation.
Defendant also argues that he was denied his constitutional right to have a jury decide whether the aggravating factors outweighed the mitigating factors. Defendant has waived this point for failure to cite to any authority in support of this proposition and for failure to raise it below. (People v. Stanley (1995) 10 Cal.4th 764, 793; People v. Gonzales (1986) 188 Cal.App.3d 586, 590.)
Defendant further contends that the matter cannot be remanded for resentencing; rather, this court must reduce his sentence to the middle term because there is no provision under California law for a jury trial on factors in aggravation. He additionally claims that the Double Jeopardy Clause would be violated, if the matter were remanded. To the extent that defendant raises new arguments in his reply brief, such as the Double Jeopardy claim, such arguments are deemed waived, since no good reason is shown for his failure to present them earlier. (Baniqued, supra, 85 Cal.App.4th at p. 29.) In any event, we conclude that, for the reasons explained above, the trial court did not violate Blakely/Cunningham in sentencing defendant to the upper term, since the court based its selection of this upper term on recidivist factors. Thus, we see no need to address defendant’s arguments concerning remanding the matter.
B. Any Errors Were Harmless
Defendant asserts that the trial court improperly relied on the fact that he served a prior prison term as an aggravating factor. We agree. A sentencing court may not rely on the same fact to impose an aggravated term and an enhancement. (§ 1170, subd. (b).) Since the court relied on defendant’s prior prison terms to enhance his sentence, pursuant to section 667.5, subdivision (b), it could not rely on the same fact to impose the upper term. (See People v. Bowen (1992) 11 Cal.App.4th 102, 105.) Even though the trial court violated the prohibition on dual use of facts, the error was harmless. (See post.)
Furthermore, to the extent the trial court relied on nonrecidivist aggravating factors, we find that error harmless, as well. It would be speculative for U.S. to say that a jury would have found true, beyond a reasonable doubt, the factors that defendant engaged in violent conduct that indicated a serious danger to society, and/or that the crime involved great violence and cruelty, and damage of great monetary value. However, in view of the court’s proper reliance on the recidivist factors, any error in relying on the other factors was harmless. (People v. Watson (1956) 46 Cal.2d 818, 836; People v. Price (1991) 1 Cal.4th 324, 492, superseded by statute on other grounds as stated in People v. Hinks (1997) 58 Cal.App.4th 1157, 1161-1164.)
DISPOSITION
The judgment is affirmed.
We concur: RAMIREZ, P.J., GAUT, J.