Opinion
NOT TO BE PUBLISHED
Super. Ct. No. 06F1238
NICHOLSON, J.
A jury convicted defendant Brendan Shane Sirca of attempted voluntary manslaughter (Pen. Code, §§ 192, subd. (a), 664; subsequent undesignated statutory references are to this code) and battery with serious bodily injury (§ 243, subd. (d)), and sustained a great bodily injury enhancement (§ 12022.7). The trial court sentenced defendant to an eight-year six-month term in state prison.
On appeal, defendant asserts the following errors: (1) the trial court’s decision to submit aggravating factors to the jury was unauthorized; (2) defendant could not be charged with aggravating factors as the aggravating factors fail to state public offenses; (3) his upper term sentence is based on a prohibited dual use of facts; (4) applying the legislative and judicial responses to Cunningham v. California (2007) 549 U.S. 270 [166 L.Ed.2d 856] (Cunningham) would violate the federal ex post facto prohibitions; and (5) he was denied his constitutional right to due process and a fair trial when the trial court instructed the jury with Judicial Council of California Criminal Jury Instructions (2007-2008) CALCRIM No. 220. We affirm the judgment.
BACKGROUND
On February 17, 2006, Steven Rayner was going home from his job at a Redding hotel on the $1,300 mountain bicycle he had recently purchased, when he stopped at a bar and had some drinks. Rayner described himself as a moderate drinker at that time and testified he could feel the alcohol “a little bit” after leaving the bar but could still take care of himself.
Rayner left the bar to go home, walking his bicycle across the street and down an alley. According to Rayner, while walking down the alley he was attacked from behind and stabbed in the shoulder, the base of the neck, and spine. The attack continued as Rayner turned to face his assailant, who also stabbed him in the stomach, chest, and ear. Rayner saw a male attacker, but otherwise could not identify him. He remembers falling to the ground and holding onto the bicycle as his assailant tried to take the bicycle before fleeing.
Rayner admitted to suffering from seizures and that the medicine he takes for his condition causes ammonia to build up in his brain. He has a prior conviction for robbery and once entered a treatment program for a drinking problem. Rayner denied getting violent when intoxicated, claiming others get confrontational with him when he drinks.
Desiree Sirca, defendant’s wife, was with defendant from February 14 through February 17, 2006. They were homeless at the time, living in the motel rooms of friends. Defendant was drinking on February 17 and had been drinking almost continuously for a few days. He was angry and unpredictable when drunk, having previously assaulted Desiree when intoxicated and was arrested in 2005 on domestic violence charges.
Defendant recently acquired a knife in which the blade extended through the wielder’s fingers. He liked to show off his new knife to people, comparing it with a Bible he carried, claiming he had death in one hand and life in the other.
On the night of February 17, defendant and Desiree had been visiting her brother in another motel and left to return to their room. While leaving, defendant said he felt like beating somebody up. Defendant soon ran into a group of friends. He wanted to go with them, but they were not traveling in the same direction as Desiree and defendant.
As defendant and Desiree continued down an alley, a man walking a bicycle turned the corner and entered the alley, passing defendant. The man was clearly drunk, holding the bicycle at arms length to keep himself balanced.
Defendant told the man if he held that bicycle out like that again defendant would take it. The man said no you will not, and defendant replied he would.
Desiree could not see the man during the exchange, as defendant blocked her view. She saw defendant hitting the man, using the knife to stab him in the chest, stomach, and neck. She yelled for defendant to stop, running away after she saw the bleeding man fall down. Defendant then turned and ran, following Desiree. After Desiree accused defendant of being a killer, defendant cried, saying he was sorry, he did not know what had happened, and he was not a killer.
Desiree could not see who struck first because of the positioning of defendant’s body, but she believed defendant was the aggressor during the incident. However, she did see the man try to fight back.
Joshua Bernadas was working as a teller at a U.S. Bank branch in Redding on the day of the incident. He was leaving work at around 6:30 p.m. when he heard the sounds of an argument coming from the direction of a nearby alley. After a couple of minutes, the arguing stopped and he heard someone moaning and groaning, as if in pain. He went to the alley and found Rayner bleeding from a puncture wound in his stomach, moaning and in great pain. Bernadas called 911 and emergency personnel arrived within five minutes.
Rayner suffered eight penetrating wounds to his left abdomen, flank, chest, back of the neck, and right ear. The abdominal wound required surgery and was life threatening.
Defendant, testifying, asserted self-defense. He was drinking heavily at the time, and asked Rayner for a dollar after meeting him in an alley. After Rayner declined, defendant asked for the bicycle. Defendant then tried to walk the bicycle along with Rayner, which led to an argument.
Rayner eventually thrust the bicycle at defendant, attempting to hit him in the stomach. Defendant backed away but Rayner continued to approach. After feeling a stinging in his hand as if he had been stabbed, defendant reached for his knife. Defendant stabbed Rayner in the stomach after Rayner hit him in the chest. He claimed to have stabbed Rayner four times in self-defense before walking away.
Defendant also presented evidence of Rayner’s history of violence, including threatening to kill his sister and breaking the nose of a man who intervened, resisting arrest and spitting on a police officer, and an incident in which he kicked and damaged the rear window of a police car after being arrested for assaulting a woman while intoxicated.
DISCUSSION
I
Defendant was tried after the United States Supreme Court announced its decision in Cunningham, supra, 549 U.S. 270, finding criminal defendants had a right to jury trial and proof beyond a reasonable doubt on aggravating factors not related to defendant’s criminal history. Before trial, the People submitted a notice of intent to seek jury trial on four aggravating factors: (1) the crime involved violence, great bodily harm, threat of great bodily harm, or other acts indicating a high degree of cruelty, viciousness, or callousness; (2) the defendant was armed with or used a weapon at the time of the commission of the crime; (3) the victim was particularly vulnerable; and (4) the defendant engaged in violent conduct indicating he was a serious danger to society.
Over defendant’s objection, the court instructed the jury on the aggravating factors. It chose not to bifurcate the trial on the sentencing factors because no additional evidence was needed to try them.
The instruction read as follows: “If you find the defendant guilty of the crimes charged in Counts 1 through 4, or the lesser crimes thereto, you must then decide whether the People have proven the additional allegations that: One, the crime involved great violence, great bodily harm, threat of great bodily harm or other acts disclosing a high degree of cruelty, viciousness or callousness; two, the defendant was armed with or used a weapon at the time of the commission of the crime; three, the victim was particularly vulnerable; and four, the defendant has engaged in violent conduct which indicates a serious danger to society.” With respect to these sentencing factors, the jury was also instructed on the definition of a weapon, when a person is considered armed with a weapon, and that the People have the burden of proving the aggravating factors beyond a reasonable doubt.
The jury sustained all four aggravating factors for both counts. Relying on these factors, the court imposed an upper term sentence for attempted voluntary manslaughter.
A.
Defendant attacks this procedure, contending the aggravating factors did not state public offenses, because there is no authority permitting charges to be alleged that are not public offenses, and the courts are not authorized to create new crimes. We disagree.
In Barragan v. Superior Court (2007) 148 Cal.App.4th 1478(Barragan), the defendant’s jury trial already had commenced when Cunningham was decided, and the prosecuting attorney amended the information to allege several aggravating factors. (Barragan, supra, at p. 1481.) In writ proceedings, the defendant argued his demurrer to the amended pleading should have been sustained, in part, because “‘no statutory procedure exists in California under which a jury may decide the truth of [facts] in aggravation.’” (Id. at p. 1482.) In denying relief, we held: “California’s statutory scheme governing accusatory pleadings in criminal cases does not preclude the prosecutor from amending the information to allege aggravating facts for purposes of sentencing.” (Ibid.)
The relevant statutes “do not, on their face, preclude allegations other than public offenses.” (Barragan, supra, 148 Cal.App.4th at p. 1483.) In light of the Cunningham decision requiring all aggravating factors not related to defendant’s criminal history to be tried before a jury, “it now appears that to satisfy procedural due process, an aggravating fact must be charged in the accusatory pleading. [Citations.]” (Barragan, supra, at p. 1483.) Accordingly, “we construe[d] sections 950 and 952 to permit the People to amend the information to allege aggravating facts for purposes of sentencing. [Citations.]” (Barragan, supra, at p. 1483.)
Subsequent to our decision in Barragan, the Supreme Court in People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval), pointed out difficulties inherent in having a jury render findings on aggravating circumstances, but it did not rule such a procedure unauthorized by law. (Id. at p. 848-849.) In fact, the court noted allowing a jury trial on aggravating circumstances would “significantly complicate and distort the sentencing scheme,” but such a scheme “would comply with the constitutional requirements of Cunningham . . . .” (Id. at p. 848.) The court concluded the preferred course on remand from Cunningham error was for resentencing in accordance with the recently enacted legislative response to Cunningham, Stats. 2007, ch. 3, § 2 (Sen. Bill No. 40), thus “affording the trial court discretion to select among the three available terms, without requiring a finding of aggravating and mitigating circumstances . . . .” (Sandoval, supra, at p. 852.)
Defendant urges us to reject our decision in Barragan, relying on People v. Superior Court (Brooks) (2007) 159 Cal.App.4th 1 (Brooks). In Brooks, the Court of Appeal, Second District, disagreed with Barragan based on the holding in Sandoval “that resentencing under a discretionary scheme was preferable to permitting a jury trial on aggravating circumstances.” (Brooks, supra, at p. 5.)
We decline defendant’s invitation to disavow our holding in Barragan. As the court in Brooks recognized, “Sandoval expressly applied only to resentencing proceedings . . . .” (Brooks, supra, 159 Cal.App.4th at p. 8.) Brooks is similarly distinguished as it also involved the prospective application of a jury trial on aggravating factors rather than appellate review of a trial on the aggravating factors which has already taken place. (See id. at pp. 3-4.)
Sandoval’s criticism of using a jury trial on aggravating factors was made in the context of determining the best procedure for resentencing a defendant on remand after reversal for Cunningham error. (Sandoval, supra, 41 Cal.4th at p. 843.) The Supreme Court only concluded that on remand for Cunningham error the procedure outlined in Senate Bill No. 40 was the “preferable to the alternative of” a jury trial on the aggravating factors. (Sandoval, supra, 41 Cal.4th at p. 848.) Sandoval’s analysis does not question the authority for or constitutionality of the procedure we upheld in Barragan.
In this case, the trial court faced the question of applying the “academic holding [of Cunningham] to the real world of criminal cases pending trial.” (Barragan, supra, 148 Cal.App.4th at p. 1481.) Defendant’s trial started on April 24, 2007, less than a month after the Legislature’s response to Cunningham was enacted (Sen. Bill No. 40) and before the Sandoval decision. Lacking the benefit of Sandoval’s holding regarding the retroactive application of the procedures specified in Senate Bill No. 40 (see Sandoval, supra, 41 Cal.4th at p. 857), the trial court fashioned a procedure to comply with Cunningham which we upheld in Barragan. Barragan has not been overruled by our SupremeCourt and we shall continue to follow our decision until the Supreme Court rules to the contrary.
The result would not change even if the jury trial on the aggravating circumstances was improper. Although the trial on the aggravating factors was not bifurcated, it clearly did not influence the trial on guilt. Submitting the aggravating factors to the jury required no additional testimony, and the jury was instructed to address the aggravating circumstances only if it finds defendant guilty of one of the charged crimes or lesser offenses.
The trial court exercised its own discretion in imposing the upper term. Rather than blindly following the verdict on the aggravating circumstances, the court independently confirmed the existence of each of the aggravating factors submitted to the jury, and found one additional factor which had not been submitted to the jury. The court found no mitigating circumstances and determined any one of the aggravating circumstances justified imposition of the upper term.
B.
Defendant claims his sentence is invalid because three of the four aggravating factors relied on a fact included in the enhancement. His point is not well taken.
The jury sustained a section 12022.7 enhancement for great bodily injury in addition to sustaining the four aggravating factors. Generally, a court is prohibited from using a fact both to impose an aggravated term and enhance that sentence. (§ 1170, subd. (b).) However, defendant did not object to the alleged dual use of facts, thus forfeiting any claim on appeal. (People v. Scott (1994) 9 Cal.4th 331, 351-352; People v. Steele (2000) 83 Cal.App.4th 212, 226.)
Moreover, an objection would have been misplaced. (People v. Price (1991) 1 Cal.4th 324, 387.) An aggravating factor violates the prohibition against dual use only where it is necessarily based on a fact in the enhancement. (People v. Garcia (1995) 32 Cal.App.4th 1756, 1777.) If there is substantial evidence that another fact supports the aggravating factor then there is no violation of the dual use rule. Here one factor, the victim’s vulnerability, is clearly unrelated to the bodily injury enhancement. Two others, his danger to society and the degree of cruelty are likewise supported by facts separate from the enhancement such as defendant running from the critically injured victim as he lay bleeding in the alley.
The weapons use aggravating factor more closely implicates the enhancement since defendant used the knife to commit the great bodily injury. Given the absence of any mitigating factors and the fact that only a single aggravating factor is required to impose the upper term, there is no reasonable probability that defendant would have received a more favorable sentence absent the court’s dual use of facts, if any, on this aggravating factor. (People v. Osband (1996) 13 Cal.4th 622, 728-729.)
Since we find no sentencing error, we shall not address defendant’s contention that Sandoval was incorrectly decided, a claim which we would be required to reject. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
II
Defendant contends the reasonable doubt instruction embodied in CALCRIM No. 220, negates the presumption of innocence and impermissibly dilutes the prosecution’s burden of proof. We disagree.
The court instructed the jury with CALCRIM No. 220 as follows in pertinent part: “A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt.
“Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt.
“In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty.”
Defendant claims requiring the jury to “impartially compare and consider all the evidence” undermined the presumption of innocence and supplanted it with a lesser standard of impartiality. He argues the phrase “impartially compare” implies “a weighing of two opposed sets of evidence,” thus imparting to the jury “the incorrect idea of comparing two sets of evidence” such that the prosecution would meet its burden if defendant failed to produce enough evidence on his side of the scale to outweigh the evidence against him. (See Coffin v. United States (1895) 156 U.S. 432, 453 [39 L.Ed. 481, 491].) He also objects to inclusion of language requiring an “abiding conviction” without any additional reference to the gravity or weight of proof required.
A similar argument applied to the analogous CALJIC No. 2.90 was rejected by the United States Supreme Court in Victor v. Nebraska (1994) 511 U.S. 1, 16 [127 L.Ed.2d 583, 596-597] (Victor). Where CALCRIM No. 220 uses the verbs “compare and consider all the evidence,” CALJIC No. 2.90 uses the nouns requiring “the entire comparison and consideration of all the evidence” by the jury. When read in the context of the entire instruction, the Supreme Court concluded in Victor that the sanctity of the presumption of innocence and the prosecutor’s elevated burden of proving guilt beyond a reasonable doubt remained intact. (Id. at p. 16.)
This reasoning was followed by the Court of Appeal, Fifth Appellate District. (See People v. Hernandez Rios (2007) 151 Cal.App.4th 1154, 1157 (Hernandez Rios).) Noting the language of CALJIC No. 2.90, which refers to the “‘comparison and consideration of all the evidence,’” was approved by the United States Supreme Court in Victor, the Hernandez Rios court concluded, like CALJIC No. 2.90, the challenged language of CALCRIM No. 220 serves to inform the jury its decision must be based on the evidence, and rejected defendant’s claim that the instruction shifted the burden of proof. (Hernandez Rios, supra, at p. 1157.)
This court also recently followed Victor in rejecting the argument that, without “the concept of lack of evidence” included in the basic definition of reasonable doubt, CALCRIM No. 220 violates defendant’s right to due process. (People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267 (Guerrero).) Victor held “[a]n instruction cast in terms of an abiding conviction as to guilt . . . correctly states the government’s burden of proof” (Victor, supra, 511 U.S. at pp. 14-15), and we concluded CALCRIM No. 220 “neither lowers the prosecution’s standard of proof nor raises the amount of doubt the jury must have in order to acquit,” and thus properly “instructs the jury to acquit in the absence of evidence.” (Guerrero, supra, 155 Cal.App.4th at p. 1268.)
The term “abiding conviction” in the reasonable doubt instruction “convey[s] the requirement that the jurors’ belief in the truth of the charge must be both long lasting and deeply felt.” (People v. Light (1996) 44 Cal.App.4th 879, 885, italics added [CALJIC No. 2.90].)
The facts of this case do not compel us to diverge from our previous holding or of our country’s highest court in Victor. Nothing in CALCRIM No. 220 suggests the defense must present evidence or otherwise bears any burden of proof. We also consider the entire scope of instructions given during the trial in reviewing a challenge to a particular instruction. (People v. Castillo (1997) 16 Cal.4th 1009, 1016.) Here, the court instructed the jury with CALCRIM No. 220, that defendant is presumed innocent, the People have the burden of proving every element of the crime beyond a reasonable doubt, and reasonable doubt is “proof that leaves you with an abiding conviction that the charge is true.”
DISPOSITION
The judgment is affirmed.
We concur: DAVIS, Acting P. J., ROBIE, J.