P. v. Chokr

Filed 6/29/07 P. v. Chokr CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Richard M. King, Judge. Affirmed.

Dennis L. Cava, 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, Ronald A. Jakob and David Delgado-Rucci, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

Nizameddine Hassan Chokr appeals from the judgment sending him to prison for five years eight months following a jury trial in which he was convicted of two separate counts of indecently exposing himself after already having been convicted of that crime. (See Pen. Code,  314, subd. (1).) The charges were enhanced by two years because Chokr committed the new offenses while he was conditionally released pending trial on other felony charges. (See Pen. Code,  12022.1, subd. (b).)

Chokr contends that his convictions for indecent exposure must be reversed because the court instructed the jury as to the definition of the reasonable doubt burden of proof by using the new instruction on that topic published by the Judicial Council of California (CALCRIM). Alternatively, he requests a remand for resentencing because the trial court failed to follow the probation officers recommendation to refer the case for a diagnostic evaluation to the Department of Corrections (CDC) and because he alleges the upper term was selected in violation of the dictates of Cunningham v. California(2007) 549 U.S. __ [127 S.Ct. 856]. We affirm.

FACTS

The prosecution presented proof of Chokrs prior conviction for indecent exposure in the form of a certified copy of the prior judgment with various documents from Orange County dated November 2, 2000. Additionally, the actual event was proven by the testimony of Susana S. She testified that, upon returning to her motel room in September 2000, Chokr approached she and her partner Jose, asking whether they wanted to have a threesome. At the time, the couple had their two-year-old son, Jose, with them in their car. Susana S. parked their car and hurriedly returned to their room. Meanwhile, Jose walked with the toddler towards their room. Chokr followed behind him for a short ways but then tapped Jose on the back, unzipped his pants and began masturbating.

To prove the present charges, the prosecution called the two victims of the crimes, I. H. and Alicia O. Alicia O. was the sole worker at Jax Donuts at 4:30 a.m. in August 2005 when Chokr entered the shop. He ordered a croissant and milk and sat down to eat. However, he started up a conversation with Alicia O., complaining to her that he had a problem. When she inquired as to what was the matter, he unzipped his pants and commenced masturbating. He told her not to call the police. She disregarded him and called them anyway.

On December 3, 2005, I. H. was working at Angelos Hamburgers just after midnight. Chokr entered the place, ordered a beer and then placed an order for some food to go. While waiting for the order, he stood by the cash register and began to masturbate. The staff called the police.

Chokr defended against the charges by testifying to a variety of different stories: (1) He contended that he merely wanted to go to the bathroom to urinate when Susana S. told him he could not use her motel bathroom and instructed him to urinate in the parking lot; (2) Alicia O. made advances to him which he resisted but she overpowered him, resulting in her forcibly masturbating him; (3) he was wiping himself due to an urethral discharge when one of the staffers at Angelos Hamburgers grabbed him and restrained him until some officers arrived who accused him of masturbating, which he denied.

DISCUSSION

Chokr argues that the trial courts use of the new instruction for the definition of the reasonable doubt burden of proof was deficient. He compares the two instructions, CALCRIM 220by which the trial court defined reasonable doubt for this jurywith the instruction formerly given to juries, known as CALJIC No. 2.90. As there is a slight variance between the two definitions, he concludes the jury that convicted him was deficiently informed of the burden of proof that the prosecution had to meet to convict him. He suggests an entirely different instruction, comparing the various types of burden of proof and emphasizing that the reasonable doubt standard is the hardest to meet. We disagree.

CALJIC No. 2.90 defines the reasonable doubt burden of proof as follows:

It is not a mere possible doubt; because everything relating to human affairs is open to some possible or imaginary doubt. It is that state of the case which, after the entire comparison and consideration of all the evidence, leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge. (Italics added; see also Pen. Code,  1096.) This description has been conclusively settled as accurate and adequate. (See Lisenbee v. Henry (9th Cir. 1999) 166 F.3d 997, 999-1000; People v. Hearon (1999) 72 Cal.App.4th 1285, 1286-1287.)

The new instruction, CALCRIM No. 220, includes its own very similaralthough not absolutely identicaldefinition for reasonable doubt. As given, it provides that a defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime beyond a reasonable doubt. The instruction then continues by stating, [p]roof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. (Italics added.) The instruction concludes with the following: In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty. (CALCRIM No. 220 (2006), as given.)

Chokr argues that CALCRIM No. 220 is unconstitutional because it does not define abiding conviction. He draws on various decisions which deal with the phrase under very different circumstances. In Colorado v. New Mexico (1984) 467 U.S. 310, the United States Supreme Court had the occasion to review a law governing equitable apportionment of water. In that law, the jury was to determine the issue by clear and convincing evidence, a standard which the United States Supreme Court held required an abiding conviction that the truth of its factual contentions are highly probable. (Id. at p. 316.) Chokr argues that if such a phrase is required in the lower burden of proof of clear and convincing evidence, how much more important it must be for the ultimate burden of proof beyond a reasonable doubt.

Although the phrase is essential, as held in the Colorado opinion, Chokr argues it is simultaneously archaic and potentially confusing or misleading, as noted in People v. Mayo (2006) 140 Cal.App.4th 535 at pages 551-552, quoting from Justice Mosks concurring opinion in People v. Brigham (1979) 25 Cal.3d 283, 299.[1] Thus, clarification of the phrase is necessary whenever used, he argues, particularly when the instruction establishes the burden of proof in a criminal case.

The United States Supreme Court has already established that the definition of proof beyond a reasonable doubt is sufficient and correct when employing the phrase, abiding conviction. (See Victor v. Nebraska (1994) 511 U.S. 1, 14-15.) Although the terms moral evidence and moral certainty were deemed archaic, Californias reasonable doubt instructions use of an abiding conviction was not. (Id.at 12-15.) Likewise, our state Supreme Court has approved use of the phrase in the reasonable doubt instruction. (People v. Freeman (1994) 8 Cal.4th 450, 504, fn. 9; People v. Brigham, supra, 25 Cal.3d at 290-291; see also People v. Barillas (1996) 49 Cal.App.4th 1012, 1022 [use of term abiding conviction but without moral certainty is adequate instruction]; People v. Carroll (1996) 47 Cal.App.4th 892, 895-896.)

Chokr pursues the issue, notwithstanding the contrary authority, contending the phrase is ambiguous. He argues that it fails to inform jurors of the degree of persuasion that must be met before conviction can be found. Chokr suggests the California instruction should be modified to read, An abiding conviction based on proof beyond a reasonable doubt is the highest level of certainty recognized in the law. It requires a greater degree of certainty than is necessary to form a strong and convincing belief. It also requires a greater degree of certainty than the next lower standard of clear and convincing evidence. The clear and convincing standard requires evidence of such convincing force that it demonstrates, in contrast to the opposing evidence, a high probability of the truth of the facts for which it is offered as proof. . . . Again, the proof beyond a reasonable doubt standard requires a greater degree of certainty than that required to meet the clear and convincing evidence standard.

The ambiguity Chokr fears inherent in the instruction is not seen by us or by the various courts which have reviewed the use of the phrase in CALJIC No. 2.90 or other states instructions. (See Victor v. Nebraska (1994) 511 U.S. 1; Sandoval v. California (1993) 509 U.S. 954 [California instruction adequately defines reasonable doubt]; but see Cage v. Louisiana (1990) 498 U.S. 39 [reasonable doubt instruction defective when burden of proof defined as an actual substantial doubt].) Thus, we are neither convinced that the phrase is inherently ambiguous nor that it was incumbent on this trial court to modify it sua sponte.[2]

Sentencing

Diagnostic Evaluation

Chokr contends the trial court failed to exercise its discretion when it imposed sentence without first ordering him for a diagnostic evaluation under Penal Code section 1203.03.[3] He concludes that such an order was necessitated by the probation officers recommendation of such an option in the probation report. However, the statute authorizing such an evaluation places the discretion entirely within the sentencing court, conditioned only on whether that court found such a report essential for a just disposition of the case. (See fn. 2, ante.)

The trial court read and considered the probation report, denied probation and imposed sentence, making certain findings. Those findings were that Chokrs extensive criminal record included offenses of increasing seriousness and sophistication and that he consistently failed during his previous grants of probation.

To overturn a sentencing courts discretionary choice under Penal Code section 1203.03, the defendant carries the very heavy burden of showing that the court exercised that discretion in an arbitrary or capricious manner. (See People v. Groomes (1993) 14 Cal.App.4th 84, 87; People v. Swanson (1983) 142 Cal.App.3d 104, 111 [abuse of discretion to deny diagnostic evaluation only if it exceeds the bounds of reason.) No such abuse is shown if a trial court concluded the diagnostic study would provide no new information. (E.g., People v. Lawrence (1985) 172 Cal.App.3d 1069, 1075.)

Chokr has failed to show that the courts imposition of sentence without that evaluation was an abuse of discretion in this case. A diagnostic evaluation could have done nothing to change the facts presented in the trial itself and from Chokrs criminal record. The courts choice of sentence was clearly the result of Chokrs own unending recidivism of sexual offenses and failure to change his aberrant lifestyle.

Cunningham and the Aggravated Term

In supplemental papers, Chokr contends the trial court deprived him of his constitutional right to have the jury decide every sentence-enhancing fact. (Cf. Cunningham v. California, supra, 549 U.S. __ [127 S.Ct. 856].) Because the judge imposed the upper term for one count of felonious indecent exposure, Chokr demands a remand for resentencing. We disagree.

The jury found he had a prior conviction for indecent exposure as it was an element required for the felony status of the present charges. Moreover, the jury also found he had specifically committed these offenses while conditionally released on other felony charges. The sentencing court selected the upper term due to Chokrs criminal record, a factor traditionally within the courts discretionary fact-finding powers and not that of the jurys. (See Almendarez-Torres v. United States (1998) 523 U.S. 224, 246; Apprendi v. New Jersey(2000) 530 U.S. 466, 488.)Cunningham spelled out this distinction by noting the Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. (Cunningham v. California, supra, 549 U.S. at p. __ [127 S.Ct. at 860], italics added.)

Chokrs failure on probation was likewise a factor within the sentencing courts knowledge relating to the prior convictions that justified the selection. (See

People v. Thomas (2001) 91 Cal.App.4th 212, 221-223; People v. McGee (2006) 38 Cal.4th 682, 700-706; see also Almendarez-Torres v. United States, supra, 523 U.S. at p. 246.) Chokr replies that the trial court delineated a series of reasons in support of the upper term.[4] As the prosecution cannot possibly demonstrate beyond a reasonable doubt that those other factors did not pivotally contribute to the decision, Chokr contends the remand is mandated, citing Yates v. Evatt (1991) 500 U.S. 391, 403, and Chapman v. California (1967) 386 U.S. 18, 24.

A single acceptable reason supportive of the selected term warrants affirmation of that sentencing choice. (See Pen. Code,  1170, subd. (b); see also Blakely v. Washington (2004) 542 U.S. 296, 305.) Moreover, any error of this type is subject to the harmless-beyond-a-reasonable-doubt standard found in Chapman v. California, supra, 386 U.S. 18, 24. (See Washington v. Recuenco (2006) __ U.S. __ [126 S.Ct. 2546, 2553].) Since one of those enunciated factors was the criminal record of the defendant, a matter outside the purview of the jury, any possible error was clearly harmless beyond a reasonable doubt (See e.g., People v. Burch (2007) 148 Cal.App.4th 862, 873.)

The judgment is affirmed.

SILLS, P. J.

WE CONCUR:

RYLAARSDAM, J.

FYBEL, J.

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[1] In Brigham, Justice Mosk found that abiding conviction had an antique ring to it. (People v. Mayo, supra, 140 Cal.App.4th at p. 551.) Based on this nebulous quality, the Mayo court found the trial courts inadvertent failure to use it in the reasonable doubt instruction to be harmless error. (Id. at pp. 550-551.)

[2] Chokrs reliance on People v. Flores (2007) 147 Cal.App.4th 199 is misplaced: The error necessitating reversal was the complete absence of any instruction defining the burden of proof beyond a reasonable doubt. In Chokrs trial, the jury received the instruction as found in CALCRIM No. 220. Similarly, in People v. Cook (2006) 39 Cal.4th 566, the defendants jury received the standard instruction found in CALJIC No. 2.90, which was again deemed sufficient, notwithstanding the inclusion of the phrase, upon moral evidence[.] (Id.at p. 600, italics omitted.) Nothing in either opinion undermines the definition found in CALCRIM No. 220.

[3] Penal Code section 1203.03 provides: (a) In any case in which a defendant is convicted of an offense punishable by imprisonment in the state prison, the court, if it concludes that a just disposition of the case requires such diagnosis and treatment services as can be provided at a diagnostic facility . . . may order that defendant be placed temporarily in such facility for a period not to exceed 90 days . . . . (Italics added.)

[4] The sentencing court rested its selection of the upper term on the following factors: (1) Chokr ordered Alicia O. not to call the police; (2) Chokr obviously planned each of the incidents; (3) Chokrs prior convictions were numerous and of increasing seriousness; and (4) his performance on his prior grants of probation was consistently a failure.