Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. PA061357, Barbara M. Scheper, Judge.
Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven E. Mercer and Alene M. Games, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, J.
RELEVANT PROCEDURAL HISTORY
On April 8, 2009, an amended information was filed charging appellant Tyrone Vincent Smith with the following offenses against Pamela T.: mayhem (count 2; Pen. Code, § 203); two counts of assault with a deadly weapon (counts 3, 7; Pen. Code, § 245, subd. (a)(1); attempted murder (count 4; Pen. Code, §§ 187, subd. (a), 664); criminal threats (count 5; Pen. Code, § 422); and corporal injury to a spouse or cohabitant (count 6; Pen. Code, § 273.5, subd. (a)). Accompanying the charges (with the exception of the assault charges) were allegations that appellant used deadly weapons, namely, a baton and crystal objects (§ 12022, subd. (b)(1)); in addition, accompanying the assault, attempted murder, and corporal injury charges were allegations that he inflicted great bodily injury (§ 12022.7, subd. (e)). Appellant pleaded not guilty and denied the special allegations.
All further statutory citations are to the Penal Code.
On June 3, 2009, a jury found appellant guilty of mayhem (count 2), corporal injury to a spouse or cohabitant (count 6), and one count of assault with a deadly weapon (count 7); in addition, the jury found the special allegations asserted in connection with these offenses to be true. In acquitting appellant of the remaining offenses, the jury found him guilty of attempted voluntary manslaughter, as a lesser included offense of attempted murder (count 4), and guilty of assault, as a lesser included offense of the other count of assault with a deadly weapon (count 3). The trial court sentenced appellant to a term of imprisonment totaling 10 years.
FACTS
A. Prosecution Evidence
The key prosecution witness was Pamela T., who testified as follows: Before January 2008, appellant and Pamela lived together for two years. In or about January 2008, they broke up. Appellant moved out of the house they shared in Valencia, but left some of his belongings, including a handgun in the upstairs master bedroom. According to Pamela, their relationship remained cordial. Appellant retained a key to the house and was free to come and go; although Pamela paid the house’s mortgage, the house was held in appellant’s name.
Pamela further testified that for a six-week period prior to April 12, 2008, she received phone calls that triggered the privacy manager on her caller i.d. device. She first accepted one of the calls in the early afternoon of April 12, 2008. The caller initially stated that her name was “Michelle, ” described herself as appellant’s sister, and asked to speak to appellant, but later identified herself as appellant’s girlfriend, “Angie.” Pamela and Angie talked for approximately 30 minutes, during which Angie described her relationship with appellant, including appellant’s description of his employment and income. Pamela told Angie that she had broken up with appellant, and that some of appellant’s statements regarding his employment and income were untrue. While Pamela and Angie talked, Pamela received a call from appellant on another phone, and asked him why he had lied to Angie. When appellant became angry, she ended the call. Shortly afterward, Pamela and appellant resumed their phone conversation, during which appellant appeared to be calm.
Pamela further testified that a few minutes after she talked to appellant, the alarm in the house sounded, she discovered appellant in the house. He said, “... I came here to kill you. This is the day you are going to fucking die.” As she fled, he hit her repeatedly with a metal baton, and then pushed her down a stairway. He wrested her from the foot of the stairs to the dining room, where he struck her ear with a glass candleholder. As she retreated from room to room, he threatened her, pulled off her nightshirt, and tried to hit her with objects he seized. He drew her to the living room, where he repeatedly struck her face with a crystal ashtray. He then grabbed a crystal sculpture and said, “This is the end of the road.... It will just take one hit, and you will be out of here.” When she pleaded for her life, appellant abruptly halted, said “I am not going to kill you, I am going to kill me, ” and went upstairs in the house. Pamela escaped to a neighbor’s house, where she obtained help.
At approximately 2:00 p.m. on April 12, 2008, Lance Westlake saw Pamela approaching his home. She was bleeding, disoriented, and wearing only underwear. He made a 911 phone call for assistance.
Fire engines from the Los Angeles County Fire Department were the first emergency units to arrive at the scene. They were ordered to await the appearance of Los Angeles County deputy sheriffs. As several vehicles containing deputy sheriffs arrived at Pamela’s house, appellant left the house, walked to an SUV parked in front of it, and started to drive past the fire units. The deputy sheriffs blocked the street with their vehicles and drew their weapons. Appellant stopped the SUV, left it, and collapsed on the street. He displayed a gunshot wound in the area of his chest.
Pamela and appellant were transported to a hospital, where they were treated. A gunshot residue analysis detected a single lead particle in a sample taken from Pamela’s right hand. A criminologist opined that lead particles can be transferred in many ways, and that the mere presence of the appellant’s gun in Pamela’s house could explain the particle on her hand. At trial, Pamela denied that she saw or touched appellant’s gun during the altercation.
B. Defense Evidence
Angela Presley Hackett testified that in April 2008, she was appellant’s fiancée. Before April 12, 2008, appellant informed Hackett that he once had a relationship with Pamela, but Hackett did not contact Pamela. On April 12, 2008, Hackett decided to call a phone number she noticed on appellant’s cell phone. When Hackett identified herself as appellant’s sister Michelle, Pamela described herself as appellant’s wife. After Hackett explained that she was appellant’s fiancée, Pamela became angry and asserted that appellant was “[a] cheating m-f.” Hackett did not tell appellant that she had spoken to Pamela until she visited him in the hospital.
Appellant testified on his own behalf. According to appellant, on April 12, 2008, he had no conversations with Angela regarding Pamela before he decided to go the Valencia house. After he arrived, Pamela angrily accused him of having a relationship with another woman. When she attacked him with a crystal ashtray, he defended himself with a metal baton. The altercation moved upstairs, where Pamela grabbed a gun. As they fought over the gun, it went off, wounding appellant. After Pamela ran away, he noticed fire trucks parked down the street. In an effort to reach the fire trucks for assistance, he got into his vehicle and drove toward them.
Los Angeles County Sheriff’s Department Sergeant Derrick Alfred testified that according to his police report, when he interviewed Pamela, she said that she had several conversations with Angie, but mentioned no specific conversation on April 12, 2008. He also stated that when the deputy sheriffs searched Pamela’s house, they found appellant’s gun on the stairs to the master bedroom.
In rebuttal, the prosecution presented further testimony from Sergeant Alfred, who interviewed appellant in the hospital after the incident. According to Alfred, appellant knew Pamela and Hackett had engaged in a long phone conversation; in addition, appellant first said that his finger was on the gun’s trigger when it discharged, and later said that Pamela’s finger was on the trigger when it discharged. The prosecution also submitted testimony from Los Angeles County Deputy Sheriff Kathleen Roberts, who talked to appellant in late April 2008. Appellant told Roberts that on the date of the incident, he was upset, fired two shots from his gun, and placed the gun on the floor. When he tried to pick up the gun, he shot himself.
DISCUSSION
Appellant contends that the trial court erred in (1) instructing the jury, (2) imposing the upper term on his conviction for corporal injury to a spouse or cohabitant, and (3) calculating his custody credits. For the reasons explained below, we reject his contentions, with the exception of item (3).
A. Flight Instruction
Appellant contends that the jury was improperly instructed with a version of CALCRIM No. 372, which stated: “If the defendant fled or tried to flee immediately after the crime was committed, that conduct may show that he was aware of his guilt. If you conclude that the defendant fled or tried to flee, it is up to you to decide the meaning and importance of that conduct. However, evidence that the defendant fled or tried to flee cannot prove guilt by itself.” The crux of his contention is that there was insufficient evidence to support the giving of the instruction, as he did not leave the house immediately after the altercation, and complied with police instructions to stop his vehicle. He maintains that “his actions were consistent with the innocent purpose of leaving the house to seek medical attention, rather than to evade the police.”
“In general, a flight instruction ‘is proper where the evidence shows that the defendant departed the crime scene under circumstances suggesting that his movement was motivated by a consciousness of guilt.’ [Citation.] ‘“[F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested.”’ [Citations.] ‘Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so.’ [Citation.]” (People v. Bradford (1997) 14 Cal.4th 1005, 1055.)
Under these principles, a flight instruction may be proper even though the defendant did not leave the crime’s location in haste. In People v. Carter (2005) 36 Cal.4th 1114, 1127-1133, the defendant was convicted of three murders that occurred in Southern California. In challenging the flight instruction, the defendant contended there was no evidence he left California immediately after the crimes, that he knew that he had been charged with the crimes when he was arrested in Arizona, or that he resisted the arresting officers.” (Id. at p. 1182.) Our Supreme Court rejected the contention, noting that the defendant “left California in the days immediately following the charged offenses. (Ibid.) The court explained: “[T]he instruction neither requires knowledge on a defendant’s part that criminal charges have been filed, nor a defined temporal period within which the flight must be commenced, nor resistance upon arrest.” (Ibid.)
Furthermore, a flight instruction may be proper even though the defendant, upon leaving the crime scene, moved in the direction of law enforcement officials. In People v. Cannady (1972) 8 Cal.3d 379, 383-384, a prison supervisor responsible for the prison’s athletic facilities heard an altercation in the gym and saw the defendants striking another inmate with a bat and a knife. The supervisor left to find help. (Id. at p. 384.) When he returned with two guards, he saw the defendants walking in the direction of a guard post. (Ibid.) At trial, the defendants maintained that they had struck the inmate in self-defense. (Id. at pp. 384-385.) On appeal, they contended that the jury improperly received a flight instruction, arguing that their route after leaving the gym was consistent with a desire to report the altercation to the guards. (Id. at p. 391.) Our Supreme Court held that there was sufficient evidence to warrant the flight instruction. (Ibid.)
We reach the same conclusion here. It is undisputed that appellant was aware of the fire units outside the house when he left it, as he testified that he drove toward the fire units to obtain assistance. The record otherwise discloses evidence supporting the giving of the instruction. Los Angeles County Deputy Sheriff David Chellis, who responded to the incident, testified that as he arrived at the house, he heard a firefighter shout, “Hey, that car is leaving the driveway, leaving the house....” According to Chellis, appellant drove past the fire units, and stopped his vehicle only when several deputy sheriffs drew their weapons and ordered him to halt. This evidence is sufficient to support the reasonable inference that appellant intended to avoid arrest, not to obtain medical assistance.
Appellant’s reliance on People v. Crandell (1988) 46 Cal.3d 833, disapproved on another ground in People v. Crayton (2002) 28 Cal.4th 346, 364-365, is misplaced. There, the defendant was charged with two murders. (Id. at pp. 847-848.) At trial, the evidence established that the defendant left the crime scene to obtain some money, that he intended to return to dispose of the bodies, and that he was arrested as he drove back to the house. (Id. at pp. 869-870.) The court concluded that a flight instruction had been improperly given, as there was no evidence upon which the jury could reasonably infer that the defendant left the house to avoid being observed or arrested. (Id. at p. 869.) As explained above, that is not the case here. In sum, the trial court did not err in instructing the jury with CALCRIM No. 372.
To the extent appellant suggests that CALCRIM No. 372 impermissibly lessens the prosecutor’s burden of proof, we observe that our Supreme Court rejected a similar challenge to the standard CALJIC flight instruction (No. 2.52) in People v. Mendoza (2000) 24 Cal.4th 130, 180 (Mendoza). As we see no material differences between CALCRIM No. 372 and the instruction examined in Mendoza, we conclude that CALCRIM No. 372 is not defective.
B. Upper Term
Appellant contends that the trial court erred in imposing the upper term on his conviction for corporal injury to a spouse or cohabitant. He argues that in selecting the upper term for the offense and the accompanying enhancement for the infliction of great bodily injury, the trial court made improper “dual use” of some facts, and relied on other facts not supported by the record. For the reasons explained below, we discern no reversible error.
1. Underlying Proceedings
The prosecution’s sentencing memorandum asked the trial court consider five aggravating factors in imposing sentence: (1) that appellant’s offenses “involved great violence, great bodily harm, threat of bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness” (Cal. Rules of Court, rule 4.421(a)(1)); (2) that appellant was armed or used a weapon (id., rule 4.421(a)(2)); (3) that Pamela was “particularly vulnerable” as a victim (id., rule 4.421(a)(3)); (4) that the crimes showed “planning, sophistication, or professionalism” (id., rule 4.421(a)(8).); and (5) that appellant “ha[d] engaged in violent conduct that indicates a serious danger to society” (id., rule 4.421(b)(1)). The memorandum further requested that the trial court impose a sentence totaling 12 years and 10 months.
At the sentencing hearing, defense counsel argued that the conviction for corporal injury to a spouse or cohabitant was the principal offense, and that punishment for appellant’s remaining convictions should be stayed under section 654. In addition, defense counsel urged the trial court to impose the middle term on all the convictions. The prosecutor responded that section 654 was inapplicable to some or all of the offenses.
Following argument, the trial court pronounced sentence. The trial court denied probation, concluded that the conviction for corporal injury to a spouse or cohabitant was the principal offense, and stayed punishment for the remaining offenses under section 654. Regarding the corporal injury conviction, the court imposed a total term of ten years, consisting of the upper term of four years for the offense, the upper term of five years for the great bodily injury allegation, and one year for the weapon use allegation.
Regarding the remaining offenses, the trial court selected the middle terms.
In selecting the upper term for the corporal injury conviction and its accompanying great bodily injury enhancement, the court stated that it “agree[d with] and adopt[ed]” the prosecutor’s view regarding the factors in aggravation. The court explained: “I think it was a very vicious attack. While there were differing stories as to exactly what prompted this attack, the fact remains that [appellant] brutally [attacked] Pamela, that it went on for a long time.... [¶] I was also impressed with the notion that [appellant] is a much larger person than Pamela and that he continued his attack, even though there were multiple opportunities... for some reflection, to stop at various points, yet he chose not to.”
2. Forfeiture
At the outset, respondent argues that appellant has forfeited his contentions by failing to raise them before the trial court. We disagree. Generally, the absence of a timely objection works a forfeiture when the trial court erred in its discretionary sentencing choices, including instances in which “it double-counted a particular sentencing factor.” (People v. Scott (1994) 9 Cal.4th 331, 353.) The rationale for this rule is “to encourage prompt detection and correction of error, and to reduce the number of unnecessary appellate claims.” (Id. at p. 351.)
The rule is thus applicable only when there is a meaningful opportunity to object before sentence is imposed, that is, only when “the trial court describes the sentence it intends to impose and the reasons for the sentence, and the court thereafter considers the objections of the parties before the actual sentencing.” (People v. Gonzalez (2003) 31 Cal.4th 745 (Gonzalez).) The requirement for a meaningful opportunity to object does not oblige the trial court to announce a tentative sentence; it is satisfied if after pronouncing sentence, the trial court displays a willingness to entertain objections, and then reaffirms the sentence. (Ibid.) As explained in Gonzalez: “The court need not expressly describe its proposed sentence as ‘tentative’ so long as it demonstrates a willingness to consider such objections. If the court, after listening to the parties’ objections, concludes that its proposed sentence is legally sound, it may simply state that it is imposing the sentence it has just described, without reiterating the particulars of that sentence.” (Id. at p. 752.)
Under these principles, we conclude that appellant had no meaningful opportunity to interpose an objection to the trial court’s ruling regarding the aggravating factors. The trial court heard argument from defense counsel and the prosecutor before imposing sentence, but never suggested how it would rule on these factors. Upon imposing sentence, the trial court immediately informed appellant of his right to an appeal and then requested a calculation of appellant’s custody credits. The record thus lacks any affirmative indication that the trial court was willing to consider objections to the sentence imposed.
3. Analysis
It is unnecessary for us to examine whether the trial court, in imposing sentence, erred in relying on all the aggravating factors proposed by the prosecutor. Generally, “[w]hen a trial court has given both proper and improper reasons for a sentence choice, a reviewing court will set aside the sentence only if it is reasonably probable that the trial court would have chosen a lesser sentence had it known that some of its reasons were improper. [Citation.]” (People v. Price (1991) 1 Cal.4th 324, 492.) Here, a single aggravating factor would be sufficient to justify the imposition of the upper term on both the offense and the great bodily injury enhancement. (People v. Osband (1996)13 Cal.4th 622, 728 [“Only a single aggravating factor is required to impose the upper term.”]; People v. Moberly (2009) 176 Cal.App.4th 1191, 1198 [dual use of a fact to aggravate both a base term and the sentence on an enhancement is not prohibited].) Accordingly, we will not reverse the sentence if the trial court would in all likelihood have imposed the same sentence on the basis of a single correct factor. (See People v. Osband, supra, 13 Cal.4th at p. 728.)
The trial court relied upon at least one factor that implicates no improper “dual use” and is established by the record, namely, that Pamela was “particularly vulnerable” as a victim (Cal. Rules of Court, rule 4.421(a)(3)). “Particularly, as used here, means in a special or unusual degree, to an extent greater than in other cases. Vulnerability means defenseless, unguarded, unprotected, accessible, assailable, one who is susceptible to the defendant’s criminal act.” (People v. Smith (1979) 94 Cal.App.3d 433, 436.) In assessing vulnerability, “[i]t is proper to focus upon the total milieu in which the commission of the crime occurred.... [Citation.] Both the personal characteristics of the victim and the setting of the crime may be considered. [Citation.]” (People v. Price (1984) 151 Cal.App.3d 803, 814.)
Here, the evidence at trial established that appellant is significantly taller and heavier than Pamela. Pamela testified that she is five feet three inches tall and that appellant is six feet three inches tall; in addition, she estimated that on April 12, 2008, her weight was 126 pounds and appellant’s weight was between 260 and 270 pounds. Appellant testified that Pamela’s height was between five feet four inches and five feet five inches, and that his own height was six feet two and one-half inches. He estimated that at the time of the incident, she weighed between 140 and 150 pounds, and he weighed “about 260 something.”
The evidence also established that appellant’s attack caught Pamela off guard. Pamela testified that when the house alarm sounded, she assumed that her daughter had set it off, as she was not expecting appellant to visit the house. Wearing only a nightshirt and underwear, she walked toward the house’s entrance area, where she found appellant, armed with a metal baton. As appellant attacked Pamela, he tore off her nightshirt.
In concluding that Pamela was particularly vulnerable, the trial court found that appellant was “a much larger person” than Pamela, that Pamela was unarmed, and that appellant stripped away her nightshirt. We see no error in these determinations. The evidence supports the inference that appellant is a foot taller than Pamela and that he weighed twice as much as Pamela when he attacked her; in addition, the evidence showed that Pamela was ill-prepared to resist appellant’s attack. Even allowing for the ordinary disparity in size between men and women, appellant enjoyed an exceptional advantage in height and weight during the attack, which took Pamela by surprise.
The trial court thus properly determined that Pamela was “particularly vulnerable” as a victim (Cal. Rules of Court, rule 4.421(a)(3)). Because nothing before us otherwise suggests it is reasonably likely the trial court would have imposed the middle term on appellant’s conviction if limited to this aggravating factor, we find no reversible error.
C. Custody Credits
Appellant contends the trial court miscalculated his presentence custody credits. The trial court awarded appellant credit for 431 days of actual custody and an additional 64 days for good conduct. In a supplemental brief, appellant argues that he is entitled to credit for 434 days in actual custody, plus conduct credit of 65 days. Respondent agrees. We conclude that appellant’s presentence custody credits must be corrected to reflect a total of 499 days, consisting of 434 days of actual custody, plus 65 days of conduct credit. The abstract of judgment shall be amended to reflect the appropriate credits.
DISPOSITION
The trial court is directed to prepare an amended abstract of judgment reflecting the changes in the appellant’s presentence custody credits described above (see section C., ante) and to forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
We concur: EPSTEIN, P. J. WILLHITE, J.
In surrebuttal, appellant stated that he was taking medication when he spoke to Sergeant Alfred, and he denied telling Deputy Sheriff Roberts that he shot himself.