P. v. Dombrowski

Filed 9/27/06 P. v. Dombrowski CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Steven Dombrowski appeals the judgment entered after a jury convicted him of assault with a deadly weapon (Pen. Code^[1], § 245, subd. (a)(1)). The jury also found true the allegations that Dombrowski had two prior serious or violent felony convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and two prior serious felony convictions (§ 667, subd. (a)(1)), and had served seven prior prison terms (§ 667.5, subd. (b)). The trial court struck one of Dombrowski's prior strike convictions pursuant to section 1385. He was sentenced to 14 years in state prison, consisting of the low term of two years on the assault conviction, doubled pursuant to the three strikes law, plus five years on each of the two prior serious felony convictions. The court also imposed one year for each of the prior prison term enhancements, and ordered the seven years to run concurrent with his sentence on the assault conviction. Dombrowski contends (1) the evidence is insufficient to support his conviction; (2) the court abused its discretion in denying his motion for a new trial on the ground of prosecutorial misconduct; and (3) sentencing error. We remand for resentencing on the prior prison term findings. Otherwise, we affirm.

FACTS AND PROCEDURAL HISTORY

On the afternoon of July 12, 2005, Richard Lynch was sitting in his van in a parking lot near Artesia and Lakewood Boulevards in Bellflower when he saw Dombrowski force Velvet Seidner up against the side of a delivery truck. Dombrowski pulled a knife out of his back pocket and "got right up in [Seidner's] face." Dombrowski put his left hand on Seidner's right shoulder, held the knife within inches of her throat, and yelled, "I'm going to kill you, you fucking bitch." Lynch called 911 on his cell phone and reported the attack. In the meantime, Lynch saw Dombrowski step back from Seidner and cut his left hand with the knife. Dombrowski screamed and threw the knife on the ground. Seidner broke free and ran away. Dombrowski retrieved the knife and ran after her.

The police soon arrived and found Dombrowski and Seidner in a grassy area. Dombrowski was on his knees and straddling Seidner as she laid on the ground. Both of them were covered in blood and were yelling at each other. The deputies ordered Dombrowski to get up and back away from her with his hands up. Dombrowski first complied, then lunged at Seidner, causing one of the deputies to use a taser on him.

The knife was found a few feet away and placed on a block wall while Dombrowski was being treated for his injuries. When the officers later went to retrieve the knife, Seidner told the police that she had thrown it in a nearby trash can "because she didn't want anybody else to get hurt and it was bloody." The knife was found in the trash can.

Seidner testified that Dombrowski had cut his hand with her knife while cutting straps off of backpacks that they had tied to a shopping cart. She denied that the knife had been in Dombrowski's back pocket, that he put it to her neck, and that he had threatened to kill her. She also claimed that she was sitting on the ground with a backpack in her lap when the deputies arrived and that Dombrowski was standing in front of her. She denied telling a deputy that she had run because she feared that Dombrowski would hurt her. She admitted telling the deputy that Dombrowski was her fiancé and that she did not want him prosecuted.

In rebuttal, Deputy Anthony Gruener, who interviewed Seidner at the hospital after the incident, testified that Seidner told him that she ran when Dombrowski retrieved the knife because she was afraid he would hurt her. She also told him that she did not want to prosecute Dombrowski.

DISCUSSION

Sufficiency of the Evidence

Dombrowski contends that Lynch's testimony was insufficient to support his conviction for assault with a deadly weapon. According to him, Lynch did not testify to actually witnessing an assault, and admitted that he did not have a direct view of the incident.

We review the record in the light most favorable to the judgment to determine whether there is any substantial evidence supporting the conviction. (People v. Osband (1996) 13 Cal.4th 622, 690.) Lynch's testimony is sufficient to support the jury finding that Dombrowski assaulted Seidner with a deadly weapon. "'". . .". . ."All that is required to sustain a conviction of assault with a deadly weapon is proof that there was an assault, that it was with a deadly weapon, and that the defendant intended to commit a violent injury on another."' [Citation.]" (People v. Tran (1996) 47 Cal.App.4th 253, 261.) It is well settled that pointing or holding a knife at a victim, combined with a command or a threat, constitutes an assault with a deadly weapon. (See, e.g., People v. McCoy (1944) 25 Cal.2d 177, 190; People v. Vorbach (1984) 151 Cal.App.3d 425, 429.) Lynch testified that he saw Dombrowski hold a knife to Seidner's neck and threaten to kill her. Although Lynch observed the incident from a distance and Dombrowski had his back to him, Lynch's testimony was unequivocal regarding his observations. Viewed in the light most favorable to the judgment, this evidence was sufficient to support Dombrowski's conviction for assault with a deadly weapon.

Alleged Prosecutorial Misconduct

Dombrowski also contends his conviction must be reversed due to prosecutorial misconduct. "A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury. Furthermore, and particularly pertinent here, when the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Morales (2001) 25 Cal.4th 34, 44.)

Dombrowski takes issue, as he did below, with the prosecutor's comment in his rebuttal argument that "[t]his [sic] has to be a reason for you to say that the defendant is not guilty." At the conclusion of the prosecutor's rebuttal, Dombrowski's attorney asserted that the prosecutor had committed prejudicial misconduct by stating "there has to be a reason to believe the defendant is not guilty." Counsel argued that the statement was "a complete misstatement of the law" because "[i]t's [the prosecution's ] burden of proof to find him guilty beyond a reasonable doubt," and asked the court to admonish the jury and give a corrective instruction. The court denied the request, stating, "I don't think it rises to that level . . . ." Later at the sentencing hearing, counsel reasserted the prosecutorial misconduct claim in an oral motion for a new trial, which was denied.

Even assuming that the jury understood the prosecutor as stating that there has to be a reason to believe that Dombrowski was not guilty--as opposed to the recorded statement that this has to be a reason to find him not guilty--this isolated

remark, considered in context, merely conveyed to the jury that any doubt precluding a conviction must be reasonable. "We presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate in an attempt to persuade." (People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8.) The jury was properly instructed on the burden of proof and that "if anything concerning the law is [sic] stated by the attorneys conflicts with the instructions I'm giving you right now, you must ignore what they say and follow the instructions as I am giving them to you." Accordingly, any ambiguity regarding the burden of proof created by the prosecutor's comment would have been harmless.

Moreover, in adjudicating claims of prosecutorial misconduct, we "must not only weigh the impact of the prosecutor's remarks, but must also take into account defense counsel's opening salvo. Thus the import of the evaluation has been that if the prosecutor's remarks were 'invited,' and did no more than respond substantially in order to 'right the scale,' such comments would not warrant reversing a conviction." (United States v. Young (1985) 470 U.S. 1, 12-13, fn. omitted.) Here, defense counsel disparaged the prosecution witnesses by labeling Lynch a "liar" and the police officers "biased." Under the circumstances, the prosecutor's purported comment that "th[ere] has to be a reason for you to say that the defendant is not guilty" was proper rebuttal even if it was ambiguous on the issues of reasonable doubt and the burden of proof.

People v. Hill (1998) 17 Cal.4th 800, does not compel a different conclusion. In Hill, the Supreme Court concluded that the prosecutor's comment that "'[t]here must be some evidence from which there is a reason for a doubt . . .'" amounted to prejudicial misconduct. (Id., at p. 831.) In reaching that conclusion, the court reasoned that "[the prosecutor's] comments are somewhat ambiguous. [The prosecutor], however, committed misconduct insofar as her statements could reasonably be interpreted as suggesting to the jury she did not have the burden of proving every element of the crimes charged beyond a reasonable doubt. [Citations.] Further, to the extent [the

prosecutor] was claiming there must be some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the law, for the jury may simply not be persuaded by the prosecution's evidence. (Cf. CALJIC No. 2.61 (6th ed. 1996 bound vol.) ['the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge'].) On the other hand, [the prosecutor] may simply have been exhorting the jury to consider the evidence presented, and not attorney argument, before making up its mind. Although the question arguably is close, we conclude it is reasonably likely [the prosecutor's] comments, taken in context, were understood by the jury to mean defendant had the burden of producing evidence to demonstrate a reasonable doubt of his guilt." (Id., at pp. 831-832.)

Here, by contrast, the prosecutor's statement that "th[ere] has to be a reason for you to say that the defendant is not guilty" did not have any tendency to suggest that the prosecution did not have the burden of proving every element of the offense. Moreover, while the Supreme Court in Hill found error in the remark that "'[t]here must be some evidence from which there is a reason for a doubt," the court did not take issue with the prosecutor's immediately preceding remark that "'. . . you have to have a reason for this doubt. . . .'" (People v. Hill, supra, 17 Cal.4th at p. 831.) That remark is similar to the one at issue here. Moreover, the question in Hill was deemed "close" and the court ultimately found error because of the cumulative prejudice resulting from multiple acts of misconduct by the prosecutor in that case. (Id., at p. 832.) Here, the prosecutor's isolated comment, when viewed in context, does not give rise to a finding of misconduct. Even if it did, Dombrowski has made no showing the error would have been prejudicial.

Sentencing Error

Dombrowski also contends the court erred in sentencing him on two of his seven prior prison term enhancements, and the People concede the point. Because the

court could not impose both a five-year prior serious felony enhancement and a prior prison term enhancement for a single conviction (see People v. Jones (1993) 5 Cal.4th

1142, 1152-1153), the one-year enhancements imposed for the two cases for which Dombrowski received five-year prior serious felony enhancements must be stricken.

The People also concede that the court erred in imposing concurrent terms on the remaining one-year prior prison term enhancements because they must either be stricken or imposed "in addition and consecutive to" the other terms. (§ 667.5, subd. (b); People v. Tassell (1984) 36 Cal.3d 77, 90.) Although Dombrowski urges us to simply strike the enhancements in light of the court's remark that it did not "think this is an appropriate case for" the imposition of consecutive sentences, the People correctly note that the enhancements cannot be stricken without a statement of reasons in mitigation. (See People v. Savedra (1993) 15 Cal.App.4th 738, 747.) Accordingly, we shall remand for resentencing. In light of our remand, the People's request for correction of the abstract of judgment and related minute order to reflect the correct number of prison term priors is moot.

CONCLUSION

The conviction is affirmed. That portion of the sentence purporting to impose two of the seven prior conviction enhancements which were also imposed as "strike" priors is vacated. The trial court is directed to strike those enhancements. The order directing that the remaining five prior prison term conviction enhancements shall

run concurrent is also vacated. The trial court shall decide whether those enhancements are to be imposed and run consecutively, or are to be stricken

pursuant to section 1385.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

YEGAN, Acting P.J.

COFFEE, J.

Philip H. Hickok, Judge

Superior Court County of Los Angeles

______________________________

Jennifer L. Peabody, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Ana R. Duarte, Supervising Deputy Attorney General, Stephanie C. Brenan, Deputy Attorney General, for Plaintiff and Respondent.

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^[1] Statutory references are to the Penal Code, unless otherwise noted.