P. v. Gregory

Filed 3/20/07 P. v. Gregory CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Eric Sion Gregory of inflicting corporal injury resulting in a traumatic condition on a cohabitant (Pen. Code, 273.5, subd. (a); undesignated section references are to this code) and false imprisonment by violence or menace ( 236). The jury also found true allegations that defendant inflicted great bodily injury under circumstances involving domestic violence in the commission of both offenses ( 12022.7, subd. (e)), and used a dangerous and deadly weapon (a crutch) in inflicting corporal injury upon his cohabitant ( 12022, subd. (b)(1)). In a bifurcated proceeding, the trial court found defendant had been convicted of a prior serious felony (robbery) ( 667, subd. (a)).

The trial court denied defendants motion to strike the prior conviction and sentenced him to an aggregate term of 17 years four months in state prison, consisting of three years (the middle term) for inflicting corporal injury, doubled for the prior strike conviction ( 667, subd. (e)(1), 1170.12, subd. (c)(1)), plus four years (the middle term) for the domestic violence enhancement, plus one year for the weapons enhancement, eight months (1/3 the middle term) for false imprisonment, doubled for the prior strike conviction, to run consecutively with the sentence imposed for inflicting corporal injury, four years for the domestic violence enhancement was stayed pursuant to section 654. Finally, defendant was given five years for the prior serious felony conviction. ( 667, subd. (a).)

Defendant appeals, contending (1) there is insufficient evidence to support the jurys findings that he was the attacker and that a weapon [was used] in the beating^[1]and (2) the trial court abused its discretion in failing to strike his prior conviction. We shall order the trial court to correct an error in the abstract of judgment and affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

At the time of the incident, defendant and the victim, D.J., were living together and engaged to be married. They had known one another since 1991.

On June 17, 2004, they shared an apartment located on Las Palmas Avenue in Sacramento. They argued that day because D.J. believed defendant was seeing another woman. D.J. left the apartment because she was getting too upset. When she returned, she was unable to locate her apartment key, so she broke a window to get in. After retrieving some personal effects, she left. Defendant was not at the apartment during this time.

D.J. returned to the apartment the following day, June 18, to measure the window so that it could be repaired. Before arriving at the apartment, D.J. smoked marijuana and drank a small bottle of Hennessey, which she described as [a] little bit bigger than the size you would get on an airplane. She drank the bottle over a three to four hour period and finished it just prior to arriving at the apartment.

When she arrived, she knocked on the door. Defendant answered and stood at the door and talked to her. They discussed the window, and she told defendant it was her birthday. When defendant invited D.J. inside, she hesitated because her car was running and her nephew was waiting in the car. Defendant assured her it [would] be all right and told her he had a surprise for her, so she went in. Once inside, defendant told her to shut the door. After she did so, defendant struck her in the face, temporarily blinding her and nearly knocking her unconscious. Defendant then led her into the bedroom and beat her with an object as she lay on the bed. She could not identify the object because her vision was still impaired from the initial blow. When she got up from the bed, defendant forced her back down and beat her some more. She was beaten on her face, chest and legs.

D.J. eventually told defendant someone was outside waiting in her car. Defendant asked who it was and she told him it was her nephew. Defendant told D.J. he was going to send her nephew on his way and left the apartment. After defendant left, D.J. got up and attempted to find the door in order to leave. Before she could find it defendant returned and twice attempted to strangle her with a cord.

Thereafter, a rug or tablecloth was placed over D.J.s head and she was driven away in her car by defendant. During the drive, defendant stopped and picked up a woman. At that point, D.J. began to regain her sight. At some point, she asked for something to eat. Defendant said he was tired of nigger bitches that didnt act right[,] but then he took her to get a hamburger.

Defendant drove D.J. to a Motel 6 on Watt Avenue. D.J. recognized the motel as being some place [she] had stayed at before with [defendant]. After arriving at the motel, she complained of being in pain. Defendant put some pills in her mouth and she went to sleep. She was not sure how long she was at the motel.

D.J. next recalled waking up in her bed at her apartment on June 20. She was in bed and defendant was laying next to her. When she awoke, she was in pain and had difficulty breathing. She called 911 and asked them to help [her]. After she hung up, she unplugged the telephone because she thought defendant would be angry if he knew she had called 911. Defendant eventually plugged-in the telephone and the 911 operator was on the line. A recording of that call was played for the jury. D.J. can be heard in the background stating: He hit me and Im bleeding. After speaking to the 911 operator, defendant began yelling and cursing at D.J. and took his fingers and flicked them in [her face] . . . which hurt.

Sacramento Police Officers Mark Wilhite and Randy Lozya arrived at the apartment at approximately 1:30 p.m. They knocked on the door multiple times and announced their presence. After quite awhile, defendant answered the door. After receiving multiple commands to sit on the front step in front of the apartment, defendant complied. As Officer Wilhite entered the apartment, he saw D.J. coming from the back room. When he saw the whites of her eyes were blood red, he immediately called for the fire department to enter. He also observed cuts and lacerations on D.J.s face, bruising and swelling around both her eyes and the side of her jaw and multiple bruises on one of her arms. D.J. was shaking, crying, holding her stomach, bending over a lot and it was quite obvious from her demeanor that she was in pain.

She told Officer Wilhite that things started happening between she and defendant on June 17th. She explained that she could not enter the apartment because defendant had taken her keys. She said defendant had beaten [her] awful with a crutch and hands and feet on June 18 and again with a crutch on June 20th.

Officers found a broken crutch on the bedroom floor that appeared to have blood on it. Officer Wilhite did not see any blood on defendants clothing or notice any injuries on his hands, however, he did not specifically look at defendants hands.

D.J. was taken away on a stretcher and brought to the UC Davis Medical Center, where she remained for five days. In addition to having surgery on [her] lungs, she received stitches on her face and staples on her head as a result of her injuries.

D.J. acknowledged having poor eyesight and said she was not wearing her glasses on June 18, 2004.

When D.J. was assaulted on June 18th, she possessed $600 in cash. When the police came to the apartment on June 20th, she no longer had it.

D.J. returned to the apartment on July 3, 2004. Thereafter, the apartment was broken into approximately three times, and a VCR, television, grocery cart and jewelry were taken.

Sometime after returning to her apartment on July 3, D.J. called 911 and told the operator she wanted to drop the charges that had been brought against defendant. She was directed to contact the district attorneys office, which in turn, directed her to contact a detective with the Sacramento Police Department. Later that month, defendant spoke to a detective, whose name she could not recall. D.J. told the detective she wasnt sure if [defendant] was the person that assaulted her. She explained that after returning to the apartment on July 3, and before contacting 911, she heard some people talking outside her bedroom window -- two male voices and one female voice. In particular, she heard one of the people say, [n]ext time you get ahold [sic] of that B, you dont just choke her, you snap her neck. She also heard the people discussing $600 in cash that they had partied with and how D.J. must have more money and [defendant] is in jail. D.J. did not see the people she heard talking; however, she knew defendant was not among them because he was in custody at the time.

According to D.J., the detective told her that it would be best for [her] to stick with [her] [original] statement because [the detective] knows once you been with a person, you should recognize that person even if you are blind. The detective also explained that D.J. could be charged with making a false statement.

The defense called Detective Darlene Killip of the Sacramento Police Departments Domestic Violence and Family Abuse unit. Detective Killip testified that she contacted D.J. for the purpose of conducting a follow up for the district attorneys office. The two spoke over the telephone on July 29, 2004. During that call, D.J. told Detective Killip that when she arrived at the apartment on June 18th she heard a male voice she believed was defendants. She also said she was hit immediately when she turned around after getting inside the apartment. She explained it was dark and she could not see the person inside.

D.J. told Detective Killip that after returning to the apartment on July 3, she heard voices outside of her window . . . talking about how much money that they had stolen and about that they should have snapped [D.J.s] neck, and thats the reason [D.J.] believed [defendant] did not assault her. She never said she knew for a fact defendant did not assault her. According to Detective Killip, [s]he kept saying that she believes it wasnt him, she thinks it wasnt him, it may not be him, because she heard these voices.

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE

When the sufficiency of the evidence is challenged on appeal, we apply the familiar substantial evidence rule. We review the whole record in a light most favorable to the judgment to determine whether it contains substantial evidence, i.e., evidence that is credible and of solid value, from which a rational trier of fact could find beyond a reasonable doubt that

the accused committed the offense. (In re Ryan D. (2002) 100 Cal.App.4th 854, 859; see People v. Johnson (1980) 26 Cal.3d 557, 578.)

Defendant contends substantial evidence does not support the jurys finding that he was D.J.s attacker. He asserts that [D.J.s] intoxicated state, along with her poor eyesight, the darkness of the apartment and her motivation to punish . . . defendant for her suspicion that he had cheated on her led D.J. initially to finger defendant as her attacker. We are not persuaded.

At trial, D.J. specifically identified defendant as the person who assaulted her on June 18th. Even assuming she did not see defendant prior to being hit in the face, she heard his voice. The jury could have reasonably concluded D.J. could accurately identify defendants voice based on her testimony that she lived with him, was engaged to be married to him and had known him for over a decade. Moreover, D.J. began to regain her vision as she was being driven to the motel and recalled defendant being with her at the motel and when she woke up at their apartment on June 20th.

Defendant also notes that Officer Wilhite did not observe any blood on defendants clothing or any injuries on his hands on June 20th. This argument assumes the assaults were such that defendant would have had blood on his clothes; however, defendant fails to point to any evidence supporting this assumption. Even assuming the assaults were such that defendant would have had blood on his clothes, the jury could have reasonably concluded defendant simply changed his clothes. Over two days had passed since the initial assault and defendant knew in advance that law enforcement officers were on their way to the apartment on June 20th since he had spoken to the 911 operator.

With respect to defendants hands, Officer Wilhite testified that he did not observe any injuries to defendants hands -- not that there were no such injuries. Indeed, he explained that he never specifically looked at [defendants] hands. Thus, the jury could have reasonably concluded that to the extent the assaults would have caused visible injuries to the assailants hands, Officer Wilhite did not see signs of injury because he did not look at defendants hands.

While D.J. told Detective Killip she was unsure whether defendant was her attacker, the jury reasonably could have found her statement to Officer Wilhite and testimony at trial more persuasive.

By arguing that D.J.s identification of him as the attacker was unreliable, defendant asks us to reweigh the evidence and ignore the factual and credibility determinations made by the jury. It is well settled that our role is not to reweigh the evidence upon a claim of insufficiency, but simply to determine whether the record discloses substantial evidence to support an inference of guilt. (People v. Perry (1972) 7 Cal.3d 756, 785; People v. Johnson, supra, 26 Cal.3d at pp. 575-579.) There is ample evidence to support the jurys finding that defendant was D.J.s attacker.

Defendant also argues evidence of the use of a weapon in the beating was not established beyond a reasonable doubt. He argues that D.J. speculates . . . she was beaten with a crutch and there were no tests on the crutch found at the home of defendant to determine whether the substance Wilhite saw on the crutch was blood or whether the blood on the crutch belonged to [D.J.] We disagree.

While D.J. testified she was unable to identify the object used to beat her on June 18th, she told Officer Wilhite defendant beat her with a crutch on June 20th. There is no evidence that her vision was severely impaired on that date. Thus, her statement that defendant beat her with a crutch on June 20th is not accurately described as speculation. Moreover, her statement was supported by the recovery of a broken crutch that appeared to have blood on it next to the bed. The fact that the blood-like substance was not scientifically proven to be D.J.s blood does not negate the other evidence, in particular D.J.s statement that defendant beat her with a crutch on June 20th.

II. REFUSAL TO STRIKE PRIOR CONVICTION

Defendant argues the trial court abused its discretion in failing to strike his prior conviction for robbery. We review this argument using settled standards and reject defendants argument.

A trial court has the discretion to strike a prior serious felony conviction for purposes of sentencing only if the

defendant falls outside the spirit of the Three Strikes law.

( 1385; People v. Williams (1998) 17 Cal.4th 148, 161; People v. Superior Court (1996) (Romero) 13 Cal.4th 497, 529-530.) In deciding whether to do so, the court must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (People v. Williams, supra, at p. 161; People v. Garcia (1999) 20 Cal.4th 490, 500 [the underlying purpose of striking prior conviction allegations is the avoidance of unjust sentences].)

The trial courts failure to . . . strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374.) In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, [t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citations.] Second, a decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at pp. 376-377.)

Thus, only in an extraordinary case--where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ would the failure to strike be an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at p. 378.)

Defendant argues [t]he trial courts decision to consider [his] prior felony as a strike . . . was arbitrary because the conviction occurred over a decade ago, and since that time, [he] has had only one conviction, a misdemeanor battery in 2003. Defendants argument both understates and misstates the evidence in the record. His prior 1993 conviction for robbery consisted of stealing a car from a stranger at gunpoint. In 1996, he pled no contest to vehicle theft. In 2003, he pled no contest to misdemeanor battery after punching his neighbor in the face, knocking her to the ground, then punching her ten more times. After defendant was released from prison on the robbery conviction, he violated his parole and was returned to prison on seven different occasions between 1996 and 2001.

Defendant manifestly is not outside the letter or spirit of the three strikes law. The trial court did not abuse its discretion in refusing to strike defendants prior serious felony conviction.

Finally, we note an error in the abstract of judgment filed December 10, 2004. Section 1 erroneously indicates defendants one year and four month sentence for false imprisonment was stayed pursuant to section 654. We will order the abstract corrected accordingly.

DISPOSITION

The judgment is affirmed. The trial court is ordered to prepare an amended abstract of judgment showing that the false imprisonment count is not stayed. The trial court is further ordered to forward a certified copy of the corrected abstract to the Department of Corrections and Rehabilitation.

MORRISON , J.

We concur:

DAVIS, Acting P.J.

BUTZ , J.

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^[1] In a section heading in his brief, defendant asserts his conviction for false imprisonment is not supported by substantial evidence. His brief, however, is devoid of any factual or legal analysis supporting this argument. His analysis is limited to the evidence identifying him as the attacker and the weapons enhancement. We shall address only those arguments analyzed in the brief.