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People v. Solis

California Court of Appeals, Second District, Seventh Division
Mar 24, 2008
No. B196477 (Cal. Ct. App. Mar. 24, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. ARTURO SOLIS, Defendant and Appellant. B196477 California Court of Appeal, Second District, Seventh Division March 24, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court of Los Angeles County. Super. Ct. No. BA309898 Charlaine F. Olmedo, Judge.

Cindy Brines, 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, Susan D. Martynec, Supervising Deputy Attorney General, Chung L. Mar and Ellen Birnbaum Kehr, Deputy Attorneys General, for Plaintiff and Respondent.

WOODS, J.

Arturo Solis appeals his conviction and sentence on one count of corporal injury to a cohabitant. On appeal he claims the court erred in allowing an officer to testify, over his objection, to his post-arrest demeanor. In addition, appellant claims he was denied a fair trial when the prosecutor elicited testimony from the victim that appellant had recently been released from custody and that appellant’s counsel was ineffective for failing to object to the testimony. Finally he claims that his upper-term sentence violated his Sixth and Fourteenth Amendment rights. We do not agree. As we shall explain, we find no error in the admission of the evidence concerning appellant’s post-arrest conduct. In addition, appellant has failed to demonstrate his counsel’s performance, in failing to object to a brief and vague reference to him being in custody, resulted in prejudice. Finally, as to his sentence, we find no reversible error under Cunningham v. California (2007) 549 U.S. __, 127 S.Ct. 856. Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

In the fall of 2006 appellant and his “significant other” a mentally slow 25-year-old Angela Arzate shared a bedroom in a residence in Los Angeles. They had recently rented the bedroom from Petra Coria. Ms. Coria, her husband, her sister Carmelita Castillo and Ms. Castillo’s daughter also lived in the residence.

On September 26, 2006, Arzate accompanied appellant to his construction worksite where he was building a porch. During that day appellant drank approximately 6 large beers and Arzate took sips from them. After he finished work at the end of the day, Arzate and appellant stopped at a market to get food, more beer and a bottle of liquor. When they arrived home they went into the bedroom and ate and each drank several glasses of the hard alcohol while they watched television. Ms. Arzate did not want to drink the alcohol but drank it because she was afraid of appellant. After drinking two glasses in about 15 minutes, Ms. Arzate felt dizzy and tired and drunk. She changed into her nightgown and lied down on the bed and fell asleep.

According to Arzate she was awakened by appellant kicking her in the head. She started to scream, but appellant held his hand over her mouth and told her not to scream. Arzate told appellant to calm down. He grabbed her by the hair and threw her to the floor. He then hit and kicked her a number of times and at some point she fainted. She heard someone knock on the bedroom door before she fainted. Arzate did not remember anything after she lost consciousness.

Ms. Coria and her sister Ms. Castillo were also home at the time. They were in the next room watching television when they heard Arzate crying. They also heard what sounded like a person being hit against the wall of Arzate’s bedroom. The crying and the other sounds continued for about 10 minutes. Ms. Coria heard appellant yelling something. Ms. Castillo knocked on the bedroom door and when appellant answered it, he told her to mind her own business. At some point, Ms. Arzate ran from the room; her face was bleeding and swollen. Appellant chased after her, caught her and dragged her back to the bedroom by her hair. Ms. Coria went to the neighbors, who called police.

At trial Arzate could not recall many of the details—like the knock on the door, running from the bedroom, or the number of times she was struck—because she thought that she lost consciousness after the first blow to her head.

Los Angeles Police Department Officers Arrizon and Ramirez arrived within 10 minutes. They could hear a woman screaming and went immediately to the bedroom appellant shared with Arzate. They found Arzate lying face-up on the floor between the bed and the closet, her face swollen and covered in blood. Appellant stood at the foot of the bed. Officer Arrizon stated appellant had blood on his shoes and shirt. Officer Arrizon told appellant to put his hands up and then ordered appellant to the ground. The officers observed that appellant had slurred speech and mannerisms leading them to conclude that he was intoxicated. While appellant initially complied with officer’s requests, according to Officer Arrizon, appellant became belligerent and when the handcuffs were placed on him he began screaming and claiming he had not done anything. Officer Arrizon took appellant outside and placed appellant in the police car, appellant hit his head on the patrol car window and then laid down in the backseat and continued to kick at the door window, ultimately damaging the door frame. After officers placed additional restraints on appellant he began spitting in the back of the patrol car, so officers covered appellant’s mouth.

Paramedics arrived to treat Arzate. She appeared to be in an altered state of consciousness and had multiple bruises, lacerations, bleeding and swelling around her eye. They transported her to the hospital.

The next day when Arzate regained consciousness she was interviewed by Detective Nava. According to the detective, Arzate stated appellant attacked her while she was sleeping. He hit her and kicked about 20 times all over her body. She told the detective appellant got on top of Arzate and put his hands over her mouth and told her not to scream as she was punching her in the face. Arzate told the detective appellant was insulting her and hitting her, saying that next time he would kill her.

At trial, Arzate could not remember anything that she told the detective during the hospital interview except that appellant had caused her injuries.

Appellant was arrested and charged with one count of infliction of corporal injury to a cohabitant in violation of Penal Code section 273.5, subdivision (a) and two counts of making a criminal threat. The information further alleged appellant used a deadly or dangerous weapon and inflicted great bodily injury within the meaning of Penal Code section 12022.7, subdivision (e).

The court granted the prosecutor’s motion to dismiss one of the count of criminal threats and the jury acquitted appellant of the other count.

During the defense case, appellant testified in his own behalf. He told the jury that after he and Arzate ate food, drank and watched television that evening, Arzate fell asleep on the bed. He testified that he fell asleep while watching the television and was awakened by a noise. He looked up and saw Arzate lying on the floor next to the television, an alarm clock and a broken crucifix. He assumed that she had tripped over an extension cord that went from the TV to the wall. He saw Arzate was bleeding from the lip and nose. He said that he helped her back onto the bed and began to clean up her injuries. She cried and he told her to quiet down since he had just gotten out of jail and did not want to get into trouble. He stated that a woman knocked on the door and he told her not to bother them. Appellant stated that because Arzate would not quiet down he started to leave, but Arzate tried to grab him and as a result fell on the floor and hit her head. He denied that he ran out of the room that night and dragged Arzate back in. He also told the jury that other bruises that Arzate had on her knees occurred because she had fallen in the street a few days before.

When asked whether he had kicked or hit Arzate, appellant repeatedly denied it, stating, “I would never do that. I have two young girls. I would never do that.” “I have never done that. [Arzate] is my significant other. I would have ran away or I would have tried to escape. . . . I wouldn’t do that. I have two girls, and I would never want anyone to raise a hand to them.” He also denied being drunk that evening.

In response to questions concerning his behavior with the arresting officers, appellant stated he was not upset when they arrived because his “conscience was clear.” He stated that the officers did not ask him anything they just arrested him. He stated the handcuffs were too tight and he was thrown down and bruised and became angry. He admitted that he spit, but stated that he did so because he had dirt in his mouth from being thrown down by the police.

The jury found appellant guilty of the corporal injury to a cohabitant count and found true the allegation appellant inflicted great bodily injury. The court sentenced appellant to the upper term of four years in state prison for the corporal injury conviction plus the mid-term of four years for the enhancement. This appeal followed.

DISCUSSION

I. Admission of Evidence of Appellant’s Post-Arrest Conduct

Appellant asserts the court erred in allowing Officer Arrizon to testify about how appellant acted after he was arrested because that evidence “showed only that appellant was a bad character” and was not relevant to any of the charged crimes. Appellant further claims that the court “found the subsequent bad acts evidence admissible pursuant to Evidence Code section 1101(b) and not barred under Evidence Code section 352.” On appeal, appellant asserts that the evidence of his post-arrest behavior was bad character evidence under Evidence Code section 1101, subdivision (a), more prejudicial than probative under Evidence Code section 352 and that its admission violated his state and federal constitutional due process rights to a fair trial.

A. Appellant’s Motion in the Trial Court.

At the beginning of the trial the court and the parties briefly discussed appellant’s intent to seek an Evidence Code section 402 hearing concerning appellant’s post-arrest conduct. Appellant’s counsel stated: “[S]ince he is not charged with vandalism [of the police car], I wanted to keep that out and have a discussion and concentrate solely on the 273.5 and the G.B.I. allegations and the terrorist threat.” The court responded: “Okay. And I assume you’re worried about it coming in should he take the stand or in the 1101(b), in their case in chief?” The court then deferred ruling on it until the prosecution sought to present the evidence.

Thereafter when the parties and the court revisited the issue, the entirety of appellant’s objection, the arguments of counsel and ruling of the court transpired as follows:

The Court: I just wanted to handle the 402 concerning the alleged kicking of the window of the police car by [appellant]. Why don’t we go ahead since you’re moving to exclude it.

Defense Counsel: Yes, your honor. There are some allegations, some indications that [appellant] kicked out the window of the police car when he was taken into custody. Since [appellant] is not charged with a 594, Vandalism, and nothing was asked about it at the prelim because it wasn't charged and it was not brought up at the prelim, I would ask that it not be allowed in. And I will submit, your honor. I don't think it's part of the allegations, your honor, forgive me, that is before the court. Submitted.

The Prosecutor: Your honor, as the court knows, the evidence that comes in at a prelim and then at trial, because of the burden for both, is very different. The evidence regarding the defendant's demeanor is relevant because of the fact that he has -as counsel has probably alluded to during cross-examination, whether or not the defendant was in fact the one that had caused these injuries on the victim. The defendant was belligerent and gave the Officers some trouble when they went to put him into the police car. I think it's relevant because it goes to his mental state at the time of the incident. Criminal Threats is a specific intent crime, and the defendant's intent is relevant. And any actions that demonstrate this intent I believe is also relevant.

The Court: Did you wish to respond, [defense counsel]?

Defense Counsel: No, your honor. Submitted.

The Court: All right. The court will allow the testimony concerning the defendant's demeanor with regard to his interactions with police and going into the police car based upon both the nature of the charges that the People are proceeding [sic] on this case, the 273.5 and the 422. In addition, the court finds them to be prohibitive [sic] as to the defendant's demeanor in that the police responded, according to testimony, quickly. Within the time from when the police were called, the alleged 273.5 charge was continuing to take place. The police were called while the incident was ongoing, and they responded within ten minutes, according to the witness, from the time that they were called. So the court finds his demeanor, [appellant] demeanor would be relevant within that very short time frame. So the court finds it more prohibitive [sic] than prejudicial under 352.

Defense Counsel: Thank you, your honor.

Before we address the merits of appellant’s claim, we address the issue of whether he preserved his section 1101(b) and section 352 challenges for appeal. To preserve a claim of error on appeal the appellant must timely and specifically object in the trial court. Evidence Code section 353 provides, as relevant, “A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence unless: [¶] (a) There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion . . . .” (Italics added.) “In accordance with this statute, we have consistently held that the ‘defendant's failure to make a timely and specific objection’ on the ground asserted on appeal makes that ground not cognizable. (People v. Green (1980) 27 Cal.3d 1, 22 [objection on ground that questions were leading does not preserve appellate argument that the evidence was impermissible evidence of other crimes].)” (People v. Partida (2005) 37 Cal.4th 428, 433.) Indeed “a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.” (People v. Morris (1991) 53 Cal.3d 152, 187-188.)

A review of the transcript here reveals appellant’s counsel did not specifically state an objection on grounds of Evidence Code sections 1101 or 352. However, these grounds are implied in the court’s statements, when the court asked appellant’s counsel whether she was concerned about the evidence in view of Evidence Code section 1101, subdivision (b) and then when the court later ruled that admission evidence did not pose a problem under section 352. (See People v. Barnett (1998) 17 Cal.4th 1044, 1130 [an objection on the basis of relevance alone does not preserve a claim or imply an objection under Evidence Code section 352].) Here the parties and the court understood that, in addition to the relevance challenge appellant sought to exclude this evidence because of its potential for undue prejudice and as bad character evidence under Evidence Code 1101, subdivision (b). While it would have been better if trial counsel had clearly and specifically articulated all of the grounds for exclusion on the record, we are not prepared to conclude that appellant’s failure to do so in this case results in a waiver of his complaint on appeal.

B. The Merits.

Under Evidence Code section 1101, subdivision (a) evidence of a person's character, including specific instances of his or her conduct is inadmissible when offered to prove his or her conduct on a specified occasion. This notwithstanding, admission of evidence a person committed a crime, civil wrong, or other act is admissible when it is relevant to prove some fact such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident (Evid. Code, § 1101, subd. (b)) or to overcome any material matter sought to be proved by the defense. (People v. Alcala, supra, 36 Cal.3d at p. 631.)

The trial court has discretion in admitting evidence. We will not disturb the exercise of the court’s discretion absent a showing the trial court abused its discretion, i.e., acted in an arbitrary, capricious or patently absurd manner resulting in a miscarriage of justice. (People v. Gray (2005) 37 Cal.4th 168, 202; People v. Kipp (1998) 18 Cal.4th 349, 371 [trial court’s decision to admit evidence under Evidence Code section 1101 reviewed for abuse of discretion]; People v. Cardenas (1982) 31 Cal.3d 897, 904 [abuse of discretion standard of review applies to rulings under Evidence Code section 352].)

In our view the court did not abuse its discretion in admitting appellant’s post- arrest conduct into evidence. Appellant’s defense at trial was that Arzate was accidentally injured when she tripped over a cord and/or then when she tried to grab him. He insisted that he was trying to her help. Appellant denied all responsibility for her injuries and he denied being drunk. He repeatedly told the jury that he would never harm his significant other because he had two daughters. He clearly intended to imply that he was a non-violent person suggesting that he would rather run away or try to escape than raise a hand to her. He testified that he was not upset or angry when the police arrived because his conscience was clear.

Appellant’s demeanor--his intoxication and belligerence--when police arrived shortly after the attack, as well as his extreme and violent behavior when he was placed in the patrol car are relevant to his intent to commit the charged crimes and his defense. His behavior undermines his claim of accidental injury as well as his effort to portray himself as a non-violent person who was simply trying to help out. We are not convinced that his initial compliance with officers when he was ordered to put his hands up serves to negate the relevance of his subsequent behavior to the charged crimes. Indeed, his violent reaction to being arrested was extreme and well beyond the natural and normal response a person, who believed himself innocent, would have when placed in the back of a patrol car. In view of the foregoing, we conclude this evidence was relevant to prove a material issue of the case and would pass muster under Evidence Code section 1101, subdivision (b).

A person violates Penal Code section 273.5 where he or she “willfully inflicts upon his or her spouse, or . . . willfully inflicts upon any person with whom he or she is cohabiting . . . corporal injury resulting in a traumatic condition . . . .” (Pen. Code, § 273.5.)

This conclusion, however, does not end the inquiry. Even though we find the trial court did not err in concluding this evidence was relevant, this evidence must nonetheless be examined for its prejudicial effect under Evidence Code section 352. “When a section 352 objection is raised, the trial court ‘must weigh the admission of [the] evidence carefully in terms of whether the probative value of the evidence is greater than the potentially prejudicial effect [of] its admission . . . .’ . . . ‘[T]he fundamental rule [is] that relevant evidence whose probative value is outweighed by its prejudicial effect should not be admitted.’” (People v. Cardenas, supra, 31 Cal.3d at p. 904; citations omitted.)

Evidence Code section 352 provides: “the court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create a substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.” (Evid. Code, § 352.) This court will not disturb a trial court’s exercise of discretion under section 352 absent a showing the court acted in an arbitrary, capricious or patently absurd manner that resulted in a miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)

Preliminarily we note that Evidence Code section 352 applies to prevent undue prejudice, that is “‘evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues’ not the prejudice ‘that naturally flows from relevant, highly probative evidence.’” (People v. Padilla (1995) 11 Cal.4th 891, 925, overruled on other grounds by People v. Hill (1998) 17 Cal.4th 800.) Moreover, the undue prejudice must substantially outweigh its relevance. (People v. Ewoldt (1984) 7 Cal.4th 380, 404.)

The court did not abuse its discretion in concluding the probative value of this evidence outweighed any prejudice. On one hand this evidence had probative value. As discussed above, this evidence was compelling and directly relevant to the issue of intent and to appellant’s defense. On the other hand evidence that appellant was drunk, and belligerent; that he kicked and damaged a doorframe of a police cruiser and that he spit in the back of a patrol car is prejudicial. However, we are not convinced that the prejudice was unfair or that it outweighed its probative value. Consequently, we cannot say admission of this evidence constituted a miscarriage of justice.

Finally as to the claim that admission of his post-arrest conduct violated his constitutional due process and fair trial rights, as we noted elsewhere appellant did not make this argument below. It is well settled that a due process contention is not cognizable on appeal unless the defendant objected on due process grounds at trial. (People v. Partida, supra, 37 Cal.4th at p. 437 (Partida).) The constitutional issue is preserved only if the actual trial objection required a consideration by the trial court of due process. (Id. at pp. 436-438; People v. Cole (2004) 33 Cal.4th 1158, 1195, fn. 6.) Thus, a claim that the defendant was denied a fair trial due to the erroneous admission of evidence that was more prejudicial than probative is preserved by an objection under section 352. (Partida, supra, at pp. 436-437.) In other words, the failure to invoke the constitution will not prevent an argument on appeal that “(1) the trial court erred in overruling the trial objection, and (2) the error was so serious as to violate due process.” (Id. at p. 436, fn. omitted.)

As we discussed elsewhere herein, we find no error under Evidence Code section 352. Thus, there was no erroneous admission of evidence which might present a due process issue. (See Partida, supra, 37 Cal.4th at pp. 436-438; People v. Cole, supra, 33 Cal.4th at p. 1195, fn. 6.) In any event, we would conclude the admission of the post-arrest evidence was not so prejudicial as to render appellant’s trial fundamentally unfair.

II. References to Appellant’s Time in Custody

During the prosecutor’s direct examination of Arzate the following exchange occurred:

Prosecutor: “How long had you been living with [appellant at the time of the incident]?

Arzate: “It depends.

Prosecutor: “On what Ma’am?

Arzate: “Because [appellant] was in the can, and he had just come out.”

Appellant did not object to Arzate’s reference to the fact that he had just “come out” and had been “in the can.” Thereafter during appellant’s direct examination when his counsel asked him what happened in the bedroom with Arzate appellant volunteered: “[Arzate] was crying and crying, and I told her to quiet down because I had just come out of jail.”

Appellant claims the prosecutor engaged in misconduct when he elicited testimony from Arzate that appellant had recently been released from custody and his trial counsel was ineffective for failing to object to the misconduct. In addition, appellant contends his counsel was ineffective when he failed to caution appellant not to mention his time in jail during his testimony. As we shall explain, these claims are without merit.

“A prosecutor’s rude and intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215; citations omitted.) Where the conduct does not render a criminal trial “fundamentally unfair,” it may nonetheless amount to misconduct under state law if it involves “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” (Ibid.) Moreover, a prosecutor has a duty to guard against statements by his witnesses containing inadmissible evidence. (People v. Warren (1988) 45 Cal.3d 471, 481-482.) In addition, if a prosecutor believes that a witness may give an inadmissible answer, the prosecutor must warn the witness to refrain from making the statement. (Ibid.)

Generally, however, on appeal a defendant cannot complain about prosecutorial misconduct at trial unless the defendant timely objected and requested the jury be admonished to disregard the impropriety. (People v. Hill (1998) 17 Cal.4th 800, 820.) Otherwise the misconduct is waived unless an admonition would not have cured the harm. (Ibid.) To determine whether an admonition would have cured the harm we must consider the conduct in context. If the defendant objected, or if we find the admonition would not have been effective, we look to see whether the improper conduct was prejudicial, i.e., whether it is reasonably probable a jury would have reached a more favorable result absent the objectionable conduct. (People v. Herring (1993) 20 Cal.App.4th 1066, 1074.)

Here appellant failed to object to Arzate’s reference. Thus, to overcome waiver appellant asserts his counsel was ineffective in failing to object. To establish a claim of ineffective assistance of counsel, the defendant must prove both counsel’s representation was objectively deficient, below a reasonable standard of care under prevailing professional norms, and prejudice flowing from the deficient performance, that is, but for counsel’s errors, the defendant would have received a more favorable result. (People v. Waidla (2000) 22 Cal.4th 690, 718.) Defendant has the burden of proving an ineffective assistance. (People v. Ledesma (1987) 43 Cal.3d 171, 218.)

Given the difficulties inherent in making this evaluation, this court indulges in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered a sound trial strategy.” (People v. Thomas (1992) 2 Cal.4th 489, 530-531.) “Strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” (Strickland v. Washington (1984) 466 U.S. 668, 690-691.)

Moreover, a reviewing court need not determine “whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.” (In re Fields (1990) 51 Cal.3d 1063, 1079.) Defendant must affirmatively demonstrate prejudice. It is not sufficient for the defendant to show the error had some “conceivable effect” on the outcome of the proceeding; defendant must prove that there is a “reasonable probability,” that absent the errors the result would have been different. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.)

In our view, the prosecutor did not engage in prejudicial prosecutorial misconduct, nor did defense counsel’s failure to object to Arzate’s testimony deprive appellant of effective counsel. Arzate’s reference to appellant being in the “can” was fleeting, and not responsive to the prosecutor’s question. This isolated reference was not so grave or inflammatory that a curative instruction would not have mitigated any potential prejudice to the defendant. Furthermore, there is no indication in the record that the prosecutor intentionally solicited the reference or had reason to anticipate Arzate would blurt it out. Appellant has not demonstrated the reference served to persuade the jury in a deceptive or reprehensible manner, and thus we do not believe the prosecutor committed misconduct. (See People v. Valdez (2004) 32 Cal.4th 73, 124-125 [although a prosecution witness referred to the defendant’s incarceration during the direct examination the court found no prosecutorial misconduct because the comment was brief and the record demonstrated the prosecutor did not expect the witness to make the reference].)

In any event, appellant has not demonstrated that his counsel’s failure to object resulted in prejudice or rendered his trial fundamentally unfair. Arzate’s comment standing alone (or considered with appellant’s subsequently volunteered reference to his jail time), when viewed in the context of the entire guilt phase of the trial and all of the evidence against him are insignificant. Appellant has not demonstrated that his counsel’s failure to object to Arzate’s testimony and counsel’s purported failure to caution appellant against referring to his jail time “so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” (Strickland v. Washington, supra, 466 U.S. at p. 686.)

It is possible counsel did not object because he did not want to bring more attention to the passing reference than was necessary. The record before this court is silent on this issue. “If the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation.’ (People v. Pope (1979) 23 Cal.3d 412, 426 [152 Cal.Rptr. 732, 590 P.2d 859, 2 A.L.R.4th 1].)” (People v. Mayfield (1997) 14 Cal.4th 668, 783-784.)

III. The Cunningham claim

The trial court sentenced appellant on his conviction for corporal injury to a cohabitant to the upper term of four years. At the sentencing hearing the court stated:

“The court is going to give the high term of four years for Count 1 as the base term because the court does find the victim is particularly vulnerable in that she was asleep at the time the crime occurred and that it continued. [¶] The court also finds as an aggravating factor there is an escalating pattern of criminality or seriousness with regard to the crimes that [appellant] has committed. So for those two reasons, the court is going to give the high term as to Count 1 of four years.”

On appeal, based on Cunningham v. California (2007) 127 S.Ct. 856, appellant contends the imposition of the upper term on count 1, violated his right to a jury trial. Specifically appellant asserts that the trial court erred in relying upon improper factors in selecting the upper term. Although appellant concedes the trial court may rely on the fact of a prior conviction, he argues that the recidivism exception must be narrowly construed and does not include the escalating pattern of criminality or seriousness of crimes. We do not agree.

In Apprendi v. New Jersey (2000) 530 U.S. 466, 490, the court concluded: “[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.” In Cunningham, the court concluded “the Federal Constitution’s jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant.” (Cunningham v. California, supra, 127 S.Ct. at p. 860.) Accordingly, the court reasoned California’s determinate sentencing law violated a defendant’s right to a jury trial because it permitted a judge, rather than the jury, to find facts by a preponderance of the evidence, exposing a defendant to an elevated upper term because the middle term was the relevant statutory maximum. (Id., at pp. 868-871.)

The prior conviction exception referred to in Cunningham derives from the Supreme Court’s opinions in Apprendi v. New Jersey, supra, 530 U.S. 466, 490, Blakely v. Washington (2004) 542 U.S. 296, 301 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.”].) (See People v. Black (2007) 41 Cal.4th 799, 818; hereinafter Black II.)

The California Supreme Court recently held that “as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendant’s right to jury trial.” (Original italics.) (Black II, supra, 41 Cal.4th at p. 812.) The court then concluded, “so long as a defendant is eligible for the upper term by virtue of facts that have been established consistent 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.” (Id. at p. 813.)

Thus, the exception to the jury trial right for prior convictions, is not limited simply to the bare fact of a defendant’s prior conviction. (Black II, supra, 41 Cal.4th at pp. 818.-820) It extends as to other related issues, including the nature of that conviction that may be determined by examining the records of the prior convictions to determine whether the prior is the type making defendant subject to an enhanced sentence. (Ibid.) In Black II, the court reasoned the prior conviction exception should not be read too narrowly and ruled it included whether the prior convictions were numerous or of increasing seriousness. (Ibid.)

We conclude appellant did not preserve a claim that the court erred in sentencing appellant to the upper term based on an escalating pattern of criminality. Accordingly, in view of Black II, the trial court’s additional reference to the factor of victim vulnerability does not require reversal. Thus, appellant’s sentence does not violate his Sixth and Fourteenth Amendment Rights.

There appears to be an issue as to whether sufficient evidence supported the trial court’s finding on this factor. At oral argument appellant’s counsel was asked whether she had preserved the challenge to the sufficiency of the evidence supporting this factor. Appellant’s counsel responded that she believed she had preserved the issue and referred to pages 32-33 of the opening brief which provides: “[w]hether appellant’s offenses show an escalating pattern of seriousness is a factor that is subject to fact-finding, . . .” Several pages later in addressing whether the denial of a jury trial on this factor is harmless, appellant also argued: “[T]he court relied on the appellant’s escalating pattern of criminality to impose the upper term. The jury was not presented with any evidence as to the nature of the priors to be able to determine if they were escalating in seriousness. Thus, it cannot be concluded that the jury would have found that factor true beyond a reasonable doubt.” Appellant’s brief clearly preserved the claim that the jury is the appropriate fact-finder on this factor and preserved the related argument there was no evidence presented during the trial from which the jury could have found this factor. What is less clear is whether these arguments also preserve a challenge to the sufficiency of the evidence supporting the trial court’s finding on this issue. We conclude they do not.

Appellant acknowledges the language contained in Black II as well as the fact that this court is bound by the decision under the principles of Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455. Nonetheless he asserts Black II was wrongly decided and predicts the recidivism exception will ultimately be narrowed by the United States Supreme Court.

DISPOSITION

The judgment is affirmed.

We concur: PERLUSS, P.J. ZELON, J.


Summaries of

People v. Solis

California Court of Appeals, Second District, Seventh Division
Mar 24, 2008
No. B196477 (Cal. Ct. App. Mar. 24, 2008)
Case details for

People v. Solis

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. ARTURO SOLIS, Defendant and…

Court:California Court of Appeals, Second District, Seventh Division

Date published: Mar 24, 2008

Citations

No. B196477 (Cal. Ct. App. Mar. 24, 2008)