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People v. Trevizo

Court of Appeal of California
Jul 1, 2008
No. C051185 (Cal. Ct. App. Jul. 1, 2008)

Opinion

C051185

7-1-2008

THE PEOPLE, Plaintiff and Respondent, v. FRANK TREVIZO, Defendant and Appellant.

Not to be Published


A jury acquitted defendant Frank Trevizo of attempted murder and the lesser included crime of voluntary manslaughter but convicted him of assault with a deadly weapon and found he personally inflicted great bodily injury on the victim, Deniz Chet Lopez. Consequently, the trial court found that defendant violated the conditions of his probation in two separate cases. He was sentenced to the upper term of four years, plus a consecutive term of three years for the great bodily injury enhancement; concurrent terms were imposed in the two other cases.

On appeal, defendant contends (1) he established a claim of racial discrimination during voir dire (Batson v. Kentucky (1986) 476 U.S. 79 ; People v. Wheeler (1978) 22 Cal.3d 258 (hereafter Batson/Wheeler), (2) destruction of juror questionnaires denied him his right to a full and fair review of the Batson/Wheeler issues, (3) the trial court erred prejudicially in admitting evidence of prior bad acts, and (4) imposition of the upper term violated his constitutional rights as set forth in Apprendi v. New Jersey (2000) 530 U.S. 466 (hereafter Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (hereafter Blakely), and Cunningham v. California (2007) 549 U.S. ___ (hereafter Cunningham). Finding no reversible error, we shall affirm the judgment.

FACTS

Defendant and Michelle Lopez began an on-again, off-again relationship in 1993. Because Michelle Lopez and the victim, Deniz Chet Lopez, have the same last name, we will refer to them by their first names for simplicity and to avoid confusion—using Chet for the victim because it is the name used more often for him in the transcript.

On November 9, 2003, Michelle and defendant went to a bar, where defendant was a regular patron. They proceeded to get "very drunk," consuming 8 to 15 bottles of beer and accompanying shots of cognac. Before arriving at the bar, they had consumed drinks at the home of Michelles sister.

Chet and two of his friends, Darren Pyle and Robbie Proctor, were at the bar. While Chet was outside in the parking lot, defendant exchanged "hard looks" with Pyle and Proctor.

Defendant and Chet had been friends when they were teenagers. According to Chet, he and Michelle had a romantic relationship and she was pregnant as a result. Michelle denied ever being involved romantically with Chet.

While Michelle was in the bar drinking with defendant, Chet called Michelle on the bar telephone and told her that defendant had been at the bar a few days earlier with another woman. Michelle got upset and confronted defendant about it. Defendant wanted to know who had called Michelle, and he got "a little mad" when she would not tell him.

When defendant and Michelle left the bar, they went to a nearby gas station, where they planned to meet a group of people. Proctor, Pyle, and Chet had left the bar earlier with Debbie Brown, and they were at the gas station when defendant and Michelle arrived there.

Defendant noticed Chet and went up to his car, where they had a discussion about Michelle. After the discussion became an argument, defendant leaned into the car and stabbed Chet in the side of his chest and his arm. Chet drove off not realizing he was stabbed. Proctor and Pyle followed in their car. Chet pulled over after driving one block. He was bleeding and told Proctor and Pyle that he had been stabbed. Pyle began to drive Chet to a hospital.

Law enforcement learned about the incident when an officer stopped the car, which was speeding over 90 miles per hour to get to a hospital emergency room. The officer called for an ambulance, which took Chet to a hospital where he was treated for 7 to 10 days. Pyle gave a description of Michelles car, in which defendant and Michelle left from the gas station after the stabbing.

An investigating officer saw Michelles vehicle. When it came to a stop, the officer activated the overhead lights on the patrol car. Defendant immediately jumped out of the vehicle but was detained by the officer at gunpoint. A folding knife, with a blade about three inches long and up to an inch and a half wide, was found under the front passenger seat where defendant had been sitting.

At trial, defendant claimed he stabbed Chet in self-defense. He testified as follows:

After Michelle got a call from Chet at the bar, defendant received a call from Debbie Brown, a regular customer of the bar and a friend of Chets. Saying Michelle had plans to "kickback" with Chet that night, Brown warned defendant to be careful because Chet was "tripping," meaning that he was bothered by something. Defendant confronted Michelle with this information, but she denied the alleged plan.

When defendant saw Chet at the gas station, he "[threw] up a peace sign on him" and went over to Chets car to make sure that "everything was cool." He also wanted to give Chet permission to "kick it" with Michelle because defendants relationship with her "wasnt that serious to [him]."

As he was walking to the car, defendant recognized Proctor and Pyle as the men from the bar with whom he had been exchanging hard looks. The realization that they were probably there with Chet made defendant "a little paranoid." He also saw that Proctor and Pyle had large bottles of cognac on their laps.

While defendant and Chet engaged in small talk about Michelle, defendant noticed Chet exchanging looks with Proctor and Pyle, which made defendant believe they were probably "going to get out and jump" him. Thinking about that risk and the large bottles of cognac they had, defendant reached for the knife in his pocket.

According to defendant, "Im like right there standing over his driver side door, and I see [Chet] reaching in his waist area. [¶] And thats when I seen the handle of a gun. . . . And I pulled it [his knife] out, and as hes pulling the gun out, I just started swinging towards his wrist area where his gun is. And like I would say the third time I swung in there, I noticed I hit his hand because the gun — he let go of the gun, and thats when I turned around and ran."

Defendant got into Michelles vehicle, said he thought he had stabbed Chet, and told her to hurry up and leave because defendant was fearful that "they [Chet, Proctor, and Pyle, were] going to start shooting up the car while were leaving." In defendants words, as he and Michelle were driving away, "Im — everything is just going through my mind. Im putting everything together: Debbie called me. She tells me Chet is tripping because they are kicking it. Her sister and her friend were tripping when the[y] got to my moms house saying I ruined their plans and this and that. [¶] It was three of them. There was Chet and his friends. And then Im just tripping. And then finally I said [to Michelle], `You set me up, didnt you? [¶] . . . And she just start[ed] apologizing, `Im sorry, Frank. Im sorry."

At trial, Brown testified that when defendant pulled into the gas station, Brown heard Chet say, "Fuck that motherfucker. Hes mine," and that as defendant walked up to Chets car, Chet pulled a gun out from underneath his seat and put it on his lap. However, in her pretrial statements to both the prosecution and defense investigators, she told them she did not see a gun.

DISCUSSION

I

Defendant contends he established racial discrimination by the prosecutor during voir dire of prospective jurors and, thus, the court erred in denying his Batson/Wheeler motion. We disagree.

"A prosecutors use of peremptory challenges to strike prospective jurors on the basis of group bias—that is, bias against `members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds—violates the right of a criminal defendant to trial by a jury drawn from a representative cross-section of the community under article I, section 16 of the state Constitution. (Wheeler, supra, 22 Cal.3d 258, 276-277; see People v. Griffin (2004) 33 Cal.4th 536, 553.) Such a practice also violates the defendants right to equal protection under the Fourteenth Amendment. (Batson, supra, 476 U.S. 79, 88 [90 L.Ed.2d 69, 82]; see People v. Cornwell (2005) 37 Cal.4th 50, 66; People v. Cleveland (2004) 32 Cal.4th 704, 732.)" (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1008.)

A Batson/Wheeler challenge involves three steps. "First, the defendant must make out a prima facie case `by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. [Citations.] Second, once the defendant has made out a prima facie case, the `burden shifts to the State to explain adequately the racial exclusion by offering permissible race-neutral justifications for the strikes. [Citations.] Third, `[i]f a race-neutral explanation is tendered, the trial court must then decide . . . whether the opponent of the strike has proved purposeful racial discrimination. [Citation.]" (Johnson v. California (2005) 545 U.S. 162, 168 [162 L.Ed.2d 129, 138].)

We review the trial courts ruling to determine if it is supported by substantial evidence. There is a presumption that the prosecutor used peremptory challenges in a constitutional manner, and we "defer to the courts ability to distinguish `bona fide reasons from sham excuses. [Citation.] As long as the court makes `a sincere and reasoned effort to evaluate the nondiscriminatory justifications offered, its conclusions are entitled to deference on appeal. [Citation.]" (People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1009.)

Here, the venire panel consisted of 69 prospective jurors. They were given juror questionnaires prior to the commencement of voir dire. Counsel reviewed only the questionnaires of those prospective jurors who were called to the jury box for voir dire.

The juror questionnaire included inquiries about general qualifications to serve (including whether the person had been convicted of a felony), marital status, education level, employment history, military service, prior jury service, and relationships with law enforcement, victims of crime, or persons arrested for crimes or witnesses to crimes. All of the questionnaires were destroyed after trial and, despite efforts to settle the record, the parties could not recall the responses contained in them.

Defense counsel objected to the prosecutors sixth and ninth peremptory challenges, R.G. and M.G., because they were "male [H]ispanics or Latinos" as is defendant. The court found there was a prima facie Batson/Wheeler showing and asked the prosecutor to explain the challenges.

Initially, the challenge also discussed prospective juror N.C. But the parties ultimately agreed N.C. was not Hispanic. Thus, "[a]lthough the record reflects ample race-neutral reasons for the challenge to [N.C.], we need not discuss them here, as [the] excusal was not based on race within the meaning of defendants Wheeler challenge." (People v. Gutierrez (2002) 28 Cal.4th 1083, 1123.)

The prosecutor stated that M.G. was a young college student, who apparently had never been employed and, thus, did not have the "real world life experience" the prosecutor was looking for in a juror. The prosecutor noted he planned to challenge another prospective juror who had a similar background and lack of life experience. Indeed, the prosecutor ultimately did challenge that other juror.

The prosecutor noted that R.G. had been convicted of a crime; although R.G.s criminal record had been expunged, it was unclear whether he was eligible to sit on the jury; and R.G. or a close friend or relative had "a DUI [driving under the influence of alcohol] and 2 drunk in publics."

The trial court confirmed that R.G.s juror questionnaire acknowledged several arrests, although R.G. did not specify who had been arrested, and that the arrests included battery as well as charges related to alcohol. The court ruled: "Considering the justification for excusing [R.G.] and [M.G.], I dont find that there is evidence of a systematic use of the peremptory challenges to exclude an[] identifiable group, in this case, Latinos or Hispanic. [¶] So the motion is denied."

Because the court found a prima facie case, and the prosecutor gave facially neutral reasons for the challenges, we will focus our analysis on the third step of the Batson/Wheeler inquiry, whether there was purposeful racial discrimination—a determination that required the trial court to make a "sincere and reasoned" evaluation of the prosecutors explanations in light of all the circumstances of the case.

Defendant asserts that the prosecutor "failed to provide race-neutral justifications for the [peremptory challenges to M.G. and R.G.] because the explanations were not clear or reasonably specific, and because they strongly appeared to be pretextual." This is so, defendant argues, because (1) "the prosecutor never asked [M.G.] about his life experience or whether [he] had ever held a job," (2) "[i]f the prosecutor truly believed [R.G.] was not eligible to serve as a juror, presumably he would have challenged him for cause instead of using a precious peremptory challenge to dismiss him," and (3) the prosecutor "failed even to ask [R.G.] whether those offenses [to which R.G. referred in his juror questionnaire] were his," and that because of this failure to "clear up this issue . . ., his reliance on the point appears pretextual."

This leads defendant to conclude the trial court "failed to make a sincere and reasoned effort to evaluate the justifications offered by the prosecutor [for the challenges to R.G. and M.G.]," as shown by the facts the court "(1) merely referred to [R.G.s] reference to several arrests on his questionnaire, speculating that [R.G.] `may have had a number of brushes with the law at least looking at his questionnaire, and (2) . . . referred to nothing more than the prosecutors `justification for excusing [M.G.], with no analysis of the circumstances." We are not persuaded.

"[I]n fulfilling [its] obligation, the trial court is not required to make specific or detailed comments for the record to justify every instance in which a prosecutors race-neutral reason for exercising a peremptory challenge is being accepted by the court as genuine." (People v. Reynoso (2003) 31 Cal.4th 903, 919.) When the court "is fully apprised of the nature of the defense challenge to the prosecutors exercise of a particular peremptory challenge, where the prosecutors reasons for excusing the juror are neither contradicted by the record nor inherently implausible [citation], and where nothing in the record is in conflict with the usual presumptions to be drawn, i.e., that all peremptory challenges have been exercised in a constitutional manner, and that the trial court has properly made a sincere and reasoned evaluation of the prosecutors reasons for exercising his peremptory challenges, then those presumptions may be relied upon, and a Batson/Wheeler motion denied, notwithstanding that the record does not contain detailed findings regarding the reasons for the exercise of each such peremptory challenge." (Id. at p. 929; see also People v. Howard (1992) 1 Cal.4th 1132, 1155 [rulings reviewed with deference].)

Here, the record does not contradict the prosecutors statements or show they were inherently implausible. Nothing in the applicable law required the prosecutor to question M.G. specifically about his life experience, and whether he had ever been employed, before making the reasonable inference that because of his youth and the fact that he was still a college student, M.G. did not have the "real world life experience" the prosecutor desired in an juror. As for R.G., the record shows that he himself clarified he had a criminal history, having been convicted or pled no contest to unspecified crimes in 1997 and 1998, although his record had been expunged. The fact the prosecutor did not challenge R.G. for cause on the ground that his convictions made him ineligible to be a juror is not telling because the prosecutors comment makes it apparent that he did not have enough information to make a challenge for cause and simply decided to use a peremptory challenge based on R.G.s criminal history. Nor is it very telling, as defendant suggests, that the prosecutor did not challenge jurors with relatives "who were prosecuted for, and possibly convicted of crimes." It is much more significant that a prospective juror has been convicted of crime, than if a relative of the prospective juror has a criminal record.

Defendant also argues the trial court did not make a sincere and reasoned evaluation of the prosecutors justifications because it did not weigh all of the factors laid out in Miller-El v. Dretke (2005) 545 U.S. 231 (hereafter Miller-El).

Miller-El "is an extreme case, in which the evidence of the Dallas County, Texas, District Attorneys Offices practice of improperly challenging African-American prospective jurors on the basis simply of race was overwhelming." (People v. Huggins (2006) 38 Cal.4th 175, 232.)

Specifically, defendant complains that the trial court did not articulate a statistical analysis of available Hispanic prospective jurors versus those challenged, or of the individual characteristics of challenged Hispanic jurors compared to unchallenged nonminority jurors. But there is no authority that holds the court was required to engage in this analysis itself. To the contrary, "[w]e do not, and cannot reasonably, require trial judges to perform such analysis itself [citation], but the objecting party may make the argument for the trial court to evaluate. (People v. Johnson (2003) 30 Cal.4th 1302, 1321, orig. italics, overruled on another point in Johnson v. California (2005) 545 U.S. 162 .)

Defendant also contends that after Miller-El, we are required to perform a comparative juror analysis for the first time on appeal. California Supreme Court cases decided since Miller-El have not mandated a comparative juror analysis; they simply have assumed, without deciding, that a comparative juror analysis must be undertaken for the first time on appeal. (People v. Lancaster (2007) 41 Cal.4th 50, 78, fn. 12; People v. Lewis and Oliver, supra, 39 Cal.4th at p. 1017; People v. Huggins, supra, 38 Cal.4th at p. 232; People v. Schmeck (2005) 37 Cal.4th 240, 270.) We will follow the same path and assume, without deciding, that comparative analysis is required for the first time on appeal.

Undertaking this analysis does not alter our conclusion that the trial court did not err in denying defendants Batson/Wheeler motion.

"The fundamental inquiry remains the same after Miller-El as before: Is there substantial evidence to support the trial courts ruling that the prosecutors reasons for excusing prospective jurors were based on proper grounds, and not because of the prospective jurors membership in a protected group? If so, then defendant is not entitled to relief. In undertaking this inquiry, we note that the question is not whether we as a reviewing court find the challenged prospective jurors similarly situated, or not, to those who were accepted, but whether the record shows that the party making the peremptory challenges honestly believed them not to be similarly situated in legitimate respects. . . . Accordingly, we confine our inquiry to whether the prosecutor here honestly found pertinent and legitimate dissimilarities between members of the group he challenged and the group he accepted." (People v. Huggins, supra, 38 Cal.4th at p. 233.)

M.G.

It was undisputed that M.G. was a young college student. Youth and limited life experience are valid race-neutral explanations for a peremptory challenge. (People v. Arias (1996) 13 Cal.4th 92, 139; People v. Sims (1993) 5 Cal.4th 405, 430-431.) Indeed, M.G. was treated no differently than was C.D., a college student whose answers on voir dire were similar to M.G.s and who also was challenged by the prosecutor due to limited life experience. The excusal of a similarly situated prospective juror who was not Hispanic is evidence tending to give credence to the prosecutors race-neutral reasons. (People v. Reynoso, supra, 31 Cal.4th at p. 915.)

The record also shows that, other than Juror No. 4 for whom there is no personal information in the transcript, the sworn jurors had more life experience than did M.G. They had various jobs or were retired, had prior jury experience, had witnessed crimes, had connections to law enforcement, or were married. Therefore, it appears the prosecutor was consistent in the use of life experience as a criteria for jurors.

R.G.

The judge, the prosecutor, and even defense counsel recognized that R.G. had committed crimes in the past. This was a fact that R.G. himself confirmed when he said: "I asked the lady downstairs [presumably the jury commissioner] about . . . convictions. [¶] And in 97, 98 I was convicted or I pled no contest. But since then . . . I filed" to have them "[e]xpunged," and the request was granted. In addition, both the court and the prosecutor reviewed R.G.s questionnaire on the record, noting that in response to the question whether he or a close friend or relative had ever been arrested for a crime, R.G. answered yes, listing a driving under the influence charge, two drunk in public charges, and a battery. As noted by both the court and the prosecutor, it was not clear whether R.G. himself had committed those crimes, but it did indicate a number of "brushes" with the law by either R.G. or someone close to him. A prospective jurors close ties to persons involved in crime is a legitimate race-neutral reason for exercising a peremptory challenge. (People v. Gutierrez, supra, 28 Cal.4th at pp. 1123-1124; People v. Jordan (2006) 146 Cal.App.4th 232, 257-259.)

Defendant notes that sworn Jurors Nos. 3 and 10 "had relatives who were prosecuted for, and possibly convicted of crimes" but were not challenged by the prosecutor. However, they were different from R.G. in significant ways.

Sworn Juror No. 3, whose relative was convicted of driving under the influence with death, also had a fiancé and brother-in-law who were sheriffs deputies and a friend who worked for a police department, and had a cousin who was a victim of a crime. Because family members had been involved in both sides of the legal system, Juror No. 3 stated that neither case involving family had affected the jurors judgment of the system. Juror No. 3 also thought that criminals who had been convicted might be granted too much leeway. These familial connections to law enforcement, victimization of a family member, and feelings about convicted criminals suggested Juror No. 3 might be sympathetic to the prosecution and represented substantial and legitimate distinctions compared to R.G.

Similarly, while sworn Juror No. 10 indicated a sister and a niece had been involved in the legal system, it is not clear that the juror had family members who had been convicted of any crimes. Indeed, while the record is silent as to whether the sister was a victim or an accused, it appears the niece was the victim, not a perpetrator, of a crime. Juror No. 10 expressed dissatisfaction with how the system worked regarding the then 13-year-old niece, who had testified. Juror No. 10 also stated that a single witness, if credible, would be sufficient for Juror No. 10 to find someone guilty beyond a reasonable doubt. Because these responses indicated Juror No. 10 might be sympathetic to the prosecution, there were pertinent and legitimate dissimilarities compared with R.G.

Not mentioned by defendant, Juror No. 8 also had relatives who had "been in trouble" before. However, this juror previously had very good experiences with law enforcement, as they had worked sting operations out of her apartment complex and she had hired law enforcement for security at another of her apartment complexes. Also, like sworn Juror No. 3, Juror No. 8 believed that convicted criminals who are sent to state prison have too many privileges there. Consequently, there were legitimate differences between this juror and R.G.

Moreover, the most important and obvious distinction between R.G. and the sworn jurors was that R.G. himself had been convicted of a crime. R.G.s conviction made him unique among prospective jurors. Contrary to defendants claims, no other sworn juror was similarly situated to R.G. in this regard.

The record indicates prospective Juror R.H. had a criminal conviction, but defense counsel used a peremptory challenge to excuse R.H.

In sum, substantial evidence supports the trial courts ruling that the reasons expressed by the prosecutor for challenging M.G. and R.G. were legitimate and race-neutral. Accordingly, there was no Batson/Wheeler error.

While it is preferable that, in ruling on a Batson/Wheeler motion, the trial court expressly state its determination as to the adequacy of the justification proffered with respect to each peremptory challenge, the trial courts apparent oversight in not doing so in this case cannot reasonably be construed as showing a failure to exercise its responsibilities in ruling upon the motion. (People v. Sims, supra, 5 Cal.4th at p. 431.) This is so because the court permitted argument by both the prosecutor and defense counsel relating to the stated justifications for the challenges to M.G. and R.G., and the record of the voir dire of these prospective jurors amply supports those justifications.

II

Defendant next contends his conviction must be reversed because the trial courts failure to retain the jury questionnaires deprived defendant of his due process right to an adequate appellate record and, thus, prevents effective review of his Batson/Wheeler claim. Again, we disagree.

"[S]tate law entitles a defendant only to an appellate record `adequate to permit [him or her] to argue the points raised in the appeal. [Citation.] Federal constitutional requirements are similar. The due process and equal protection clauses of the Fourteenth Amendment require the state to furnish an indigent defendant with a record sufficient to permit adequate and effective appellate review. [Citations.] . . . The defendant has the burden of showing the record is inadequate to permit meaningful appellate review. [Citation.]" (People v. Rogers (2006) 39 Cal.4th 826, 857-858; accord, People v. Rundle (2008) 43 Cal.4th 76, 110-111; People v. Alvarez (1996) 14 Cal.4th 155, 196, fn. 8; People v. Howard, supra, 1 Cal.4th at p. 1165.)

Here, defendant argues that all the responses from all the prospective jurors, those challenged and not challenged, need to be analyzed to evaluate the validity of the prosecutors reasons for excusing M.G. and R.G. He claims that without the information in the questionnaires, we cannot determine (1) whether any other prospective or seated jurors had similar responses, (2) whether other jurors were questioned more or less closely, (3) whether the prosecution tried to rehabilitate some jurors with questionnaire responses similar to those of the challenged jurors, and (4) whether any of the responses on the questionnaires were misinterpreted by the prosecution or the court. Defendant goes on to claim that the record demonstrates the "questionnaire answers of the challenged jurors were of vital importance." Defendant essentially contends, based on Miller-El, that we should conduct a de novo type of review of the trial courts ruling and destruction of the questionnaires prohibits us from doing so.

As discussed above, we conclude that Miller-El does not require a reviewing court to conduct a different Batson/Wheeler inquiry. Rather, the question is whether substantial evidence supports the trial courts ruling that the reason for the challenge was based on proper race-neutral grounds. (People v. Huggins, supra, 38 Cal.4th at p. 233; People v. Jordan, supra, 146 Cal.App.4th at p. 249.) And we do not agree that we are required to analyze the responses of all the prospective jurors, those challenged and not challenged. Comparative juror analysis has focused on comparing the responses of challenged jurors and sworn jurors. (See People v. Avila (2006) 38 Cal.4th 491, 547; People v. Jurado (2006) 38 Cal.4th 72, 105; People v. Schmeck, supra, 37 Cal.4th at p. 270.)

Where information in the jurors questionnaires is otherwise preserved in reporters or clerks transcripts through "quotation and paraphrase," the absence of the questionnaires does not prejudice defendants ability to urge his Batson/Wheeler claim. (People v. Alvarez, supra, 14 Cal.4th at p. 196, fn. 8; People v. Haley (2004) 34 Cal.4th 283, 305; People v. Jordan, supra, 146 Cal.App.4th at p. 232.)

Here, the record is sufficient to allow us to analyze it in light of the prosecutors proffered reasons for challenging specific jurors. While some of the details from the questionnaires have been lost, the attorneys were allowed to explore—during voir dire—the answers given in the questionnaires. They frequently made reference to those answers on the record during voir dire. In so doing, much of the relevant information is preserved in the record.

The voir dire provided additional information from which we can compare the challenged jurors with the sworn jurors. As we have pointed out, the voir dire transcript reveals legitimate bases for the challenges to M.G. and R.G. Our comparative analysis demonstrates the record is "sufficiently complete for us to be able to conclude that [the jurors] were not challenged and excused on the basis of forbidden group bias." (People v. Ayala (2000) 24 Cal.4th 243, 270.) "Defendant fails to show prejudice because he does not explain how the missing juror questionnaires undermine this fact. We therefore conclude that the absence of the juror questionnaires does not impede meaningful appellate review in this case." (People v. Haley, supra, 34 Cal.4th at pp. 305-306, orig. italics.)

We acknowledge that trial courts should preserve all of the juror questionnaires whenever a Batson/Wheeler motion has been made. However, because "[c]riminal defendants are entitled to due process, not perfect process," an "imperfect representation of the [questionnaires] is not grounds for reversal unless it is reasonably probable the outcome is affected by the deficiencies in the record. [Citation.] . . . [¶] While the defendant is entitled to a record adequate to afford a meaningful appeal, he bears the burden to show the deficiencies in the record are prejudicial. [Citation.] That burden is not carried by simply citing an administrative dereliction." (People v. Coley (1997) 52 Cal.App.4th 964, 969-970.)

Such is the case here. Defendant has failed to demonstrate that the appellate record is inadequate to permit meaningful review of his claim of Batson/Wheeler error.

III

Defendant contends the trial court abused its discretion by allowing evidence of his prior bad acts to prove a common scheme or plan. Not so.

Prior to trial, defendant filed a motion to exclude evidence of two prior assaults, one in May 2001 involving Steve Montez, and one in October 2002 involving Adam Valdez. Specifically, the proffer regarding Valdez was that Valdez had been dating defendants sister, Erika. On an October 2002 evening, Valdez drove to Erikas house. As Valdez was sitting in the drivers seat of his car, defendant walked up and hit Valdez in the head with a beer bottle. Valdez sustained a two-inch cut on the left side of his face near his eye. Valdez and defendant had problems in the past, but Valdez did not know why defendant hit him that day. With regard to Steve Montez, the proffer was that in the evening of May 2, 2001, Montez was sitting in his car at a gas station talking on his cell phone. Defendant approached Montez and greeted him with a "Hey Steve." Then, unprovoked, he hit Montez three times in the face. Montez was bleeding profusely and suffered a quarter-inch cut across the bridge of his nose. Previously, Montez had a problem with one of defendants friends over a girl, but Montez did not know why defendant hit him.

At the hearing on this motion, the prosecutor argued that the incidents were evidence of a common plan or design, identity, and intent, and that the evidence was particularly probative on the issue of intent because self-defense and imperfect self-defense were available to defendant. As for the common scheme or plan, the prosecutor stated when defendant "decides that he wants to assault somebody, he does it when they are sitting in the front seat in the drivers side of a car with the window down. [¶] He goes up. They are unsuspecting of his intention. He approaches them, says something to them, hits them, whether it be with his fist in the face, whether it be with a beer bottle on their head or whether it be multiple stabbings on their arm and torso while they are still seated defenseless in the car. [¶] They have no opportunity to really even raise their arms or turn themselves in order to avoid his blows. He does it quickly, suddenly, and then he immediately flees." The prosecutor also indicated that the evidence would take at most four witnesses and one day to be presented, thus it would not be unduly time consuming.

Defendant asserted that the defense would focus on whether he had the requisite intent in committing the crimes and that, even with a proper limiting instruction, the jury would improperly use the testimony as evidence of his "propensity to smack people in a car." He also argued allowing the evidence would result in a mini trial with various witnesses contradicting each other.

After reading the briefs and hearing the parties arguments, the trial court found the evidence was admissible under Evidence Code section 1101, subdivision (b) as it tended to show a common plan or design and might be important in establishing identity and intent. (Further section references are to the Evidence Code unless otherwise specified.) The court then went on to conduct a section 352 analysis and found that the evidence was probative because it tended to show "defendant committed the crime without justification, without acting in self-defense or provocation, [or] other provocation. It would also tend to establish that he went — that he is, in fact, the person who committed the stabbing at the scene of the crime. [¶] So it has considerable probative value in establishing identity and intent." The court did not accept that the evidence would be unduly confusing or time consuming, and found that with a proper limiting instruction, the evidence would not be misused by the jury and, therefore, would not be unduly prejudicial to defendant.

Contrary to defendants claim that "the court did not say anything about an Evidence Code section 352 analysis," the courts section 352 analysis takes up more of the transcript than its section 1101 ruling.

There was no reversible error, as we will explain.

"`"Evidence of the defendants commission of a crime other than one for which the defendant is then being tried is not admissible to show bad character or predisposition to criminality but it may be admitted to prove some material fact at issue, such as motive or identity. (Evid. Code, § 1101.) Because evidence of other crimes may be highly inflammatory, its admissibility should be scrutinized with great care. [Citation.]" [Citation.] In cases in which the prosecution seeks to prove the defendants identity as the perpetrator of the charged offense by evidence he had committed uncharged offenses, admissibility "depends upon proof that the charged and uncharged offenses share distinctive common marks sufficient to raise an inference of identity." [Citation.] A somewhat lesser degree of similarity is required to show a common plan or scheme and still less similarity is required to show intent. [Citation.] On appeal, we review a trial courts ruling under Evidence Code section 1101 for abuse of discretion. [Citation.]" (People v. Roldan (2005) 35 Cal.4th 646, 705.)

"`Although precise definition is difficult, it is generally accepted that the appropriate test of abuse of discretion is whether or not the trial court exceeded the bounds of reason, all the circumstances before it being considered. [Citations.] . . . [W]hen two or more inferences can reasonably be deduced from the facts, a reviewing court lacks power to substitute its deductions for those of the trial court. [Citations.] [Citation.]" (People v. Superior Court (Alvarado) (1989) 207 Cal.App.3d 464, 477.)

Defendant argues that the evidence was inadmissible to show common plan or scheme and that the "problem" with admitting it was that the evidence adduced at trial described a "culture of people who spend a lot of time in their cars" and a "macho culture where men commonly fight with their fists, compete with each other for the attention of women, and employ weapons in some of their disputes." Defendant also contends that the evidence adduced at trial was not sufficiently similar to the charged acts so as to have a tendency to establish a common scheme, particularly because no weapon was involved and Montez testified at trial that he provoked defendant.

Initially, we observe that the fact the evidence could be characterized as defendant has done (a characterization with which we do not necessarily agree) does not mean the evidence of his prior misconduct was inadmissible. More importantly, he analyzes the issue based on the evidence that was presented at trial, not on the evidence proffered at the time the ruling on admissibility was made. In reviewing the trial courts ruling, we must consider the facts that were before the trial court at the time of its ruling. (People v. Welch (1999) 20 Cal.4th 701, 739; People v. Hernandez (1999) 71 Cal.App.4th 417, 425, ["We may assess the trial courts ruling only on the facts made known to it at the time it made that ruling"].) Thus, we evaluate whether the trial court abused its discretion in determining the evidence was admissible, based on the evidentiary proffers made. Lastly, defendant argues only that the evidence was inadmissible on the issue of common scheme or plan. However, the evidence was not only admitted on that basis. It was admitted as relevant to common scheme or plan, intent and identity.

We recognize that the proffers differed from the evidence actually adduced at trial in some significant respects. Valdez did not testify at all, and Montez testified he had "provoke[d]" defendant by saying "Fuck you" to defendant. At trial, based on the discrepancy between the proffers and the evidence presented, defendant made a motion to strike Montezs testimony, which was denied. Defendant does not challenge the denial of that motion.

Based on the discrepancies between the proffer and Montezs actual testimony, and the fact that Valdez did not testify at trial, the jury was given a limiting instruction that the Montez evidence could only be used if it tended to show a common scheme or plan which would show the existence of unlawful intent on the assault charge. This instruction was precisely what defense counsel requested and is therefore not at issue in this appeal.

"As Evidence Code section 1101, subdivision (b) recognizes, that a defendant previously committed a similar crime can be circumstantial evidence tending to prove his identity, intent, and motive in the present crime. Like other circumstantial evidence, admissibility depends on the materiality of the fact sought to be proved, the tendency of the prior crime to prove the material fact, and the existence vel non of some other rule requiring exclusion. [Citation.] Defendant placed all issues in dispute by pleading not guilty. [Citation.]" (People v. Roldan, supra, 35 Cal.4th at pp. 705-706.) Here, defendant not only placed all of these issues in dispute in a general sense by pleading not guilty, he specifically and expressly made intent a material issue by raising a claim of self-defense or imperfect self-defense.

"`The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] The more often a similar result occurs, the less likely it is the defendant acted inadvertently or in self-defense. Consequently, `to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant "`probably harbor[ed] the same intent in each instance. [Citations.]" [Citations.]" (People v. Walker (2006) 139 Cal.App.4th 782, 803.)

"To establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual." (People v. Ewoldt (1994) 7 Cal.4th 380, 403.)

The proffers were that defendant had, on two separate occasions in each of the two years immediately preceding the current offense, assaulted someone who had been his friend, while the victim was sitting in his parked car. In both cases, the person assaulted had no weapon and had done nothing to provoke defendant. In both cases, there was a history between defendant and the victim.

These acts may be explained as "caused by a general plan" to assault men with whom defendant had some conflict, in a manner that not only facilitated his ability to get away from the conflict but also minimized their ability to respond in kind. (See People v. Catlin (2001) 26 Cal.4th 81, 111.) The specific differences in the assaults, such as the fact that defendant used different weapons, does "not negate the basic similarity between the . . . incidents or render unreasonable the inference therefrom that defendant acted according to a common design or plan. Rather, these differences affect the strength of the inference." (People v. Dancer (1996) 45 Cal.App.4th 1677, 1690, disapproved on other grounds in People v. Hammon (1997) 15 Cal.4th 1117, 1123.)

Although the similarities between the attacks on Montez and Valdez may not have been sufficient to support an inference regarding identity, the trial court plainly did not abuse its discretion in concluding they were sufficient to allow testimony regarding these assaults on the issues of intent and common scheme. (See People v. Walker, supra, 139 Cal.App.4th at p. 805; cf. People v. Carter (2005) 36 Cal.4th 1114, 1148 ["Although the evidence of Kims death did not share the distinctive features of the murders charged in the present case, it clearly was relevant on the issues of intent and a common plan"].)

Based on defendants claims of self-defense, expressly putting the issue of intent in issue, and the similarity of his uncharged acts as put forth in the proffers, the trial court did not abuse its discretion in concluding the evidence was probative.

"There is an additional requirement for the admissibility of evidence of uncharged crimes: The probative value of the uncharged offense evidence must be substantial and must not be largely outweighed by the probability that its admission would create a serious danger of undue prejudice, of confusing the issues, or of misleading the jury. [Citation.]" (People v. Kipp (1998) 18 Cal.4th 349, 371.) We review this determination also for an abuse of discretion. (Ibid.)

We find no such abuse. The California Supreme Court has identified various factors in determining whether the probative value of the evidence is outweighed by its prejudicial effect. Specifically, "(1) whether the inference of a common design or plan is strong; (2) whether the source of evidence concerning the present offense is independent of and unaffected by information about the uncharged offense; (3) whether the defendant was punished for the prior misconduct; (4) whether the uncharged offense is more inflammatory than the charged offense; and (5) whether the two incidents occurred close in time." (People v. Dancer, supra, 45 Cal.App.4th at p. 1690, disapproved on other grounds in People v. Hammon, supra, 15 Cal.4th at p. 1123.)

For the reasons explained above, we reject any claim that the inference of a common plan is weak. Further, the evidence of each of the incidents came from independent sources; the jurors learned that defendant had been convicted for prior misconduct—hence, there was no risk they would feel compelled to punish him for past misdeeds; the prior incidents evidence was not more inflammatory than the evidence of the current charge; and the incidents were not remote in time, occurring in the two years immediately preceding the current offense. Thus, the court reasonably could conclude that the probative value of the evidence outweighed any prejudicial effect. Accordingly, the court did not abuse its discretion in allowing introduction of the evidence of defendants prior acts.

IV

Defendant next contends his felony assault conviction must be remanded for resentencing because the trial court violated the holding of Cunningham, supra, 549 U.S. at page ___ by imposing the upper term sentence based on acts not submitted to the jury or admitted by defendant. The contention fails.

The trial court imposed the upper term because "the crime involved great violence and a high degree of cruelty, viciousness and callousness. [¶] The conduct of [defendant] indicates hes a serious danger to society. The defendants prior performance on probation has been unsatisfactory. And he was on probation at the time of the offense in this case."

"Under Californias determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. [Citation.] Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not `legally entitled to the middle term sentence, and the upper term sentence is the `statutory maximum." (People v. Black (2007) 41 Cal.4th 799, 813 (hereafter Black II).) In other words, if there is a single aggravating circumstance that satisfies Blakely, "any additional factfinding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial." (Id. at p. 812.)

In his reply brief, defendant argues Black II was incorrectly decided. We, of course, are bound by it. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

A sentencing court may rely on the fact of a prior conviction to impose an upper term sentence, even when that fact has not been submitted to a jury and proved beyond a reasonable doubt and has not been admitted by defendant. (Cunningham, supra, 549 U.S. at p. ___ ; see Almendarez-Torres v. United States (1998) 523 U.S. 224, 243 [140 L.Ed.2d 350, 368] (hereafter Almendarez-Torres); Blakely, supra, 542 U.S. at p. 301 ; Apprendi, supra, 530 U.S. at pp. 488-490 [147 L.Ed.2d at pp. 454-455].)

Prior convictions are exempt from the jury trial requirement because the fact of a prior conviction "`does not relate to the commission of the offense" for which the defendant is being sentenced (Apprendi, supra, 530 U.S. at p. 496 ), and "the certainty that procedural safeguards attached to any `fact of prior conviction, . . . mitigate[s] the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a `fact increasing punishment beyond the maximum of the statutory range" (id. at p. 488 ).

The prior conviction exception to the right to a jury trial on sentencing factors encompasses the circumstance that a defendant committed a crime while on probation. (People v. Towne (2008) __ Cal.4th __, __ [June 26, 2008, No. S125677], slip opn. at pp. 15-17.) This is so because it is a circumstance that "arises out of a prior conviction and results from procedures that were conducted in accordance with constitutional requirements designed to ensure a fair and reliable result. Furthermore, the circumstance of . . . probation or parole status ordinarily is well documented in the same type of official records used to establish the fact and nature of a prior conviction . . . ." (Id. at p. __, slip opn. at p. 16.) Thus, in determining whether a defendant committed an offense while on probation, "the trial court is not required to make any factual finding regarding the charged offense. It need only determine the period during which the defendant was on probation or parole and compare those dates to the date of the charged offense, as found by the jury. The trial court may find this aggravating circumstance to exist, without engaging in any factfinding regarding the charged offense. Accordingly, a trial courts conclusion that the charged offense was committed while the defendant was on probation or parole, like a finding of a prior conviction, does not require judicial factfinding regarding the charged offense." (Id. at p. __, slip opn. at p. 16.)

In sum, "the aggravating circumstance that a defendant . . . was on probation or parole at the time the crime was committed may be determined by a judge and need not be decided by a jury." (People v. Towne, supra, __ Cal.4th at p. __, slip opn. at p. 1.)

Because this aggravating circumstance alone made defendant eligible for the upper term, and it validly served as a basis for the upper term without having been submitted for a jury finding, the trial courts additional factfinding regarding aggravating circumstances did not violate defendants right to a jury trial (Black II, supra, 41 Cal.4th at p. 812), and the court did not err in imposing the upper term.

DISPOSITION

The judgment is affirmed. The trial court is directed to (1) amend the abstract of judgment to reflect that the violation of Penal Code section 245, subdivision (a)(1), for which the court imposed the base term, was count 2, not count 1, of superior court case No. 03F09934, and (2) send a certified copy of the amended abstract to the Department of Corrections and Rehabilitation.

We concur:

BLEASE, J.

NICHOLSON, J.


Summaries of

People v. Trevizo

Court of Appeal of California
Jul 1, 2008
No. C051185 (Cal. Ct. App. Jul. 1, 2008)
Case details for

People v. Trevizo

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. FRANK TREVIZO, Defendant and…

Court:Court of Appeal of California

Date published: Jul 1, 2008

Citations

No. C051185 (Cal. Ct. App. Jul. 1, 2008)