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People v. Tricoche

California Court of Appeals, Second District, Sixth Division
Jul 16, 2008
No. B198716 (Cal. Ct. App. Jul. 16, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. FERRIS TRICOCHE, Defendant and Appellant. B198716 California Court of Appeal, Second District, Sixth Division July 16, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Superior Court County of Los Angeles, Super. Ct. No. GA066894. Zaven V. Sinanian, Judge.

Ferris Tricoche, in pro. per.; Heather J. Manolakas, 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, Paul M. Roadarmel, Jr., Lawrence M. Daniels, Supervising Deputy Attorneys General, Yun K. Lee, Deputy Attorney General, for Plaintiff and Respondent.

PERREN, J.

Ferris Tricoche appeals the judgment following a jury trial in which he was convicted of battery with serious bodily injury (Pen. Code, § 243, subd. (d)), assault by means likely to produce great bodily injury (§ 245, subd. (a)(1)), and resisting an executive officer (§ 69). In a bifurcated proceeding, the trial court found true allegations that Tricoche had a prior serious or violent felony conviction (§§ 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and had served six prior prison terms (§ 667.5, subd. (b)). He was sentenced to 12 years state prison, consisting of the upper term of four years on the battery count, doubled for the strike prior, plus an additional four years for the prior prison terms. The court awarded 292 days of presentence custody credit. He contends that his constitutional rights were violated when the trial court excluded some of his victim's prior convictions, and that he was sentenced to the upper term in violation of Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham). He also contends, and the People agree, that he is entitled to 116 days of good time/work time credits that are not reflected on the abstract of judgment. We shall therefore order the judgment amended accordingly. Otherwise, we affirm.

All further undesignated statutory references are to the Penal Code.

Tricoche personally submitted a supplemental brief raising numerous issues. While these papers were accepted for filing, it is well established that criminal defendants "have no right personally to supplement or supersede counsel's briefs and arguments on the merits of their appeals. [Citations.]" (In re Barnett (2003) 31 Cal.4th 466, 473.) "Thus, all appellate motions and briefs must be prepared and filed by counsel and may not be submitted pro se. [Citation.]" (Ibid.) "Any other pro se document offered in an appeal 'will be returned unfiled' [citation], or, if mistakenly filed, will be stricken from the docket [citation]." (Id., at p. 474, fn. omitted.) To the extent Tricoche's supplemental brief could be construed as habeas petition, we would be compelled to summarily deny the petition because his vague and conclusory allegations do not make out a prima facie case for habeas relief.

FACTS AND PROCEDURAL HISTORY

On September 4, 2006, Tricoche got into an argument with a homeless woman at a laundromat parking lot in Pasadena. Thomas Glover approached them and told Tricoche to leave the woman alone because she was "Redbone's wife." After the two men pushed each other several times, Tricoche punched Glover, knocking him down. As Glover was on the ground, Tricoche repeatedly punched and kicked him for over 10 minutes, breaking seven of Glover's ribs and cutting his face in the process. He was subsequently taken to the hospital, where he remained in a coma for three days due to blood that had leaked into his brain.

The police arrived as Tricoche was walking away. When Pasadena Police Officer Thomas Delgado told him to stop, he said, "I'm not stopping for anybody" and continued walking. The officer approached and restrained Tricoche from behind, but he repeated, "I'm not stopping for anybody" and continued to walk. The officer applied a controlled bar hold, took him to the ground, and handcuffed him. Tricoche's blood was recovered from the handle of a screwdriver found on the ground near Glover.

Tricoche sought to introduce Glover's record of prior rape convictions to impeach his testimony. The court ruled that the prosecutor could ask Glover if he had suffered any prior convictions "involving violence against a female." After Glover denied that he had, the parties stipulated he had been convicted of a felony involving violence against a female in 1976 and 1981. Glover further denied that he had been drinking on the day of the incident, and also denied that he ever hit Tricoche. Hospital records also indicated that Glover had a blood alcohol level of 0.174 when he was admitted.

DISCUSSION

I.

The Victim's Prior Convictions

Between 1965 and 1981, Glover had felony convictions for statutory rape, rape by force, making or passing a fictitious check, statutory rape, and cashing a check with insufficient funds. While the court initially granted the People's motion to exclude all of the convictions under Evidence Code section 352 as too remote, it subsequently concluded that Glover's convictions for rape with force in 1976 and 1981 were admissible to support Tricoche's theory of self-defense. The court further concluded, however, that the convictions should be sanitized to omit any reference to the sexual nature of the assaults. Accordingly, the parties stipulated at trial that Glover had separate felony convictions in 1976 and 1981 for crimes involving "violence against a female."

Tricoche contends that the trial court violated his constitutional rights to a fair trial and to confront witnesses by excluding some of Glover's prior felony convictions and sanitizing the two rape convictions that were admitted. He argues that all four of Glover's prior rape convictions were relevant "to establish self defense and defense of others, specifically the woman Glover was harassing prior to attacking appellant and to whom appellant was speaking." He also asserts that the remoteness of his nonviolent convictions was "not a valid reason for the trial court to exclude the evidence in light of [its] probative value." Neither point has merit.

We reject the People's claim that Tricoche forfeited his right to attack the court's decision to sanitize Glover's prior convictions by failing to object below. Tricoche, who represented himself at trial, sufficiently preserved his objection by moving to admit the convictions, and also by opposing the People's motion to exclude them. We also reject the People's claim that Tricoche waived the issue by failing to provide any legal authority or argument to support it in his opening brief.

Regarding Tricoche's claim that the rape convictions were relevant to support his theory of self-defense or defense of others, he offered no evidence in support of such a theory. The court agreed to admit the prior convictions based on an offer of proof that never came to pass. Tricoche did not testify at trial. Moreover, there is no other evidence from which the jury could have found that Tricoche's prolonged attack on Glover was based on a reasonable belief that it was necessary to protect himself or someone else from imminent harm. (See People v. Oropeza (2007) 151 Cal.App.4th 73, 82 [no error in failing to instruct on self-defense where the defendant did not testify that he feared for his imminent safety when the attack occurred and there was no other evidence in that regard].) Glover's prior history of violence was therefore subject to exclusion as irrelevant. (See, e.g., People v. DeSantis (1992) 2 Cal.4th 1198 [recognizing that Evid. Code, § 1103 does not compel the admission of irrelevant evidence].) Tricoche therefore cannot establish that the court was obligated to admit any evidence relating to Glover's prior history of violence, much less that he was prejudiced by its exclusion or sanitation. (People v. Watson (1956) 46 Cal.2d 818, 836 [error in excluding evidence does not compel reversal absent a reasonable probability its admission would have led to a different result]; see also People v. Fudge (1994) 7 Cal.4th 1075, 1102-1103 [recognizing that the application of statutory rules of evidence generally does not infringe on a defendant's constitutional right to present a defense].)

Even if Tricoche could identify evidence supporting a self-defense theory, he cannot establish that the court erred in excluding two of Glover's prior rape convictions, and sanitizing the other two. "A trial court's discretionary ruling under Evidence Code section 352 will not be disturbed on appeal absent an abuse of discretion. [Citation.]" (People v. Lewis (2001) 26 Cal.4th 334, 374.) Glover's conviction for statutory rape in 1966 does not demonstrate any propensity for violence, and his 1967 conviction for rape by force was too remote to have any probative value. (See People v. Shoemaker (1982) 135 Cal.App.3d 442, 446, 447.) While Tricoche argues that the remoteness of the prior convictions does not undermine their probative value when they demonstrate an ongoing pattern of criminal activity (see People v. Green (1995) 34 Cal.App.4th 165, 183), all of the crimes occurred more than 38 years prior to the incident in question. The court also acted within its discretion in sanitizing Glover's other two rape convictions by omitting reference to their sexual nature in order to minimize any risk of undue prejudice. (Evid. Code, § 352.)

Tricoche also fails to establish that the court abused its discretion in excluding Glover's other prior convictions on the ground that they were too remote to impeach his credibility at trial. (See People v. Gonzales (1967) 66 Cal.2d 482, 500 [recognizing that evidence relating to the victim's reputation seven years prior to the crime "was too remote to have present probative value"].) In light of the uncontradicted evidence of his guilt, he also fails to demonstrate a reasonable probability that the result would have been different had the evidence been admitted. (People v. Watson, supra, 46 Cal.2d at p. 836; People v. Fudge, supra, 7 Cal.4th at pp. 1102-1103.)

II.

Upper Term

The trial court sentenced Tricoche to the upper term of four years on the battery count based on several aggravating factors, including his numerous prior convictions of increasing seriousness, the fact that he was on probation when he committed the crime, and his prior unsuccessful performance while on probation and parole. Tricoche acknowledges our Supreme Court's conclusion that a defendant's recidivism renders him or her eligible for the upper term, and that the trial court may thereafter engage in additional factfinding in deciding whether to impose that term. (People v. Black (2007) 41Cal.4th 799, 812.) He nevertheless argues that this conclusion conflicts with the United States Supreme Court's pronouncement in Cunningham that "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, supra, 127 S.Ct. at p. 860.) Tricoche also recognizes that we have no power to deviate from our Supreme Court's conclusion (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but raises the issue to preserve his right to federal review. Because we must follow Black, we need not decide Tricoche's claim that ex post facto principles precluded the court from sentencing him under the current version of section 1170, subdivision (b), which was enacted after Tricoche committed his crimes but prior to sentencing.

III.

Custody Credit

The trial court awarded Tricoche 292 days of presentence custody credit, consisting of 234 days of actual custody and 58 days of conduct credit. Tricoche contends, and the People concede, that the trial court erred in limiting his conduct credit to 15 percent under section 2933.1. Because he was not convicted of a violent felony (§ 667.5, subd. (c)), his credits should have been calculated pursuant to section 4019. Custody credits are calculated under that section by dividing the number of days spent in actual custody by four (i.e., 234 ÷ 4 = 58.5, rounded down to 58), then multiplying that number by two (58 x 2 = 116). Tricoche is therefore entitled to an additional 58 days conduct credit.

DISPOSITION.

The judgment is modified to reflect 350 days of actual presentence custody credit, consisting of 234 days of actual custody credit plus 116 days of conduct credit. The trial court shall amend the abstract of judgment accordingly and forward it to the Department of Corrections. The judgment is otherwise affirmed.

We concur: YEGAN, Acting P.J., COFFEE, J.


Summaries of

People v. Tricoche

California Court of Appeals, Second District, Sixth Division
Jul 16, 2008
No. B198716 (Cal. Ct. App. Jul. 16, 2008)
Case details for

People v. Tricoche

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. FERRIS TRICOCHE, Defendant and…

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

Date published: Jul 16, 2008

Citations

No. B198716 (Cal. Ct. App. Jul. 16, 2008)