Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD196697 Lisa Foster, Judge.
IRION, J.
An information charged Kenneth Antonio Sexton with carjacking (Pen. Code, § 215, subd. (a)) with personal infliction of great bodily injury (GBI) (§ 12022.7, subd. (a)), inflicting corporal injury on a spouse (§ 273.5, subd. (a)) with personal infliction of GBI, and unlawfully taking and driving a vehicle (Veh. Code, § 10851, subd. (a)). It alleged two convictions as "strike prior(s)" (capitalization omitted) (§§ 667, subds. (b)-(i), 1170.12, 668) and the same two convictions as a serious felony prior conviction (§ 667, subd. (a)).
All further statutory references are to the Penal Code unless otherwise specified.
A jury found Sexton guilty of inflicting corporal injury on a spouse with personal infliction of GBI and unlawfully taking and driving a vehicle. Sexton waived his right to a trial on the prior conviction allegations and admitted the allegations, without waiving his right to argue whether the allegations constituted two separate strike convictions (§§ 667 subds. (b)-(i), 1170.12, 668) and how they should be treated at sentencing. At sentencing, the court concluded the two priors were separate convictions, dismissed one strike, and sentenced Sexton to 15 years four months in prison: six years (twice the middle term) for inflicting corporal injury on a spouse, three years for the GBI enhancement, one year four months (one-third the middle term, doubled) for unlawfully taking and driving a vehicle, and five years for the serious felony prior. Sexton appeals. We affirm.
BACKGROUND
The surveillance cameras at a convenience store showed Sexton and two other people push Sexton's car into the store's parking lot at 8:34 a.m. on January 26, 2006. Around 9:00 a.m., Sexton's ex-wife, Lakeshia Sexton, pulled into the parking lot. Sexton got into her car. Lakeshia tried to talk to Sexton, but he was talking on his cell phone and did not respond, except to tell her to drive. When Lakeshia turned and looked at Sexton, he hit her in the mouth, causing it to bleed. Sexton told Lakeshia to drive to his home. As she drove, he hit her more than a dozen times. When they were on the freeway, Lakeshia pulled over toward the shoulder and opened the car door, attempting to escape. Sexton tried to push Lakeshia out of the car into traffic, saying, "I'm going to kill you." She jumped out of the car and tried to run, but Sexton caught her and continued hitting her. After a passerby stopped, Sexton drove away in Lakeshia's car. She suffered bleeding, soreness, bruising on her right breast, swelling to her mouth and face, and a three-inch laceration over her eye that required stitches.
Although Sexton told the police he had not seen his ex-wife in two to three weeks or a month, the convenience store's surveillance video appeared to show him getting into Lakeshia's car shortly after 9:00 a.m. Sexton also told the police that within 30 minutes of his car's breakdown, he got a ride from the convenience store from his friend Shannon White. The surveillance video did not show White's car enter the parking lot until after 2:00 p.m.
White testified for the defense. Four additional witnesses attempted to impeach Lakeshia Sexton.
DISCUSSION
Appointed appellate counsel has filed a brief summarizing the facts and proceedings below. Counsel presents no argument for reversal, but asks this court to review the record for error as mandated by People v. Wende (1979) 25 Cal.3d 436. Pursuant to Anders v. California (1967) 386 U.S. 738, counsel lists, as possible but not arguable issues: (1) whether the reasonable doubt instruction (Judicial Council of Cal. Crim Instns. (2006-2007) CALCRIM No. 220) violates due process and, if so, whether the instruction prejudiced Sexton in light of the jurors' questions about reasonable doubt; (2) whether section 273.5 violates equal protection by allowing a three-year enhancement for GBI while section 243, subdivision (d) does not; and (3) whether the court's modification of CALCRIM No. 840 removed an element of section 273.5 from the jurors' purview.
We granted Sexton permission to file a brief on his own behalf. He has responded, contending: (I) the jury instruction regarding the police reports, reasonable doubt, and CALCRIM No. 359 (corpus delicti) were erroneous; (II) he was prejudiced by evidence concerning blood; (III) there were numerous instances of prosecutorial misconduct; and (IV) the evidence was insufficient to convict him.
I. The Jury Instructions Were Proper
A. Police Reports
The court instructed the jury that although it had heard testimony pertaining to police reports, copies of the reports (except for a California Highway Patrol report) were not admissible evidence, and the jury was to evaluate testimony concerning the reports in the same manner as it evaluated other testimony. Sexton contends the police reports showed that Lakeshia fabricated the charges and he was not the person seen getting out of the car and approaching her on the highway; withholding copies of the reports from the jury prejudiced him; and the instruction violated his due process rights. There was no objection to the instruction and the appellate record does not show that the police reports would have been admissible under an exception to the hearsay rule. There was no denial of due process.
B. Reasonable Doubt
The court defined reasonable doubt according to CALCRIM No. 220. When the jury asked for a further explanation, the court referred the jury to the instruction. Sexton contends the instruction allowed each juror to define reasonable doubt differently. CALCRIM No. 220 does not violate Sexton's due process right to be convicted only upon proof beyond a reasonable doubt. (People v. Westbrooks (2007) 151 Cal.App.4th 1500.)
The jury's note stated in part: "I feel [the] prosecution didn't prove there was no self inflicted injury. Is that reasonable doubt?" Sexton argues this juror "clearly had a reasonable doubt but the instruction forced him to ignore it."
C. Corpus Delicti
Sexton contends CALCRIM No. 359 (corpus delicti) was prejudicial, confusing, and misleading; allowed a conviction without proof beyond a reasonable doubt; and permitted the jury to hold him accountable for someone else's criminal conduct. The instruction stated: "The defendant may not be convicted of any crime based on his out-of-court statement alone. Unless you conclude that other evidence shows someone committed the charged crime, you may not rely on any out-of-court statements by the defendant to convict him. [¶] The other evidence may be slight and need only be enough to support a reasonable inference that someone's criminal conduct caused an injury, loss, or harm. The other evidence does not have to prove beyond a reasonable doubt that the charged crime actually was committed. [¶] The identity of the person who committed the crime may be proved by the defendant's statement alone. [¶] You may not convict the defendant unless the People have proved his guilt beyond a reasonable doubt."
"[T]he corpus delicti rule . . . essentially precludes conviction based solely on a defendant's out-of-court statements . . . ." (People v. Ray (1996) 13 Cal.4th 313, 341.) It "requires the prosecution to prove that 'the charged crime actually happened' exclusive of the accused's extrajudicial statements. [Citation.] Only a 'slight or prima facie showing, permitting the reasonable inference that a crime was committed, is sufficient.' [Citations.] Such evidence need not point to defendant as the perpetrator [Citation.]" (Id. at p. 342.) The instruction given here was proper. By its terms, it does not allow a defendant to be convicted based on someone else's conduct. The instruction expressly requires proof beyond a reasonable doubt of the defendant's guilt.
II. There Was No Error Concerning Blood Evidence
Sexton contends he was prejudiced and his right to cross-examination was violated because the prosecution presented evidence concerning blood, but there was no expert testimony that the blood on Lakeshia's car and on her shirt was her blood—or that the stains were even blood.
Lakeshia testified she bled when Sexton hit her. A passerby who stopped on the freeway to offer assistance testified Lakeshia was bleeding profusely. A police detective testified there was blood on the car, but no sign the car had been in a collision. The jury could reasonably deduce from this testimony that there was blood and it was Lakeshia's. No expert testimony was required.
III. The Alleged Prosecutorial Misconduct is not Reviewable on Appeal
Sexton makes the following claims of prosecutorial misconduct.
(A) A police detective's testimony concerning Sexton's physical description varied from the description in the detective's report; the prosecutor did not correct the testimony and in closing argument vouched for the detective and misstated witnesses' descriptions.
(B) During closing argument, the prosecutor called Sexton "charming" and "the kind of guy who can lie to your face," indirectly commented on his failure to testify, and attempted to shift the burden of proof by referring to his lack of an alibi.
(C) The prosecutor characterized Sexton as a philanderer and a con man and Lakeshia as pitiful and vulnerable, characterizations that were improper opinion and unsupported by the evidence.
(D) The prosecutor vouched for Lakeshia's credibility by relating his personal experience as a crime victim.
(E) In describing Lakeshia as vulnerable and defensive, the prosecutor referred to his personal opinion and facts not in evidence; testified as an expert on domestic violence, mind reading, and bruises; and attempted to shift the burden of proof.
(F) The prosecutor allowed Lakeshia to blurt out that Sexton had stolen a car from her in the past—an inadmissible, irrelevant, and prejudicial statement.
"Generally, a claim of prosecutorial misconduct is not reviewable on appeal unless the defendant makes a timely objection and asks the trial court to admonish the jury to disregard the prosecutor's improper remarks. [Citation.] In the absence of an objection, 'the point is reviewable only if an admonition would not have cured the harm caused by the misconduct.' [Citation.]" (People v. Tafoya (2007) 42 Cal.4th 147, 176.)
Here, there was an objection to only one of the above alleged instances of prosecutorial misconduct. Defense counsel objected to the prosecutor's argument concerning the type of blow that must have caused one of Lakeshia's bruises. The trial court sustained the objection. As to Sexton's other claims of alleged misconduct defense counsel did not object or ask for an admonition. Since an admonition would have cured any harm from the prosecution's misconduct, we need not reach the merits of Sexton's claims.
IV. Substantial Evidence Supports the Conviction
In reviewing a contention the evidence is insufficient to support the conviction, we must evaluate the entire record in the light most favorable to the judgment, presuming in support of the judgment the existence of every fact the jury could reasonably deduce from the evidence. We may not second guess the jury's evaluations of credibility. (People v. Johnson (1980) 26 Cal.3d 557, 576.) Under this standard of review, the facts set forth above constitute evidence that is reasonable, credible, and of solid value, from which a rational trier of fact could find Sexton guilty beyond a reasonable doubt. (Ibid.)
A review of the record pursuant to People v. Wende, supra, 25 Cal.3d 436, including the possible issues listed pursuant to Anders v. California, supra, 386 U.S. 738, has disclosed no reasonably arguable appellate issues. Sexton has been competently represented by counsel on this appeal.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J., O'ROURKE, J.