P. v. Garcia

Filed 10/2/07 P. v. Garcia 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 Fresno County. Gregory T. Fain, Judge.

A. M. Weisman, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Lloyd G. Carter and Brian Alvarez, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-

Joseph Albert Garca appeals from a judgment of conviction of multiple crimes against his girlfriend and her three-year-old twin sons. The court sentenced him to an aggregate determinate term of twenty years and four months consecutive to an aggregate indeterminate term of two consecutive life-with-possibility-of-parole terms consecutive to a 15-to-life term. We will affirm the judgment.

FACTUAL HISTORY

Garca, his girlfriend Dawn, and her sons Tanner and Tyler lived together in his home in Fresno. Since Garca and Dawn smoked methamphetamine heavily together every day, they ate and slept very little. Admittedly more interested in methamphetamine than in her sons, Dawn supported her habit and her children by working as an exotic dancer and prostitute.

One day when Dawn and Garca were arguing, she kicked in a door to get her purse so she could leave him. Lunging at her, he hit her in the head with his fist, she fell hard into a door frame, and her face bruised and swelled so badly that she had to stop working since she looked like the Elephant Man.

On another day when Dawn and Garca were arguing, he told her to get out of his room, so she went to the bedroom where her sons slept, lay down next to Tanner, and started to sing to him. Garca flew off the handle, grabbed Tanner, and took him out of the room. She heard Tanner scream long enough for her to say the Our Father before he stopped. After finding blood and urine on the couch, she went to see Tanner in the bathroom, where Garca was giving him a shower. She got upset when she saw Tanner shaking with fear. Garca got angry, pointed a semiautomatic firearm first at her head, and then at Tanner, and said that it would be easier if we were just all gone.

On yet another day when Garca and Dawn were arguing, she told him that he couldnt walk and chew gum at the same time. He put a semiautomatic handgun to her forehead and pulled the trigger, but the gun did not fire. He cursed, cleared the jam, and shot her in the leg right above the kneecap. She thought medical care was not an option, so she smoked a couple of bowls of methamphetamine, drank quite a few shots of liquor, and had Garca and a friend dig the bullet out of her leg with a razor. She could not walk without a crutch, so she spent a lot of time in bed afterward.

Garca routinely spanked Tanner and Tyler hard for leaving their toys out, but he focused on Tanner, who usually had bruises on his buttocks and hips and who screamed as if Garca were taking the breath out of him. For three weeks before his arrest, Garca kept Tanner and Tyler locked in a bedroom with food and a potty chair inside.

On the day before Garcas arrest, after seeing Tanner lying limp in his arms, Dawn tried to escape by grabbing Tyler and running outside, but she tripped and fell, breaking the leg Garca had shot. He carried her inside, where she overheard him talking on the phone about how a horse with a limp leg gets shot, how pigs eat the bones, and how theres no evidence. She splinted her leg with the blades of a fan.

On the day of Garcas arrest, officers arriving at his home to check on the welfare of a female and two children found Garca resisting angrily and belligerently, Dawn asking for medical help, and Tanner and Tyler lying motionless and silent despite efforts to revive them. Tanner bore injuries consistent with a forcible sexual assault.

PROCEDURAL HISTORY

Garca pled guilty to misdemeanor failure to register as a sex offender ( 290, subd. (g)(1)^[1]; count fifteen) and to three counts of misdemeanor disobedience of a court order ( 166, subd. (a)(4); counts sixteen, seventeen, and eighteen). The jury found him guilty of ten felonies and two misdemeanors. Against Tanner, the jury found him guilty of four felonies torture ( 206; count three), aggravated sexual assault of a child ( 269, subd. (a)(5); count five), infliction of corporal injury on a child with infliction of great bodily injury on a child ( 273d, subd. (a), 12022.7, subd. (d); count six), and infliction of physical pain or mental suffering on a child with infliction of great bodily injury on a child ( 273a, subd. (a), 12022.7, subd. (d); count seven). Against Dawn, the jury found him guilty of three felonies attempted murder with premeditation and deliberation and with personal use of a firearm ( 187, subd. (a), 664, 12022.5, subd. (a)(1); count one), assault with a semiautomatic firearm and with personal use of a firearm and with infliction of great bodily injury in a domestic violence case ( 245, subd. (b), 12022.5, subd. (a)(1), 12022.7, subd. (e); count two), and assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1); count thirteen). Against both Dawn and Tanner, the jury found him guilty of one felony assault with a semiautomatic firearm ( 245, subd. (b); count twelve). Against Tyler, the jury found him guilty of one felony and one misdemeanor infliction of corporal injury on a child ( 273a, subd. (a); count eleven) and battery ( 242; count ten), respectively. Finally, the jury found him guilty of one other felony and one other misdemeanor felon in possession of a firearm ( 12021, subd. (a)(1); count fourteen) and resisting an officer ( 148, subd. (a)(1); count fifteen), respectively.

ISSUES ON APPEAL

Garca challenges the denial of his motion to suppress, the constitutionality of CALCRIM No. 852, the sufficiency of the evidence of aggravated sexual abuse of a child, and the imposition of consecutive terms without jury findings on criteria affecting concurrent or consecutive sentences and of aggravated terms without jury findings on circumstances in aggravation.

DISCUSSION

1. Motion to Suppress

Garca argues that since there were no exigent circumstances and, alternatively, that since the doctrine of inevitable discovery fails to salvage the warrantless search of his home the court improperly denied his motion to suppress. The Attorney General argues the contrary.

Before trial, Garca filed a motion to suppress, and the prosecutor filed an opposition, arguing contrary positions about the warrantless search of his home. At the hearing on the motion, Garca and three police officers testified. The evidence at the hearing shows that Officer Shawn Garrison and his partner Officer William Kahle drove to Garcas home to check on the welfare of a woman whose three-year-old twins the reporting party had not seen for some time and whom her Hispanic boyfriend Joey, who had access to firearms, had shot three weeks before. In front of Garcas home, a woman told Officer Kahle that he needed to go inside because Garca had injured a woman there. She told him that she did not want to talk with him in front of Garcas home because she was afraid of him.

About a minute after Officer Garrison knocked on the door, Garca opened the door just enough to squeeze through and shut the door behind him. Officer Garrison told Garca that he and his partner were responding to a boyfriend/girlfriend disturbance call and needed to check the girlfriends welfare. Garca angrily and belligerently said he felt harassed since the police had been there the day before. He cursed and screamed even after the officer told him they would be on their way if they could talk with her.^[2] Several minutes later, he opened the door enough for the officer to see a woman sitting about three feet away, grimacing in pain, and holding two fan blades like splints around an extremely swollen and purple knee.

Several times Officer Garrison asked the woman if she was okay, but each time he did so Garca raised his voice, told him to leave, and blocked his view by stepping in front of him, and the woman, whom the officer thought was frightened, said nothing, looked away from the officer, and stared at the floor. The officer thought that Garca was intimidating her and keeping her from communicating with him, so he told Garca that he and his partner were going to force entry. Garca turned and walked into his house.

As Officer Garrison stepped into the home to make contact with the woman inside, Officer Kahle followed Garca inside as he walked away from her. Officer Garrison asked her if she needed an ambulance. She nodded affirmatively and whispered yes. He called an ambulance. As soon as Officer Kahle and Garca stepped out of the room, she whispered to Officer Garrison that he needed to cuff him up now. He asked why. She pointed to a bedroom and said he just beat the hell out of the two children in there.

Officer Garrison opened the bedroom door and saw two small children on a bed, one with huge purple bruises all over his face and stomach. Both were breathing, but neither child uttered a sound or otherwise responded to him, so he called for a code three ambulance response. As he stepped out of the bedroom, Officer Smith was just arriving. Officer Garrison instructed Officers Kahle and Smith to arrest Garca.

In his testimony at the hearing, Garca acknowledged that he tried to keep Officer Garrison from seeing and talking with Dawn. For over half an hour, he kept telling the officer to leave. After the officer put his hand on his gun and told Garca he would force his way inside if he did not let him in to talk to the female inside, Garca felt intimidated and threatened, so he submitted to his authority and let him inside without ever giving consent to enter.

The court noted that Officer Smiths report of a domestic disturbance at Garcas home the day before corroborated Officer Garrisons concern about another domestic disturbance there and that Officer Garrison inferred from Garcas belligerence and from his own inability to communicate with the woman inside that Garca was intimidating her and that she was in danger. The court found that Garca never gave his consent for the police to enter his home, that the police did not force him to open the door, and that after he opened the door Officer Garrison made observations from a place he was legally permitted to be and acted reasonably on the basis of those observations.

Additionally, the court found that there was a sufficient exigency in light of objectively reasonable circumstances for Officer Garrison to tell Garca that he and his partner were not going to leave until they discharged their duty to make a welfare check and that Officer Garrison was constitutionally entitled, first, to look inside when Garca opened the door, and, second, to enter without Garcas consent as soon as he saw an injured and intimidated woman inside. The court denied the motion.

A long line of United States Supreme Court cases has established the basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable. (Groh v. Ramirez (2004) 540 U.S. 551, 559, quoting Payton v. New York (1980) 445 U.S. 573, 586.) Nevertheless, because the ultimate touchstone of the Fourth Amendment is reasonableness, the warrant requirement is subject to certain exceptions. [Citations.] (Brigham City, Utah v. Stuart (2006) __ U.S. __ [164 L.Ed.2d 650, 657; 126 S.Ct. 1943, 1947.) One exigency obviating the requirement of a warrant is the need to assist persons who are seriously injured or threatened with such injury. The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency. [Citations.] (Id. [164 L.Ed.2d at pp. 657-658; 126 S.Ct. at p. 1947].) Accordingly, law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury. [Citations.] (Id. [164 L.Ed.2d at p. 658; 126 S.Ct. at p. 1947].)

Here, the record shows an escalation of objectively reasonable circumstances obviating the requirement of a warrant. First was the request by dispatch that Officers Garrison and Kahle check on the welfare of a woman whose three-year-old twins the reporting party had not seen for some time and whom her boyfriend had shot three weeks before. Second was the request in front of Garcas home by a woman who admitted her own fear of Garca that Officer Kahle go inside because Garca had injured a woman there. Third was Officer Garrisons observation, through the door Garca briefly opened, of an injured woman inside grimacing in pain and seemingly frightened of and intimidated by Garca. Fourth was the report by the injured woman once Officer Garrison was inside that Garca had just beat the hell out of two children in the bedroom.

On review of a denial of a motion to suppress, an appellate court defers to findings of fact, express or implied, that have the support of substantial evidence but nonetheless independently determines and then applies to those findings the relevant legal principles so as to determine whether the search was constitutionally reasonable. (People v. Weaver (2001) 26 Cal.4th 876, 924.) A ruling on a motion to suppress generally implies a finding of fact favorable to the prevailing party on each ground or theory underlying the motion. (People v. Manning (1973) 33 Cal.App.3d 586, 601-602.) If facts not in dispute establish that the search or seizure at issue was not constitutionally reasonable as a matter of law, however, an appellate court is not bound by the ruling. (People v. Medina (1972) 26 Cal.App.3d 809, 815.)

Here, substantial evidence supports the courts findings of fact that an escalation of exigent circumstances made constitutionally reasonable the search at issue. In light of our holding, we need not address the doctrine of inevitable discovery.

2. CALCRIM No. 852

Garca argues that CALCRIM No. 852 violates due process, not only by permitting the prosecution to prove uncharged domestic violence by a preponderance of the evidence but also by permitting the jury to infer guilt from predisposition evidence. The Attorney General argues the contrary.

First, we turn to the record. The information charged Garca with, inter alia, felon in possession of a firearm, for which the predicate felony was a domestic violence prior. ( 273.5, subd. (a), 12021, subd. (a)(1).) The evidence at trial showed, inter alia, that he broke his former girlfriends bedroom window, jumped inside, and threw her against a wall. The parties stipulated to Garcas domestic violence prior, the jury found him guilty as charged of felon in possession, and the court imposed and stayed sentence. ( 654.)

As modified to fit the record, the instruction that Garca challenges first defined domestic violence and then continued as follows (CALCRIM No. 852):

You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true.

If the People have not met this burden of proof, you must disregard this evidence entirely.

If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit the charged offenses involving domestic violence, as charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of the charged offenses involving domestic violence. The People must still prove each element of every charge beyond a reasonable doubt.

Do not consider this evidence for any other purpose except for the limited purpose of determining the defendants credibility.

Second, we turn to the law. Four years ago, the California Supreme Court rejected a due process assault on CALJIC No. 2.50.01, which is the sexual assault predecessor to CALJIC No. 2.50.02, which, in turn, is the domestic violence predecessor to CALCRIM No. 852. The challenges in that case were that the instruction was likely to mislead jurors not only about the supposedly limited purpose for which they may consider the prior crimes evidence but also about the prosecutions burden of proof. (People v. Reliford (2003) 29 Cal.4th 1007, 1016 (Reliford).)

Reliford noted that the instruction permits jurors to infer the defendant has a disposition to commit sex crimes from evidence the defendant has committed other sex offenses, an inference that the court characterized as reasonable. (Reliford, supra, 29 Cal.4th at p. 1012.) Reliford noted, too, that the instruction informs the jurors they may but are not required to infer from this predisposition that the defendant was likely to commit and did commit the charged offense, an inference that the court characterized as legitimate. (Id. at p. 1013.) On that foundation, Reliford rejected the argument that, having found the uncharged sex offense true by a preponderance of the evidence, jurors would rely on this alone to convict him of the charged offenses. (Ibid.)

Reliford emphasized that nothing in the instruction at issue authorized the jury to use preponderance of the evidence as the burden of proof on any issue other than the preliminary determination whether the accused committed a sexual assault prior. (Reliford, supra, 29 Cal.4th at p. 1016.) On that basis, the court rejected the notion that a jury could reasonably likely interpret the instruction to authorize a guilty verdict of a charged offense on the basis of a lowered standard of proof. (Ibid.) Since Garca fails to persuade us that CALCRIM No. 852 is outside the scope of the holding in Reliford, the doctrine of stare decisis obliges us to reject his argument. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)

3. Sufficiency of the Evidence

Characterizing the record as showing a failure of proof of the perpetrators identity, Garca argues insufficiency of the evidence of aggravated sexual abuse of a child. The Attorney General argues the contrary.

Shortly after Garcas arrest, the pediatrician who examined Tanner at Valley Childrens Hospital observed multiple bruises, especially on his forehead, cheeks, back, buttocks, anus, and scrotum, and small cuts too numerous to count, especially behind one ear, on the arch of one foot, on the scrotum, and on one of the upper inner thighs. All of the cuts were in areas that anatomy and clothing normally protect. On the basis of a ring of bruises in the rectal area, a set of bruises around the anus, and a small fissure in the anal ring, the pediatrician opined that the likely cause of that fissure, which she defined as a little cut, was a forcible attempt to open the anus.

The record shows that Tanner was a virtual prisoner. Garca put him inside a locked bedroom to control ingress and egress. He put a potty chair inside so Tanner had no need to leave the bedroom to go to the bathroom. Dawn saw Tanner only randomly. By stipulation, DNA testing showed that blood on the blade of Garcas knife was Tanners.

On a challenge to the sufficiency of the evidence, the role of an appellate court is to view the evidence in the light most favorable to the prosecution, to presume in support of the judgment the existence of every fact the trier of fact could reasonably infer from the evidence, and to determine on the basis of the entire record if a rational trier of fact could find the accused guilty beyond a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318; People v. Ochoa (1993) 6 Cal.4th 1199, 1206; People v. Johnson (1980) 26 Cal.3d 557, 576; U.S. Const., 14th Amend.; Cal. Const., art. I, 15.) Only if there is no hypothesis whatever on which sufficient substantial evidence supports the judgment can an appellate court reverse on the ground of insufficiency of the evidence. (People v. Redmond (1969) 71 Cal.2d 745, 755.) That is equally true where, as here, the prosecution relies primarily on circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.) Garcas insufficiency of the evidence argument is essentially a request that we reweigh the facts. That we cannot do. (People v. Bolin (1998) 18 Cal.4th 297, 331-333.)

4. Sentencing

Garca argues that the imposition of consecutive terms without jury findings on criteria affecting concurrent or consecutive sentences and of aggravated terms without jury findings on circumstances in aggravation violated his federal constitutional rights to trial by jury and proof beyond a reasonable doubt. The Attorney General argues that by failing to object at the time of sentencing Garca forfeited his right to appellate review and that in any event his sentence was proper.

First, we address the Attorney Generals forfeiture argument. The governing law in California at the time of Garcas sentencing was that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendants Sixth Amendment right to a jury trial. (People v. Black (2005) 35 Cal.4th 1238, 1244 (Black I), overruled by Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856, 876; 127 S.Ct. 856, 871] (Cunningham).) Had Garca requested a jury trial on circumstances in aggravation or on criteria affecting concurrent or consecutive sentences, his request clearly would have been futile, because the trial court would have been required to follow our decision in Black I and deny the request. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) Garca did not forfeit his right to appellate review.

Second, we address Garcas argument about the imposition of consecutive terms. After Cunningham, the California Supreme Court held that the imposition of consecutive terms without jury findings on criteria affecting concurrent or consecutive sentences does not offend the federal constitution. (People v. Black (2007) 41 Cal.4th 799, 820-823 (Black II).) The doctrine of stare decisis obliges us to reject his consecutive sentence argument. (Auto Equity Sales, Inc., supra, 57 Cal.2d at p. 455.)

Third, we address Garcas argument about the imposition of aggravated terms. After the parties submitted the matter solely for a tentative decision at the probation and sentencing hearing, the court characterized the ten-year aggravated term as appropriate for the enhancement for personal use of a firearm ( 12022.5, subd. (a)(1); count one), observed that Garca had not just pointed a gun or used a gun as a battering device but had actually discharged a gun that had wounded Dawn with a bullet, and incorporated by reference the probation reports documentation of his extensive criminal history. The probation report showed that, apart from his juvenile record of (1) a February 21, 1980, petty theft (Pen. Code, 488), (2) an October 28, 1980, petty theft (Pen. Code, 488), (3) a March 19, 1981, probation violation (Welf. & Inst. Code, 777), (4) a March 3, 1982, receiving stolen property (Pen. Code, 496), (5) a December 9, 1982, petty theft (Pen. Code, 488), (6) a May 17, 1983, receiving stolen property (Pen. Code, 496), (7) a December 7, 1984, resisting arrest (Pen. Code, 148), and (8) an August 28, 1985, first degree burglary (Pen. Code, 459), he had an adult record of (1) a September 7, 1990, false identification to a peace officer (Pen. Code, 148.9), (2) a June 2, 1991, driving on a suspended license (Veh. Code, 14601.1), (3) an October 11, 1991, driving on a suspended license (Veh. Code, 14601.1), (4) a July 22, 1993, annoying or molesting a child (Pen. Code, 647.6), (5) a September 26, 1998, inflicting corporal injury on a spouse or cohabitant (Pen. Code, 273.5), and (6) an August 10, 2000, making an obscene, threatening, or annoying telephone call (Pen. Code, 653m). The court found that the factors in aggravation certainly preponderate, in fact, the court does not find any factor in mitigation.

At that juncture, the court listed, inter alia, the other seven aggravated terms in the tentative decision the nine-year aggravated term for the assault with a semiautomatic firearm ( 245, subd. (b); count twelve), the nine-year aggravated term for the assault with a semiautomatic firearm and the ten-year aggravated term for the personal use of a firearm ( 245, subd. (b), 12022.5, subd. (a)(1); count two), the six-year aggravated term for the infliction of physical pain or mental suffering on a child ( 273d, subd. (a); count six), the six-year aggravated term for the infliction of corporal injury on a child and the six-year aggravated term for the infliction of great bodily injury ( 273d, subd. (a), 12022.7, subd. (d); count seven), and the four-year aggravated term on the assault by means of force likely to produce great bodily injury ( 245, subd. (a)(1); count thirteen).

Except for 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. (Cunningham, supra, 549 U.S. at p. __ [166 L.Ed.2d at p. 873; 127 S.Ct. at p. 868], quoting Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi) (italics added).) The United States Supreme Court consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction. (Cunningham, supra, [549] U.S. at p. __, [166 L.Ed.2d at p. 873] 127 S.Ct. at p. 868; Blakely [v. Washington (2004)] 542 U.S. [296,] 301; Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. United States (1998) 523 U.S. 224 [] (Almendarez-Torres). (Black II, supra, 41 Cal.4th at p. 818.) [R]ecidivism is a traditional, if not the most traditional, basis for a sentencing courts increasing an offenders sentence. (Almendarez-Torres, supra, at p. 243.) (Black II, supra, 41 Cal.4th at p. 818.) The imposition of the upper term does not infringe upon the defendants constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions. (Id. at p. 816; italics added.) That is so here.

Garca complains about the order in which the court noted the circumstances in aggravation for the enhancement for personal use of a firearm. The court discussed the way in which he used the weapon before incorporating by reference the probation reports documentation of his extensive criminal history. Those comments were all part and parcel of the tentative decision that the court did not adopt until later. On a record of horrifying cruelty with not one circumstance in mitigation, error, if any, in the order in which the court articulated the circumstances in aggravation was harmless beyond a reasonable doubt. (See Sandoval, supra, 41Cal.4th at pp. 838-839.)^[3]

DISPOSITION

The judgment is affirmed.

_____________________

Gomes, J.

WE CONCUR:

_____________________

Vartabedian, Acting P.J.

_____________________

Dawson, J.

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

^[2]Officer Mickey Smith was the officer at Garcas home the day before. He testified that after he responded to an anonymous call about male/female fighting in the front yard he spoke with both Garca and Dawn, who told him that she stepped into a hole in the front yard and hurt her leg and that Garca picked her up and carried her back into his home. Sitting on the couch with a pillow supporting her leg, she told him that she did not need medical assistance, so he left.

^[3]Our holding moots Garcas argument that the double jeopardy clause precludes a remand to adjudicate circumstances in aggravation.