Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Super.Ct.No. FWV032397
Marianne Harguindeguy Cox, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne G. McGinnis and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RAMIREZ, P.J.
A jury convicted defendant of corporal injury to a cohabitant/former cohabitant (Pen. Code, § 273.5, subd. (a)), during which he inflicted great bodily injury (§ 12022.7, subds. (a) & (e)), second degree murder (§ 187, subd. (a)), robbery (§ 211), during which he used a knife (§ 12022, subd. (b)(1)) and inflicted serious bodily injury, assault with a deadly weapon (§ 245, subd. (a)(1)), during which he inflicted serious bodily injury, unlawful sexual intercourse with a person under the age of 18 (§ 261.5, subd. (c)), sexual penetration with a foreign object of a person under the age of 18 (§ 289, subd. (h)) and two counts of oral copulation of a person under the age of 18 (§ 288a, subd. (b)(1)). In bifurcated proceedings, he admitted having suffered a prior conviction for which he served a prison term. (§ 667.5, subd. (b).) He was sentenced to prison for 12 years plus 15 years to life and appeals, claiming the trial court erred in denying his motion to suppress, instructing the jury and sentencing him. He also contends that the prosecutor committed misconduct. We reject all his contentions and affirm his convictions and the sentence the court has, thus far, imposed. We remand the matter to allow the trial court to impose a term based on the finding that defendant suffered a prior conviction for which he served a prison sentence. We further direct the trial court to correct errors in the existing abstract of judgment and minutes of the sentencing hearing and to complete a new abstract and minutes for the remanded sentencing hearing.
All further references are to the Penal Code unless otherwise indicated.
The total of the determinate sentences the court imposed is 12 years, even though the court said it was 13 years. The “extra year” may have been the one the trial court failed to impose on the section 667.5, subdivision (b) prison prior.
I.
Facts
In May or June, 2004, defendant engaged in four sex acts with a 17½ year old (hereinafter, “the minor victim”), who was living in a home where defendant also lived. In June, 2004, defendant choked the woman with whom he was living or had been living (hereinafter, “the murder victim”), causing her eyes to hemorrhage. The following September, he choked her again, this time, killing her. He put her body in a suitcase and moved it from the motel where they had been staying to a second motel. While at this motel, he encountered a woman at the pool area (hereinafter “the robbery/stabbing victim”) and he stabbed her several times in the neck and took her fanny pack. Other facts will be disclosed as part of the discussion of the issues addressed.
II.
Issues and Discussion
1. Denial of Motion to Suppress
A. Facts Adduced at the Hearing on the Motion
It should be noted that only the second detective testified that there were two approaches by police to the door to room number 129. Neither of the other two witnesses who testified at the hearing, i.e., a patrol officer, and another detective, testified that there were two. We have given defendant the benefit of the doubt as to the facts and reported them, primarily according to the testimony of the second detective.
An Ontario Police Department Detective testified that he arrived at the second motel around 6:00 p.m. on September 21, 2004 in response to a report of a stabbing/robbery. The weapon had not been recovered. An officer who was already on scene broadcast that the suspect may be holed up in one of the rooms on the bottom floor of the south side of the motel. A maintenance man at the motel told the detective that the suspect had stabbed a woman in the pool area, jumped over the gate and went west in front of the doors on the south side of the motel. The man said there were only three ways for the suspect to go to leave the property and the former stayed at his vantage point upstairs to see if the suspect went west or north, but the suspect did not. This left only one other way for the suspect to leave the property. There was also the possibility that he was hiding in one of the rooms. The detective thought there was a very strong chance the suspect was in one of the rooms on the south side of the motel. The telephones in all of the rooms were called. The occupants of any room that answered the call were removed from the room. If the phone was not answered, the room was eventually entered with a passkey and searched. Another detective testified that after officers unsuccessfully knocked on the door to room number 129, called the phone in the room and tried to open the door with a passkey, a police dog alerted at the room. The detective was told that the passkey had failed possibly because the door’s swing latch lock had been activated from inside the room. Officers watched the room for about 25 or 30 minutes while the other bottom floor rooms were searched. After that was completed, officers again knocked on the door to room number 129 and announced themselves, but no one responded and they were unsuccessful in using both a metal and an electronic passkey. Despite this, the first detective heard banging noises on the wall or door inside the room. The detective feared someone was inside, being held against their will. Using the electronic passkey, officers opened the door two inches and saw defendant, who matched the description of the suspect, inside the room. However, a swing latch had been engaged from inside the room and the door would not open further, so officers broke the door down at around 6:44 p.m. Inside the room, they found defendant, the suitcase containing the body of the murder victim, and items connecting him to the crimes committed against the robbery/stabbing victim.
The other detective testified it was 6:19 p.m.
When asked if he had time to get a search warrant during the approximate half-hour between leaving the door to the room the first time and returning to it the second time, the second detective testified, “ . . . I did not [¶] . . . [¶] [have time] [b]ecause there was an urgency to ensure that people were not being held captive, that they were not injured. . . . [T]here was no time to get a search warrant. We had to get into each of those rooms as safely and as quickly as we could to determine whether or not there was anybody in the rooms, determine whether or not they were being held against their will or not, and to determine whether or not anybody was injured fast enough in order to get them medical care if they needed it. [¶] . . . [¶] It was as soon as we could get all the other rooms searched and have the manpower to safely address that room” that they returned to room number 129.
B. The Trial Court’s Ruling on the Motion
The trial court denied defendant’s motion to suppress, finding the police were motivated by a desire to protect the safety and security of others and to apprehend the knife-wielding suspect, which created exigent circumstances justifying the warrantless entry of his room.
C. Defendant’s Contentions
Defendant contends that the trial court erred in denying the motion because if the officers were really concerned about someone being inside room number 129 who needed to be protected, they would have broken down the door the first time they were there and not have waited 25-30 minutes, while they searched all the other rooms whose phones had not been answered, before doing so. In other words, he asserts that the detective’s testimony that the officers were entering all the rooms, including number 129, for the safety of others and the apprehension of the suspect, who posed a danger to others, was not worthy of belief. However, this was a credibility determination for the trial court to make. (People v. Woods (1999) 21 Cal.4th 668, 673.) As the People correctly point out, it was not until all the other rooms had been searched and no suspects or victims found and the police knew someone who was attempting to elude them was inside number 129 and that due to the pounding noises coming from inside, they were even more convinced than they had been before that there was an urgency to get inside the room. This implied finding was supported by substantial evidence (People v. Leyba (1981) 29 Cal.3d 591, 596-598) and supports the trial court’s conclusion that the dual and intertwined exigencies of apprehending a knife-wielding suspect and protecting people at the motel justified their warrantless entrance. (Terry v. Ohio (1968) 392 U.S. 1, 20; Tamborino v. The Superior Court of Orange County (1986) 41 Cal.3d 919, 924; People v. Spain (1984) 154 Cal.App.3d 845, 850.)
Defendant also asserts that the police could have obtained a warrant in the 25-30 minutes between the two times they were at the door to room number 129. The detective explained why this was not so. Again, defendant is attacking the credibility of the detective, whom the trial court apparently chose to believe.
Although his argument appears to target the failure to give CALJIC No. 10.67, defendant seems to also suggest that the trial court erred in denying his request to present evidence that the minor victim was emancipated, citing a case in which the judgment was reversed because the trial court denied admission of evidence that defendant had a good faith and reasonable belief that the victim was 18 or over. However, as defendant, himself, points out, the trial court ruled that evidence of the minor victim’s emancipation was irrelevant, the only defense available to defendant being his good faith and reasonable belief that the minor victim was 18. This was entirely correct. Defendant also seems to suggest, under the umbrella of this jury instruction issue, that the prosecutor committed misconduct by stating that these sex crimes were “strict liability” offenses, for which there was no defense because the evidence showed that defendant engaged in the prohibited sex acts with the minor victim and she was under 18. However, as here, in the absence of any evidence that defendant had a good faith and reasonable belief that the victim was 18 or over, the crimes were essentially “strict liability” offenses in the sense that if the evidence persuaded the jury, beyond a reasonable doubt, that defendant had engaged in the charged sex acts with the victim, who was under 18, guilt was established and there was no defense.
Defendant was convicted, in connection with the minor victim, of having unlawful sexual intercourse with a person under the age of 18 who is more than 3 years younger than him, two counts of engaging in unlawful oral copulation with a person under the age of 18 and sexually penetrating a person under the age of 18. He here contends that the trial court had a sua sponte duty to instruct the jury that if he had a reasonable and good faith belief that she was 18 or older, he could not be convicted of these offenses. (CALJIC No. 10.67.) However, there was no evidence introduced at trial that he had such a belief. Therefore, there was no evidentiary basis upon which to give the instruction.
Contrary to defendant’s assertion, we do not consider the minor victim’s witness-stand denial that she told the police defendant did not know how old she was and her denial that she told defendant she was 18 evidence that he had a reasonable and good faith belief that she was 18. Although 17½ years old at the time of the crimes, the minor victim was a friend of the defendant’s sister and both were juniors in high school. Nor do we consider the mere fact that she was 17½, coupled with the fact that she chose to live for a brief time with her friend, defendant’s sister, rather than in the group home where she had been residing, sufficient evidence that defendant had such a belief.
3. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct at several points during argument to the jury by suggesting that his trial attorney had fabricated a defense.
The first set of statements to which defendant calls our attention occurred as soon as the prosecutor began addressing the crimes involving the murder victim. The prosecutor argued that many derogatory insinuations had been made by the defense about the victim, but there was no evidence supporting those insinuations. The trial court overruled defense counsel’s objection that he had made no such insinuations and instructed the jury that arguments by the attorneys was not evidence. The prosecutor then gave an example, i.e., defendant’s mother answering a question non-responsively that the murder victim had been in jail. The trial court overruled defendant’s objection to the statement. The prosecutor then stated that these insinuations were made to get the jury to think less of the murder victim. The trial court overruled defendant’s objection that this was improper argument. The prosecutor then asked the jurors why they thought the defense needed to make them think less of the murder victim. The trial court overruled defense counsel’s objection that there was no evidence that the defense had tried to make the jury think less of the victim and the argument was improper.
The prosecutor then stated, “When the case is proven or is going to be proved, that’s the kind of stuff that happens.” Although defendant here appears to contend that this statement constitutes prosecutorial misconduct, his failure to object to it below forecloses his claim. (People v. Stanley (2006) 39 Cal.4th 913, 952 (Stanley).)
In fact, the defense, on numerous occasions, made such insinuations, both during its examination of witnesses and during argument to the jury. As to the former, the defendant’s sister testified that she did not know how defendant was supporting himself at the time of the murder. Defense counsel then asked the sister how the murder victim was supporting herself at this time. The sister responded that she did not know for sure and the trial court granted the prosecutor’s motion to strike her answer. Defense counsel asked the sister what the defendant’s and the murder victim’s lifestyle was like at the time. The trial court sustained the prosecutor’s hearsay objection to the question. Defense counsel asked the sister if they were going from motel to motel. The trial court sustained the prosecutor’s objection that the question called for speculation and there was no foundation the sister had personal knowledge of the matter. The sister testified that she had met the murder victim for the first time the night of September 18, 2004, when she picked the latter and her brother up and took them to the first motel in Ontario. Defense counsel then asked the sister if she knew if the murder victim was a drug user. The trial court sustained the prosecutor’s objection that the question called for speculation. Defense counsel asked the sister if she had ever seen the murder victim under the influence. The trial court sustained the prosecutor’s “no foundation” objection. Defense counsel asked the defendant’s mother whether defendant and the murder victim did what they could day-to-day to feed themselves. The trial court sustained the prosecutor’s objection, unless the mother had personal knowledge of what the couple did. Defense counsel asked the mother if either defendant or the murder victim were employed. The trial court sustained the prosecutor’s hearsay and speculation objections. During his testimony for the defense, its expert contradicted the conclusion of the prosecutor’s forensic pathologist that this was a strangulation indicative of domestic violence by saying, “[D]omestic violence involves family-related trauma[,] in my opinion, and I do not think that this relationship was a family relationship. My opinion is that this is two sick drug addicts having a sick relationship and not a family relationship, so . . . this is more of a drug abuse type condition where sometimes one or the other individual dies from taking drugs.” The expert repeated his conclusion that the murder victim was a drug addict two more times. Defense counsel relied on this testimony in arguing to the jury that the murder victim was not a cohabitant or former cohabitant of defendant’s, as was required in order to convict defendant of inflicting corporal injury on same, because “[t]hese are either two drug abusers involved in sex or two sex abusers involved in drugs. . . . [W]hen they were together -- day to day on the street, neither one with a job, having to make X amounts of dollars for their motel room to stay there and live there and eat, and the rest of their money, I would suspect, went for drugs.” “[T]hese are drug abusers bent on sex or sex abusers bent on drugs going from motel-to-motel making money however they could do it to pay for their room, their food and their drugs . . . .”
There was no evidence that defendant and the murder victim spent all their remaining money on drugs which was probably why counsel said, “I would suspect.”
Therefore, contrary to defendant’s contention below (and, presumably here), there were many occasions during which defense counsel attempted to insinuate or outright asserted that the murder victim was an unsavory individual. It was entirely proper for the prosecutor to draw this fact to the jury’s attention and to invite the jurors to decide why the defense chose to do this. (People v. Wharton (1991) 53 Cal.3d 522, 567 [“[A]rgument may . . . include reasonable inferences, or deductions to be drawn therefrom.”].)
The major issue concerning the murder charge was the actual cause of the murder victim’s death—the prosecution experts opined it was due to asphyxiation (with methamphetamine toxicity as a contributing cause) and the defense expert concluded it was a methamphetamine overdose and the murder victim had not been strangled. The pathologist who performed the autopsy opined that the hemorrhages in the murder victim’s eyes, face and scalp could not have been caused during the autopsy, but could have been caused by pressure being applied to her neck, through strangulation. A forensic pathologist, testifying for the prosecution, concurred. The defense expert countered that hemorrhages in the eyes or face alone constitute an insufficient basis to conclude that the victim had been strangled. Rather, he opined that the hemorrhages to the face and scalp had been caused after death, during the autopsy. He opined that the hemorrhages to the eyes could have been caused by a prior injury or from her body lying face down in the suitcase after death.
During cross-examination of the defense expert, he refused to concede that the redness to the murder victim’s eyes that resulted from what the evidence showed was nothing other than strangulation by the defendant in June, 2004, was actually so caused, or, even if so, that that would suggest that her death was due to strangulation, not a drug overdose. As a result of this testimony, the prosecutor argued to the jury, “Everybody in the entire courtroom . . ., everybody except [the defense’s expert] . . . knows how th[e murder victim’s] eyes were [reddened in June], right?” The trial court overruled defense counsel’s objection that the statement assumed a fact not in evidence. The prosecutor continued, “Why is it that [the defense expert] can’t be candid and straightforward with you . . . ? Why does he play games with that? Is he an impartial expert that’s coming here to help you, or is he an advocate for one side or the other?” Although defendant failed to object to these latter statements by the prosecutor and thus waived his current assertion that they constituted misconduct (Stanley, supra, 39 Cal.4th at p. 952), they were fair commentary on the expert’s refusal to acknowledge what the evidence established without contest—that the defendant had strangled the murder victim in June, causing hemorrhaging in her eyes.
We reject the “fallback position” defendant argues in his reply brief that it would have been pointless to make this and all the other objections he failed to make as discussed in this opinion. Defense counsel made numerous evidentiary objections throughout trial (far more than in just about any other case we have reviewed) and an equally abnormally high number during the prosecutor’s argument. The trial court carefully considered and ruled on each and every one. Nothing in the record before us suggests that the trial court would not have given objections to the matters addressed in this opinion the same careful consideration.
The prosecutor later returned to the subject of the defense expert, who is a person of nation-wide repute and frequently comments on television concerning famous cases. The prosecutor invited the jury to contemplate why the defense expert was brought into the case, suggesting that he was not an expert in methamphetamine and its toxicity, or what happens to it after the person who has ingested it dies. The prosecutor continued, “[S]o[,] you’ve got to ask yourselves, ‘What in the world is he doing here?’ ‘Why does the defense bring him in here?’ Because . . . if he knew all about methamphetamine, then it might make some sense . . . but when he doesn’t know anything, really, about methamphetamine, what’s he doing here? . . . He was brought here . . . because the defense thinks that because of the celebrity, they could somehow fool all of you. . . . [¶] . . . [¶] You should consider . . . what he knows about methamphetamine because . . . the cause of death . . . is what he was brought here to talk to you about, and you’ve got to ask yourselves, ‘Why did they bring somebody who is absolutely unqualified to do that?’” Defendant did not object to these statements below and therefore waived his current assertion that they constituted misconduct. (Stanley, supra, 39 Cal.4th at p. 952.) Moreover, they did not. (People v. Zambrano (2007) 41 Cal.4th 1082, 1154 (Zambrano) [the prosecutor’s disparagement of defense counsel’s argument as a ‘lawyer’s game’ and an attempt to confuse the jury was not tantamount to accusing counsel of fabricating a defense or factually deceiving the jury, but was the use of “pungent language to describe defense counsel’s tactical effort to exploit what the prosecutor considered a slip of the tongue by a People’s witness”]; Stanley, supra, 39 Cal.4th at p. 952 [the prosecutor telling the jury that defense counsel “‘imagined things that go beyond the evidence’ and told them ‘a bald-faced lie’ . . . [¶] . . . were merely responsive to defense counsel’s own arguments . . . on the state of the evidence. . . . [¶] We reach the same conclusion regarding the prosecutor’s suggestion to the jury that defense counsel was on an ‘imaginary trip’”]; People v. Huggins (2006) 38 Cal.4th 175, 206 [the prosecutor saying, “‘[Defense counsel] . . . tried to smoke one past us’ . . . [¶] . . . was fair comment . . . .”]; People v. Gionis (1995) 9 Cal.4th 1196, 1216, 1218 [the prosecutor saying defense counsel was arguing out of both sides of his mouth and reading four quotes implying that lawyers can make things appear differently than they are was not misconduct]; People v. Marquez (1992) 1 Cal.4th 553, 575, 576 [the prosecutor calling the defense a “smokescreen” was proper]; People v. Bell (1989) 49 Cal.3d 502, 538 [the prosecutor saying it was defense counsel’s job to focus on areas that tend to confuse and “throw sand in [the] eyes” of the jurors is proper].) They were fair comment on reasonable inferences the jury could have derived from the evidence presented that the defense expertise was not strong in the areas mentioned by the prosecutor. The prosecutor went on to make other comments of the same ilk about the defense expert and to argue that the jury should reject his opinions. There is no need to reproduce those statements here and comment upon them as they are no different in substance from those already discussed. We note also that defense counsel below, who frequently objected during argument, objected to none of them.
He was Michael Baden.
Defendant also for the first time objects to the following remarks by the prosecutor during his closing argument, “Critical of the Ontario Police Department. For what? You know, if you can’t argue the facts, you blame the cops. Always. I mean, that’s a trick that happens in cases all the time.” Although defendant implies these remarks were made in the context of the prosecutor’s argument about the defense expert, they were not. Rather, they were a response to the argument by defense counsel criticizing the police for failing to 1) take fingernail scrapings from the victim, 2) dust for the victim’s prints at both motel rooms, 3) take photos of all four sides of the suitcase and dust it for prints before fully opening it at the morgue, and 4) for opening the suitcase enough at the second motel room to determine that there was a corpse inside and moving the body and failing to document the position of the contents. In any event, the argument was fair commentary on what the defense was trying to do. (Zambrano, supra, 41 Cal.4th at p. 1154.)
Finally, defendant contends the prosecutor committed misconduct by saying, during closing argument, that the defense could have called defendant’s other sister to contradict the testimony of the minor victim as to the sex offenses defendant committed against her, but did not do so, because there was no basis upon which to contradict that testimony. This was in response to defense counsel’s argument that the jury should not convict defendant of those sex offenses because the only testimony they had heard on the matter was that victim’s, which had not been corroborated. Defendant’s other sister had shared a room with the minor victim in a home in which the defendant and the murder victim also shared a room at the time of the sex offenses. After the jury left the courtroom to begin deliberations, defense counsel objected to the prosecutor’s remark, saying, “That’s improperly commenting to the jury. We do not have that burden.” However, as the trial court pointed out to defense counsel in overruling his objection, there is nothing improper about calling to the jury’s attention the fact that if the defense had had favorable evidence, they would have presented it and the fact that they did not indicates that they had no such evidence. (People v. Lancaster (2007) 41 Cal.4th 50, 84; People v. Medina (1995) 11 Cal.4th 694, 755 [the prosecutor’s comment on the defense’s failure to call logical witnesses, introduce material evidence or rebut the People’s case is generally proper].)
4. Sentencing
The trial court imposed the upper term on the robbery conviction, finding no mitigating circumstances and four circumstances in aggravation. Two of the four were the facts that defendant was on parole at the time he committed this offense and his prior performance on parole was unsatisfactory. Defendant here contends that the imposition of the upper term violated his right under Cunningham v. California (2007) 549 U.S. 270 to have a jury determine beyond a reasonable doubt facts justifying such a term.
Recently in People v. Towne (2008) 44 Cal.4th 63, 79, the California Supreme Court held, “[T]he federal constituitonal right to a jury trial and proof beyond a reasonable doubt on aggravating circumstances does not extend to the circumstances that a defendant was on probation or parole at the time of the offense . . . .” Additionally, a finding that defendant’s prior performance on probation was unsatisfactory may be made by the trial court, without a jury or proof beyond a reasonable doubt, if it is based on a prior conviction or convictions. (Id. at p. 82.) Here, neither the sentencing court nor the probation report stated why defendant’s performance was unsatisfactory. However, the latter showed that defendant’s probation was revoked at the same time he was convicted of another offense. Under these circumstances, the finding by the trial court is proper. (Ibid.) One aggravating factor is a sufficient basis upon which to impose the upper term. (People v. Black (2007) 41 Cal.4th 799, 816.) Here, there were two. (See People v. Yim (2007) 152 Cal.App.4th 366, 371.)
Disposition
The trial court failed to impose a term for the finding that defendant had suffered a prior conviction for which he served a prison term under section 667.5, subdivision (b). The trial court is directed to omit the reference to a one year term imposed for that finding in the minute order of the sentencing hearing and abstract of judgment, as such imposition did not actually occur. The matter is remanded to the trial court for it to impose a term for that finding and to reflect this fact in an amended abstract of judgment and minutes for the remanded sentencing hearing. In all other respects, the judgment is affirmed.
We concur: HOLLENHORST J., MILLER, J.