P. v. Davis

Filed 4/18/07 P. v. Davis CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Kern County. John D. Oglesby, Judge.

Michele A. Douglass, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Michael P. Farrell, Senior Assistant Attorney General, Carlos A. Martinez and Jamie A. Scheidegger, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Defendant William David Davis got in a fight with an acquaintance over a stolen laptop computer. In the course of the fight, defendant cut his opponents arm with a pocket knife. Defendant was convicted of assault with a deadly weapon. On appeal, he contends (1) the trial court erred by instructing on flight because there was no evidence defendant fled the scene after the fight, (2) the trial court erred by failing to instruct that oral admissions should be viewed with caution, (3) one of the prior prison term enhancements must be stricken, (4) the deadly weapon enhancement must be stricken, and (5) the upper term sentence violated Blakely v. Washington (2004) 542 U.S. 296 (Blakely). We will strike one of the prior prison term enhancements and the deadly weapon enhancement. We will affirm in all other respects.

PROCEDURAL SUMMARY

On November 7, 2005, the Kern County District Attorney charged defendant with assault with a deadly weapon (Pen. Code,  245, subd. (a)(1)).^[1] The information further alleged that defendant used a deadly weapon ( 12202, subd. (b)(1)), caused great bodily injury ( 12022.7), and had served two prior prison terms ( 667.5, subd. (b)).

The jury found defendant guilty. It found the deadly weapon allegation true, but the great bodily injury allegation not true. The trial court found the prior prison term allegations true, and stayed the sentence on one of them. The court sentenced defendant to the upper term of four years, plus two one-year enhancements, for a total of six years.

FACTS

Prosecution Evidence

Defendant and Stewart Bibby lived in Boron and had known each other for about one year. They had an ongoing disagreement because Bibby believed defendant had stolen Bibbys girlfriends laptop computer. They had fought over it about six months earlier and Bibby had knocked out one of defendants teeth. Then, on October 7, 2005, at about 10:30 p.m., Bibby was attending a party at a friends house when he saw defendant. They went outside to talk and their conversation escalated into a fist fight. Each of them hit the other, then they both stopped fighting and defendant walked away. Defendant and his girlfriend yelled something as they walked down the street, but Bibby did not pay attention. Bibby walked back into his friends house.

About 15 to 20 minutes later, Bibby and a friend, Robert Spears, walked to the convenience store about two blocks away. They turned down a dirt road to take a shortcut and came upon defendant and his girlfriend, standing by a fence. Bibby again accused defendant of stealing the computer and they resumed their argument. It was completely dark and Bibby could not see whether defendant had a weapon.

Defendant swung at Bibby. Bibby raised his left arm to block the blow and received what felt like a real hard hit or a really hard punch to his left arm near his elbow. As he blocked the blow, Bibby hit defendant in the face with his right fist.^[2] Defendant stumbled backward from the blow and they walked [their] separate ways. Defendant did not turn around or confront Bibby again as he walked away.

Bibby and Spears walked back toward the house because defendant was walking toward the store and they didnt want anymore. About 20 or 30 seconds later, when they were about half way back to the house, Bibby felt blood running down his arm and saw that he had been cut. He went back to the house and his friend photographed the injury then wrapped it up. Bibby went to the fire station and was told he would need stitches. At the hospital, Bibby received 16 stitches. At the time of trial, he still had a scar but suffered no limitations in the use of his arm.

Deputy Sheriff Patrick McNeal was on patrol that night. He was dispatched to the convenience store in response to an anonymous call regarding the incident. He found defendant there and spoke to him. Defendant told McNeal he had been in a fight with Bibby. McNeal searched him and found a folding knife in his pant pocket. The knife was about three and one-half inches long.

When McNeal left, he was flagged down by the fire department. He went to the fire station to talk to Bibby, who told him he had been cut that night.

Defense Evidence

Defendant testified he had gone to collect tools and some money from a friend who lived next door to the party. Defendant saw his brother-in-law, Trent VanGelder, outside at the party with Bibby and Spears. VanGelder was Bibbys good friend. Defendant decided he would try to call a truce with Bibby because he was tired of the problems between them. They had been in several fights because Bibby believed defendant had stolen his girlfriends computer.

When defendant told Bibby he wanted a truce, Spears said, [I]ts not going to happen, just leave. Then VanGelder blind-sided defendant and he fell to the ground unconscious. When he regained consciousness a few seconds later, he was being kicked in the stomach and the head and he fell unconscious again. The next thing he remembered was being dragged through the desert by his girlfriend. He faded in and out of consciousness so much that he could not recall much. The only thing he remembered clearly was his girlfriend telling him she was bleeding badly from the mouth.

Defendant testified he was carrying a knife that night but he never took it out, other than to give it to McNeal, and he did not stab Bibby with it.

On cross-examination, defendant stated he did not remember speaking with McNeal that night and he did not remember McNeals taking his pocket knife. He did not remember going to the convenience store. He did not remember getting any medical treatment, but he later found a Tehachapi Health Care wristband on his wrist. He also did not remember going to the jail.

Rebuttal Evidence

McNeal testified that he first contacted defendant and his girlfriend outside the convenience store at about 11:00 p.m. Defendants physical appearance was normal except for a little bruising on his left eye. He was standing up, conscious, cognizant and alert. Other than being agitated, he seemed fine. When he and McNeal engaged in a conversation, defendants responses were rational and reasonable. McNeal asked defendant what had happened and defendant responded that he had been jumped by Bibby because he believed Bibby was trying to run Boron. Defendant said they had been having confrontations for a while.

For his own safety, McNeal asked defendant if he could search him for weapons. Defendant agreed and McNeal found the knife in his pocket.

McNeal asked defendant if he wanted to make a report concerning the attack. He declined, saying he didnt want to go to court and didnt want to get in any more trouble.

McNeal left and was flagged down by the fire department. He went to the fire station, which was about one and one-half blocks from the convenience store, and found Bibby with a bandage around his left arm. After speaking to Bibby, McNeal contacted defendant walking down the street. At that time, McNeal placed defendant under arrest.

McNeal read defendant his Miranda^[3]rights and defendant stated that he wanted to speak to McNeal. McNeal again asked him what happened that night. Defendant said he was jumped. McNeal asked if he pulled out his knife during the fight. Defendant responded, [W]hat knife[?] Then he paused and said, Im frazzled. McNeal asked him what he meant by that. Defendant said, I didnt slice anybody. McNeal asked him why he said that when McNeal had not asked whether he had cut anyone. At that point, defendant stopped talking to McNeal and the interview ended. McNeal took defendant to the hospital to make sure he had no major injuries, then he took him to the jail. During the hour and one-half McNeal spent with defendant, he did not mention being unconscious or receiving any head injuries.

DISCUSSION

I. Flight Instruction

Defendant contends the trial court erred by instructing the jury on flight (CALJIC No. 2.52) because there was no evidence he fled the scene after the fight.^[4] He argues the only evidence of his departure from the scene was testimony that he stumbled backwards and he and Bibby went their separate ways. We conclude any error was harmless.

A flight instruction is proper where the evidence shows the defendant departed the crime scene under circumstances suggesting his movement was motivated by a consciousness of guilt. (People v. Smithey (1999) 20 Cal.4th 936, 982; People v. Bradford (1997) 14 Cal.4th 1005, 1055.) [F]light requires neither the physical act of running nor the reaching of a far-away haven. [Citation.] Flight manifestly does require, however, a purpose to avoid being observed or arrested. [Citations.] Mere return to familiar environs from the scene of an alleged crime does not warrant an inference of consciousness of guilt [citations], but the circumstances of departure from the crime scene may sometimes do so. [Citation.] (People v. Bradford, supra, at p. 1055.)

We see no evidence to support a flight instruction, as the evidence showed only that defendant and Bibby walked their separate ways after the fight. There was also no substantial evidence defendant was trying to avoid being observed or found by the police. After the fight, he and his girlfriend were found outside the convenience store.

Assuming the flight instruction was error, we discern no prejudice from it. (People v. Visciotti (1992) 2 Cal.4th 1, 61 [harmless error analysis applicable to omitted flight instruction].) The instruction did not assume that flight was established, but instead permitted the jury to make that factual determination and to decide what weight to accord it. [Citation.] (People v. Carter (2005) 36 Cal.4th 1114, 1182-1183, fn. omitted; People v. Visciotti, supra, 2 Cal.4th at p. 61 [instruction did not assume that flight was established, leaving that factual determination and its significance to the jury]; see People v. Mendoza (2000) 24 Cal.4th 130, 181 [flight instruction does not unconstitutionally reduce prosecutions burden of proof].) Moreover, the jury was instructed to disregard any instruction that applies to facts determined by you not to exist. (CALJIC No. 17.31; People v. Barnett (1998) 17 Cal.4th 1044, 1153-1154 [CALJIC No. 17.31 sufficiently advises jury to disregard inapplicable instructions, including CALJIC No. 2.52].) Finally, overwhelming evidence established defendants guilt. The only evidence contradicting Bibbys testimony that defendant cut him during the fight was defendants denial that he cut Bibby with the knife or even took his knife out during the fight. That testimony, however, was contradicted by defendant himself when he testified he remembered nothing about that evening except being dragged through the desert by his girlfriend. Defendants contradictory testimony, and selective memory, can be seen only as self-serving. For all of these reasons, any error in the giving of the instruction was harmless.

II. Cautionary Instruction

Defendant contends the trial court erred by failing to instruct the jury sua sponte that oral admissions made by the defendant are to be viewed with caution (CALJIC No. 2.71).^[5] He argues that the prosecutor relied on defendants admissions during argument to demonstrate a consciousness of guilt and to urge the jury to reject defendants defense. He further points out that his admissions were reported by a hostile witness.

Defendant fails to specifically identify which statements he believes were admissions, but he directs us to the portion of the record covering McNeals testimony of his interview with defendant. We assume he is referring to defendants statements, [W]hat knife[?] and I didnt slice anybody.^[6] We also assume he is referring to the prosecutors argument that defendants statement that he didnt slice anybody revealed a consciousness of guilt because McNeal had not yet mentioned anything about Bibbys being cut. The prosecutor argued:

In fact, when arrested, what the defendant piped up with was, oh, I never sliced anybody, referring to the knife the officer found on his person, when the officer had never told him anything about someone having been cut, sliced, stabbed or assaulted with the knife. Thats consciousness of guilt right there when he made that statement to Deputy McNeal, personal knowledge that hadnt been imported to him yet. He knew darn well what he had done. He knew that he had finally bested Mr. Bibby and had attacked him with a knife.

An admission is a statement that does not by itself acknowledge guilt but, when coupled with other evidence, tends to show guilt. (CALJIC No. 2.71.) Even an exculpatory statement proven to be false may show defendants consciousness of guilt. The falsity of the statement may be shown by either the accuseds own statements or by other admissible evidence, such as personal observations by the arresting officers. (People v. Mendoza (1987) 192 Cal.App.3d 667, 672-673, 675-676.)
If there is evidence of an oral admission by a criminal defendant, the trial court has the sua sponte duty to instruct the jury that it should view the evidence of any such admission with caution. (People v. Carpenter (1997) 15 Cal.4th 312, 392-393; People v. Bunyard (1988) 45 Cal.3d 1189, 1224.) The purpose of the cautionary instruction is to assist the jury in determining if the statement was in fact made. [Citation.] (People v. Carpenter, supra, at p. 393.) It is designed to counter the dangers and abuses inherent in verbal admissions -- that it is often impossible to contradict the testimony of a witness who is lying or twisting the facts. (People v. Frye (1998) 18 Cal.4th 894, 959.) An error in failing to give the instruction is harmless if no reasonable probability exists that appellant would have obtained a more favorable verdict had the instruction been given. (People v. Carpenter, supra, at p. 393.) In assessing the effect of a failure to instruct, we review the record for any evidence that the statement was not made, was fabricated, or was inaccurately remembered or reported. (Ibid.)

Here, defendants statements, [W]hat knife[?] and I didnt slice anybody, taken together with evidence that McNeal had not yet mentioned that Bibby had been cut or sliced, could be seen as tending to prove defendants guilt because he denied having a knife yet knew enough about the crime to deny having committed it. The statements could also be seen, however, as a simple denial to the question of whether he pulled out a knife, and the implication he used it, during the fight with Bibby. In that case, the denial was facially exculpatory and its effect would have been emasculated by an instruction to view the statements with caution. In such a case, the trial court is not required to instruct with CALJIC No. 2.71. (People v. Flores (1992) 7 Cal.App.4th 1350, 1363-1364.)

Nevertheless, even assuming the statements amounted to an admission and the trial court was obligated to instruct with CALJIC No. 2.71, we find no prejudice resulting from its omission. There was no evidence that defendant did not make the statements; defendant testified only that he did not remember speaking to McNeal at all. As we have explained, the evidence of defendants guilt was overwhelming. Other than defendants contradictory testimony noted previously, the evidence establishing that defendant cut Bibbys arm during the fight was uncontroverted. In addition, the jury was fully instructed on evaluating the credibility of witnesses with CALJIC Nos. 2.03 (Consciousness of Guilt -- Falsehood), 2.20 (Believability of Witness), 2.21.1 (Discrepancies in Testimony), 2.21.2 (Witness Willfully False), 2.22 (Weighing Conflicting Testimony), 2.23 (Believability of Witness -- Conviction of a Felony), and 2.27 (Sufficiency of Testimony of One Witness).

We conclude defendant has not carried his burden of showing a reasonable probability that he would have obtained a more favorable verdict had the instruction been given. (People v. Carpenter, supra, 15 Cal.4th at p. 393.) Any error in its omission was harmless.

III. Prior Prison Term Enhancement

Defendant contends, and the People concede, that the trial court erred by imposing two (and staying one) prior prison term enhancements because he served the two prior prison terms concurrently. (People v. Cardenas (1987) 192 Cal.App.3d 51, 55-56 [if sentences on multiple, prior convictions are served concurrently, then there is only one prior prison term for enhancement purposes].) We therefore strike the stayed prior prison term.

IV. Deadly Weapon Enhancement

Defendant also contends, and the People again concede, that the trial court erred by imposing a deadly weapon enhancement ( 12022, subd. (b)(1)) because use of a deadly weapon was an element of the offense of assault with a deadly weapon ( 245, subd. (a)(1)). (People v. McGee (1993) 15 Cal.App.4th 107, 110 [a conviction under  245, subd. (a)(1) cannot be enhanced pursuant to section 12022, subdivision (b)].) Accordingly, we strike the enhancement.

V. Upper Term Sentence

Lastly, defendant contends the trial court committed error under Blakely, supra, 542 U.S. 296, when it imposed the upper term sentence. We address his argument in light of the recent United States Supreme Court decision in Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856] (Cunningham).

In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi ), a five-justice majority of the United States Supreme Court held, Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. (Id. at p. 490.)

Blakely held that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations.] (Blakely, supra, 542 U.S. at p. 303, italics omitted.) Blakely describes three types of facts that a sentencing judge can properly use to impose an aggravated sentence: (a) the fact of a prior conviction (Blakely, supra, 542 U.S. at p. 301); (b) facts reflected in the jury verdict (id. at p. 303, italics omitted); and (c) facts admitted by the defendant (ibid., italics omitted).

Cunningham held that aggravating factors, other than a prior conviction, used to impose an upper term for a criminal offense must be submitted to a jury and proved beyond a reasonable doubt, according to the requirements of Apprendi and Blakely. (Cunningham, supra, 549 U.S. at p. __, 127 S.Ct. 856.) As a result, Californias Determinate Sentencing Law violates a defendants Sixth and Fourteenth Amendment right to a jury trial to the extent that it permits a trial court to impose an upper term based on facts found by the court rather than by a jury beyond a reasonable doubt. (Id. at p. __.)

In this case, the trial court reached its decision to impose the upper term based on the following findings: (1) defendants prior convictions as an adult were numerous and significant in that he had suffered two prior convictions for weapons-related offenses, (2) defendants prior performance on misdemeanor and felony probation was unsatisfactory, and (3) defendant had two active bench warrants when the crime was committed. The court therefore considered aggravating factors that were both acceptable and apparently unacceptable under Cunningham.

Consistent with Cunningham, the sentencing court imposed the upper term based upon the fact of defendants prior convictions, among other circumstances in aggravation. Under well-established California law, only a single aggravating factor is required to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728-729.) Here, the sentencing court properly considered defendants prior convictions. Assuming the courts consideration of the other factors was error under Cunningham, the error was harmless under either Chapman v. California (1967) 386 U.S. 18, 24 (harmless beyond a reasonable doubt) or People v. Watson (1956) 46 Cal.2d 818, 836 (reasonable probability error did not affect outcome).

DISPOSITION

The deadly weapon enhancement ( 12202, subd. (b)(1) and the stayed prior prison term enhancement ( 667.5, subd. (b)) are stricken. The superior court shall modify the abstract of judgment to reflect these changes. As modified, the judgment is affirmed in all other respects.

_____________________

Kane, J.

WE CONCUR:

_____________________

Cornell, Acting P.J.

_____________________

Dawson, J.

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^[1] All statutory references are to the Penal Code unless otherwise noted.

^[2] Bibby testified he was not armed with any weapons.

^[3]Miranda v. Arizona (1966) 384 U.S. 436.

^[4] The court instructed as follows: The flight of a person immediately after the commission of a crime or after he is accused of a crime is not sufficient in itself to establish his guilt, but its a fact which, if proved, may be considered by you in the light of all other proved facts in deciding whether a defendant is guilty or not guilty. The weight to which this circumstance is entitled is a matter for you to decide.

^[5] CALJIC No 2.71 provides: An admission is a statement made by [a] [the] defendant which does not by itself acknowledge [his] [her] guilt of the crime[s] for which the defendant is on trial, but which statement tends to prove [his] [her] guilt when considered with the rest of the evidence. [] You are the exclusive judges as to whether the defendant made an admission, and if so, whether that statement is true in whole or in part. [] [Evidence of an oral admission of [a] [the] defendant not made in court should be viewed with caution.]

^[6] The testimony to which defendant directs us follows:

[PROSECUTOR:] Did you specifically ask him what happened with him and Stewart Bibby? [] []

[MCNEAL:] I read him his Miranda rights. I asked him if I could ask him about the fight between him and Stewart Bibby, and he said, yes. I asked him what happened. His answer to that was, []I got jumped.[]

[PROSECUTOR:] Did you ask the defendant any questions about the knife you found with him?

[MCNEAL:] I asked him if he had pulled the knife -- the knife I found -- out during the fight.

[PROSECUTOR:] What did he respond?

[MCNEAL:] He said, [W]hat knife[?]

[PROSECUTOR:] Then what happened?

[MCNEAL:] He said -- after he said, [W]hat knife[?], he paused and said, Im frazzled. [] I asked him what he meant by that, and then he said, I didnt slice anybody.

[PROSECUTOR:] Those were his exact words, I did not slice anybody?

[MCNEAL:] I didnt slice anybody.

[PROSECUTOR:] Prior to this, had you made any statement to him that someone had been cut, stabbed, sliced or injured with a knife at all?

[MCNEAL:] No, I did not.

[PROSECUTOR:] What did you say to him after that?

[MCNEAL:] I asked him why he said that, since I didnt ask him if he cut anyone. [Fn. contd.]

[PROSECUTOR:] Did you receive any further response?

[MCNEAL:] He stopped talking to me, and I ended my interview.