P. v. Gleason

Filed 8/22/07 P. v. Gleason CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

APPEAL from a judgment of the Superior Court of Los Angeles County, Michael A. Cowell, Judge. Affirmed with directions.

Lise M. Breakey, 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, Keith H. Borjon, Supervising Deputy Attorney General, Susan Sullivan Pithey and Ana R. Duarte, Deputy Attorneys General, for Plaintiff and Respondent.

___________________________________

Jason Gleason appeals from the judgment entered following a jury trial in which he was convicted of inflicting corporal injury on a cohabitant with a further finding that he had previously been convicted of spousal battery (Pen. Code,  273.5, subds. (a), (e)(2), 243, subd. (e)(1)), making criminal threats (id.,  422), and false imprisonment (id.,  236). (Further section references are to the Penal Code.) Defendant contends that his motion for a new trial was erroneously denied and he was improperly sentenced. We vacate the sentence and remand the matter for resentencing. In all other respects, we affirm.

BACKGROUND

Los Angeles County Deputy Sheriff Frank Barragan testified at trial that while on patrol on November 21, 2005, he was flagged down by Ms. K., who appeared in distress. Ms. K. explained that she had been living with defendant since July and she needed help. Defendant was holding her in the house, . . . not allowing her to go anywhere. She was being physically abused, verbally and physically from [defendant]. Ms. K. was able to get out of the house that morning by telling defendant she needed to pick up his son, and she used the opportunity to summon help. Ms. K. further told Barragan that on November 17, defendant had thrown her to the floor and grabbed her [and] almost choked her. Defendant said he would kill Ms. K. and her family if she told the police and that he was a former United States Marine, Special Forces, trained killer. While speaking with Ms. K., Barragan noticed a bruise on her shoulder. Ms. K. told Barragan that the bruise had been caused by defendant.

Ann Burkhardt, who described herself as a close friend of Ms. K., testified that after defendant was arrested, Ms. K. and her children came to stay with Burkhardt. Burkhardt saw a bruise on Ms. K.s chest below the collarbone. Ms. K. told Burkhardt that defendant had tried to strangle her and had held her down several times.

Testifying at trial, Ms. K. recanted her accusations against defendant that she had made to both Burkhardt and Barragan. Specifically, Ms. K. denied telling Barragan that defendant had threatened or assaulted her, asserting that she stopped Barragan because she wanted help with her relationship with defendant and needed to determine whether she was in danger from any of defendants coworkers. She acknowledged that she had made accusations against defendant during her preliminary hearing testimony, such as stating that defendant would confine her to the bedroom and grab me and put me on my back most of the time to tell me that I was not going to leave and that during that time he threatened to harm Ms. K. and her children. As to this testimony, with which Ms. K. was impeached at trial, she asserted either that she did not remember or that she had testified untruthfully.

The prosecution also presented the testimony of defendants ex-wife regarding their troubled relationship, during which at least once a week defendant would either grab me by my arm or throw me to the ground or pull my hair or something to keep me from leaving. In addition, evidence was presented that defendant had been convicted of spousal battery under section 243, subdivision (e)(1), as a result of one of these incidents involving his ex-wife.

In defense, defendant testified that he had not abused his ex-wife or Ms. K. Defendants mother and sister and Ms. K.s17-year-old son and 15-year-old daughter also testified in defendants favor.

DISCUSSION

1. Motion for a New Trial

Defendant contends that the trial court erred in denying his motion for a new trial. We disagree.

Following the verdict, a probation officers report was prepared for sentencing. During an interview for the report, Ms. K. told the deputy probation officer that she stopped Barragan to get help for dealing with defendants drug use and incidents involving his ex-wife but was told no help could be provided unless she was a victim. She then said that she was a victim, even though this was not true. Ms. K. also gave a written statement to the deputy probation officer. In the statement, she said there was never any domestic violence and what she had told the police was inaccurate. Ms. K.s written statement continued:

On the day of the preliminary hearing I approached the [preliminary hearing prosecutor] District Attorney Trac[e]y Stevens in Downey Municipal Court. This was only a few minutes before I was called on the stand. I asked the District Attorney Tracey Stevens about receiving help for [defendant] and told her about the inaccuracy of my previous statements and their charges. Detective Angela Bassera was present at the time I approached the District Attorney. I also told the District Attorney [defendant] did not commit any domestic violence or threats as I had stated. At that time Detective Angela Bassera then verbally and physically harassed and threatened me, saying I was lying and was going to jail for this and pointed her finger in my face. [] I was scared by Detective Angela Bassera at this point. The District Attorney pulled Detective Angela Bassera off of me by force by grabbing her arm and telling her to stop. Detective Angela Bassera influenced my testimony at this preliminary hearing by means of force and threats of fear of imprisonment in an attempt for me to withhold true testimony which caused false testimony and false information pertaining to the alleged crimes against [defendant]. I also withheld true information and material. The threat and actions by Detective Angela Bassera were verbal and physical which induced me to give false testimony and to withhold true testimony pertaining to the alleged crimes of Defendant . . . which is a violation of Penal Code #136. The witnesses to this incident are Detective Angela Bassera, District Attorney Tracey Stevens and Anne Burkhardt. [] I had also spoken to the District Attorneys supervisor about this incident and to the next 3 District Attorneys assigned to this case. The final District Attorney assigned to this case failed to report this incident to the court or to the defendants lawyer.

Based on Ms. K.s statement, defendant filed a motion for a new trial on the ground of newly discovered evidence under section 1181, subdivision 8. In points and authorities in support of the motion, defense counsel asserted that the events described in Ms. K.s written statement were not known by him until after defendant had been found guilty. Counsel continued: Since [Ms. K.] was [the prosecutors] witness I presume he interviewed her and inquired as to the change in story and why she would do so. . . . The prosecutor treated her as a hostile witness but she did not inform us that the detective had verbally or physically threatened her before the preliminary hearing.

At the hearing on the motion for a new trial, the court noted that the basis of the motion was the claim that Ms. K. lied at the preliminary hearing. The court continued:

In this case, there is testimony as to one story that she told at the outset to the officer who stopped her in the street.

She then testified consistently with that at the preliminary hearing, more or less consistently, and then did a total recantation at the trial.

Now she claims that the reason she gave consistent testimony at the preliminary hearing was that she told the district attorney in advance that she had lied to the original officer.

She intended to bring forth that fact, but she was intimidated by Detective Angela Becerra verbally and physically harassing her by saying she was lying, she was going to go to jail, and pointing her finger at her face.

I dont know that constitutes physical harassment, but at any rate thats the claim. [] . . .

The trouble I have with this  and certainly on the face of this, this would seem to compel the court to require testimony from these witnesses, because this case was tried by the People and the conviction was secured on the premise that the prior testimony was consistent and credible and that her trial testimony was perjury predicated upon fear and intimidation.

I have no problem upholding that verdict on that basis except for now the claim by the victim or the complaining witness, that her prior preliminary hearing testimony was itself the result of intimidation.

However implausible that may seem, the court would ordinarily feel compelled to have these witnesses testify. [] . . .

Since [Ms. K.] was [the prosecutors] witness I presume he interviewed her. Technically this was his witness because he called her, but clearly this was a hostile witness for the People, and this was someone who was in [defendants] pocket, had been visiting him regularly at the jail, was really solidly a defense witness.

In other words, the real standard the court has to look to under [section] 1181 . . . is . . .

Is this information, this claim of newly discovered information, is this information which was discovered or could reasonably have been discovered at the time of trial. [] . . .

I cannot find that this was something that reasonably could not have been disclosed, given she was squarely in the defense camp at time of trial, whatever intimidation or alleged intimidation may have occurred at the preliminary hearing.

This is something that she could have and should have brought out to the defense.

You cant just simply keep having additional bites at the apple because youre unhappy with the outcome of the trial.

And that standard, not just a claim of newly discovered evidence, but newly discovered evidence that could not have reasonably [been] ascertained at the time of trial, I dont believe is met.

After further argument by defense counsel, in which he insisted that he was not aware of the threat against Ms. K. and the court responded that it had not meant to imply counsel personally knew what had happened, the court concluded: Well, the problem I have with that is if [Ms. K.] was intimidated at the time of trial I could understand that she might be reluctant to come up with a reason for her not telling the truth. But since apparently according to her testimony she has seen the light and determined to make a clean breast of it, it makes no sense whatsoever that she would say I am here, I am determined to be truthful, Im determined to let the whole truth come out, but I cant bring myself to talk about prior intimidation that no longer affects me, I am not intimidated now. I am boldly testifying to the truth, but somehow or another I cant bring my[self to] testify to admit the fact that a police officer pointed a finger in my face. [] It just doesnt rise to the level of newly discovered evidence and the court is going to den[y] the motion.

The determination of a motion for a new trial rests so completely within the courts discretion that its action will not be disturbed unless a manifest and unmistakable abuse of discretion clearly appears. [Citations.] [I]n determining whether there has been a proper exercise of discretion on such motion, each case must be judged from its own factual background. [Citation.] [] In ruling on a motion for new trial based on newly discovered evidence, the trial court considers the following factors: 1. That the evidence, and not merely its materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That it be such as to render a different result probable on a retrial of the cause; 4. That the party could not with reasonable diligence have discovered and produced it at the trial; and 5. That these facts be shown by the best evidence of which the case admits. [Citations.] [] . . . [] [T]he trial court may consider the credibility as well as materiality of the evidence in its determination [of] whether introduction of the evidence in a new trial would render a different result reasonably probable. [Citation.] (People v. Delgado (1993) 5 Cal.4th 312, 328329.)

Here, the trial court assessed the credibility of the proffered evidence and determined that, had Ms. K. been intimidated into giving false testimony at the preliminary hearing, she would have made that information available to the defense prior to trial. That she did not shows she was not credible in this regard. As such, reasoned the trial court, the evidence did not qualify as newly discovered. We find no abuse of discretion in the trial courts reasoning or ruling.

2. Sentencing

In pronouncing sentence, the court stated that in reviewing the factors in aggravation and mitigation [the court] does conclude that the defendant has engaged in violent conduct which indicates a serious danger to the victim. [] His prior convictions are serious and increasing in seriousness. [] And also inasmuch as the court intends to sentence him concurrently there certainly is no [section] 654 problem with respect to the [section] 236 false imprisonment count. [] But the court nonetheless will sentence him concurrently, but since there are other offenses there for which he could be sentenced the court concludes for those reasons the high base term is the appropriate period of confinement. Accordingly, defendant was sentenced to the high term of four years for inflicting corporal injury on a cohabitant with a prior conviction of spousal abuse (count 1), and concurrent high terms of three years each for making criminal threats (count 2) and false imprisonment (count 3).

Defendant contends that the trial court prejudicially erred under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham) in imposing the high term on count 1 and further erred in failing to stay sentence on counts 2 and 3 under section 654. We conclude that the court erred in imposing the high term and remand for resentencing, not because of Cunningham error but based on impermissible dual use of facts.

In Cunningham, the United States Supreme Court overruled People v. Black (2005) 35 Cal.4th 1238 (Black I) and held that Californias Determinate Sentencing Law violates a defendants constitutional right to a jury trial to the extent it authorizes the trial judge to find facts that expose a defendant to an upper term sentence by a preponderance of the evidence. (Cunningham, supra, 549 U.S. at p. ___ [127 S.Ct. at pp. 863864].) After the briefs in this case were filed, the California Supreme Court considered Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II) and People v. Sandoval (2007) 41 Cal.4th 825.

The Attorney General argues that defendant has forfeited the Cunningham issue by failing to raise it in the trial court. But because defendant was sentenced in 2006, before Cunningham was decided and Black I was still the law in California, we must disagree. (See People v. Sandoval, supra, 41 Cal.4th at p. 837.)

Black II teaches that 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. (Black II, supra, 41 Cal.4th at p. 816.) It further teaches that the prior conviction exception includes not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions. (Black II, at p. 819.)

But with respect to the recidivism factors in this case, the record does not establish prior convictions, as stated by the trial court. Rather, defendant had only one prior conviction, for spousal battery (section 243, subd. (e)(1)). Although that conviction might be sufficient under Black II to support the upper term, reliance on it raises the specter of an impermissible dual use of facts under California Rules of Court, rule 4.420(d). (See Black II, supra, 41 Cal.4th at pp. 808809.) We say this because the prior conviction was the basis for the allegation attached to count 1 under section 273.5, subdivision (e)(2), which was found true by the jury.^[1]

We further note that section 654, which precludes separate punishment for crimes that are incident to the same intent and objective (People v. Latimer (1993) 5 Cal.4th 1203, 1208), applies to concurrent sentences. (People v. Deloza (1998) 18 Cal.4th 585, 592.) Thus, the trial court was incorrect in stating the concurrent terms it intended to impose would resolve any section 654 problem. In addition, although the Attorney General has conceded that section 654 should be applied to the false imprisonment count, we are unclear about the basis of that concession given that Ms. K. testified to multiple instances of spousal abuse without providing specific timelines with respect to threats and false imprisonment. (The information alleged that the crimes took place between November 6 and November 20, 2005.)

Under the circumstances of this case, it is appropriate to remand for resentencing so that the trial court may properly exercise its sentencing discretion under law as set forth in People v. Sandoval, supra, 41 Cal.4th at page 846, and with the knowledge of the relationship between section 654 and concurrent sentences.

DISPOSITION

The sentence is vacated, and the matter is remanded to the trial court for resentencing. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED.

MALLANO, Acting P. J.

We concur:

VOGEL, J.

ROTHSCHILD, J.

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^[1]Section 273.5, subdivision (e)(2) provides for a sentence of two, three, or four years if, within seven years of the current conviction, the defendant has also been convicted under section 243, subdivision (e).