P. v. Hall

Filed 7/25/07 P. v. Hall CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from a judgment of the Superior Court of Los Angeles County,

Kelvin D. Filer, Judge. Affirmed.

Sharon Fleming, 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, Scott A. Taryle and Zee Rodriguez, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Panchita Hall appeals from the judgment entered following a court trial in which she was convicted of felony prostitution. We affirm.^[1]

FACTUAL AND PROCEDURAL BACKGROUND

1. The Information

An undercover vice officer arrested Hall for prostitution on April 14, 2005. An information filed on May 25, 2005 charged Hall in count 1 with felony prostitution with a prior conviction for prostitution after having tested positive for the HIV virus (Pen. Code,  647, subd. (b), 647f, 1202.6 (felony prostitution)). In count 2 the information charged Hall with unlawful sex while infected with the HIV virus (Health & Saf. Code, 120291, subd. (a). As to both counts the information specially alleged Hall had previously served three separate terms for felony (prostitution). (Pen. Code, 667.5, subd. (b).)

As a result of this case (LASC Case no. TA078757), Hall also faced allegations she violated the terms of her probation in Los Angeles Superior Court Case no. BA264250, in which she had been convicted of possessing a controlled substance (Health & Saf. Code, 11350) and had received formal probation.

2. The Trial and Probation Violation Hearing

Before trial commenced, defense counsel stipulated to a factual basis for each of her three prior felony prostitution convictions. Hall waived her right to a jury trial. The parties agreed the probation violation hearing would be held concurrently with the court trial.

a. Prosecution Evidence

On April 16, 2005, undercover Los Angeles Police Department Officer Manuel Sanchez drove up to a corner where Hall was standing and made eye contact with her. She approached his car and spoke with Sanchez through the drivers side window. Officer Sanchez asked Hall in Spanish if she spoke Spanish, and she replied, in Spanish, A little bit. Officer Sanchez asked her in English if she had a room and Hall said, No. They discussed getting a room at the motel near where Hall had been standing. Officer Sanchez indicated he had $40 and asked how much you? [sic] Hall answered they would discuss it in the room. Hall stepped into Officer Sanchezs car, and he drove to the motel.

The motel had no vacancies and the manager suggested they try the motel across the street. Hall got back into the car with Officer Sanchez. He said to her, $10 for the room, and $30 for you. Hall replied, Yeah, and then patted Officer Sanchezs chest in the area where a badge would be if he had been wearing one. Hall also asked if he were a police officer, and Officer Sanchez said, No. After a brief discussion, Hall agreed to engage in sexual intercourse and oral copulation with Officer Sanchez. As Officer Sanchez drove Hall to the second motel, he signaled his partner officer to arrest Hall for soliciting prostitution.

When Hall was being taken into custody, she yelled at Officer Sanchez, I had condoms. Hall had not previously told Officer Sanchez she had condoms or was infected with the HIV virus. Police found two condoms in Halls purse.

The parties stipulated Hall had been advised by her parole officer and AIDs Health Care Foundation personnel that she was HIV positive and could transmit the disease to another person by engaging in unprotected sex.

b. Defense Evidence

Hall testified in her own defense she became infected with the HIV virus in 1996 when she was raped. On April 16, 2005, after taking the bus Hall walked to a friends house. The friend was not at home so Hall decided to walk to the store when a van drove up, and the driver, who turned out to be Officer Sanchez, spoke to her in Spanish. Hall told him in Spanish that she only spoke a little Spanish. She understood he was offering her a ride so she climbed into the van. Officer Sanchez drove less than one block, turned into a motel, and told Hall in English, I have $40. When she asked whether Officer Sanchez were a police officer, he put a smile on his face like I got you. A patrol car drove up and Hall was arrested. According to Hall, she and Officer Sanchez only went to one motel and never discussed money or having sex. Hall denied patting Officer Sanchezs chest or touching him at all. In her purse Hall had two condoms that she had picked up from her drug counselor the day before her arrest. Hall never intended to infect anyone with the HIV virus.

On cross-examination, Hall admitted having learned she was HIV positive when she was tested for AIDS in 1996 following a prostitution arrest. Hall denied telling Officer Sanchez that she had condoms.

c. Disputed Impeachment Evidence

During trial, defense counsel attempted to use evidence of Officer Sanchezs prior discipline by the Los Angeles Police Department to impeach his credibility.

[Defense counsel]: You testified that Ms. Hall told you or spontaneously stated she had condoms; is that correct?

[Officer Sanchez]: Yes, thats correct.

[Defense counsel]: And you would agree that part of your job as a police officer is obviously to report whatever it is that occurred; is that correct?

[Officer Sanchez]: Thats correct.

[Defense counsel]: And in this case, you did prepare a report; is that right?

[Officer Sanchez]: Thats correct.

[Defense counsel]: But in this report, you make no mention of the fact that she said she had condoms; is that correct?

[Officer Sanchez]: Thats correct. And I also didnt mention she had any either and she did.

[Defense counsel]: So what is it that jars your memory in this case that she had condoms?

[Officer Sanchez]: Well, she kind of yelled it to me.

[Defense counsel]: But is there a reason why you didnt put that in the report?

[Officer Sanchez]: I forgot.

[Defense counsel]: Now, you would agree, would you not, that thats an important fact?

[Officer Sanchez]: Not really. Thats not what I was charging her with. I was charging her with prostitution. I was not charging her with having condoms.

[Defense counsel]: Well, you understand, do you not, that you have an obligation as an officer when you make an arrest to put all the pertinent facts in the report?

[Officer Sanchez]: Thats correct.

[Defense counsel]: And thats how you have been trained?

[Officer Sanchez]: Thats correct.

[Defense counsel]: In fact, do you remember on June 8th of 2000 being suspended for not properly reporting facts?

[Officer Sanchez]: Thats correct.

[Prosecutor]: Im going to object. Motion to strike; failure of discovery; and relevance.

[The court]: Sustained on relevancy grounds.

[Defense counsel]: Well, failure to properly report facts, was suspended for five days without pay.

[Prosecutor]: Objection. Motion to strike.

[The court]: Its irrelevant.

3. Verdict and Sentence

The court found the People had proven Hall guilty of committing felony prostitution beyond a reasonable doubt as charged in count 1 based on Officer Sanchezs consistent and credible testimony, as opposed to Halls impeached and incredible testimony. However, the court acquitted Hall of count 2 after finding the People had failed to prove Hall had intended to infect the undercover officer with the HIV virus. The court also found true the prior prison term enhancement allegations.

At sentencing the trial court considered Halls pre- and post-conviction probation reports and identified three aggravating facts -- Hall was on probation when she committed the offense (see former Cal.Rules of Court, rule 4.421, subd. (b)(4)),^[2] her prior performance on probation was unsatisfactory (former rule 4.421(b)(5)), and her prior convictions for misdemeanor prostitution were numerous (25) (see former rule 4.421(b)(2)) -- and no mitigating facts (Cf. Pen. Code,  1170, subd. (b)).^[3] The trial court announced its tentative sentence was the three-year upper term for felony prostitution and invited argument by counsel.

Defense counsel objected to the imposition of the upper term without a jury determination of the aggravating facts pursuant to Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403] (Blakely). Defense counsel argued Hall should be sentenced to the presumptive middle term of one year and ordered placed in a residential treatment facility. In response, the trial court noted it had sat as the trier of fact in this case and had searched in vain for applicable mitigating facts.

Following argument, the trial court sentenced Hall to an aggregate state prison term of six years: the upper term for felony prostitution plus one year for each of the three prior prison term enhancements. The court found Hall in violation of her probation in Los Angeles Superior Court Case no. BA264250 and imposed a concurrent middle term of two years.

DISCUSSION

1. The Disputed Impeachment Evidence Was Properly Excluded

Hall contends the trial court committed reversible error by not allowing Officer Sanchez to be impeached with evidence he failed to properly report facts, for which he was disciplined by the Los Angeles Police Department. Specifically Hall argues the nature of Officer Sanchezs purported misconduct was relevant to his veracity, and, because it involved moral turpitude, it was admissible for impeachment purposes. Hall asserts the exclusion was prejudicial because the case turned on whether the trial court believed Officer Sanchezs testimony and the court noted the undercover officer had not been impeached.^[4]

Evidence having any tendency in reason to prove or disprove any disputed fact is relevant. (Evid. Code,  210; People v. Harris (2005) 37 Cal.4th 310, 337.) Witness credibility is always an issue, and evidence of past misconduct is presumptively admissible if it reflects moral turpitude, thereby suggesting a willingness to lie. (See People v. Rodriguez (1999) 20 Cal.4th 1, 9; People v. Wheeler (1992) 4 Cal.4th 284, 295; People v. Castro (1985) 38 Cal.3d 301, 314-315.) A trial courts exercise of discretion in admitting or excluding evidence will not be disturbed except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice [citation]. (People v. Rodriguez, supra, 20 Cal.4th at pp. 9-10.)

Had Officer Sanchez falsely reported facts or lied in an earlier police report, as maintained by the defense, he would have engaged in misconduct involving moral turpitude. However, no evidence was presented as to the substance of the alleged misconduct. At no time did defense counsel make an offer of proof as to what the misconduct entailed, focusing only on the type of discipline Officer Sanchez subsequently received. Nor did defense counsel request an Evidence Code section 402 hearing to provide evidence of the purported misconduct. In the absence of an offer of proof or evidentiary hearing, the trial court had no way of assessing whether the alleged misconduct involved moral turpitude or was otherwise relevant in this case. The proponent of the proffered evidence has the burden of establishing its relevance (Evid. Code,  403, subd. (a)), and the evidence is properly excluded when the proponent fails to make an adequate offer of proof regarding its relevance or admissibility. (Ibid.; People v. Morrison (2004) 34 Cal.4th 698, 724.)

Even if the trial court had erroneously excluded the impeachment evidence, Hall suffered no prejudice. The defense theory for count 1, felony prostitution, was that Officer Sanchezs version of the encounter was fabricated. Defense counsel vigorously cross-examined Officer Sanchez and argued to the court inconsistencies in the undercover officers testimony. Officer Norma Vargas, whom defense counsel characterized in closing argument as the only witness whose testimony was consistent corroborated Officer Sanchezs testimony that Hall yelled, I had condoms, following her arrest. Finally, Officer Sanchez provided an explanation of his failure to include Halls statement in his report and readily acknowledged his prior misconduct and administrative discipline.

For count 2, the charge of attempted unlawful sex while infected with the HIV virus, the defense theory was there was no proof Hall had the requisite specific intent or had engaged in an ineffectual act toward the commission of the crime. In closing argument, defense counsel relied on Halls spontaneous statement and the fact condoms were found in her possession as negating the specific intent to engage in unprotected sex with the undercover officer or to transmit the HIV virus. The trial court acquitted Hall of count 2. Thus, there is no possibility the trial courts ruling affected the verdict, whether harmless error is judged under the state standard for erroneous evidentiary rulings,People v. Watson (1956) 46 Cal.2d 818, 836), or the elevated standard that would be required if the ruling had completely prevented Hall from presenting a defense (Crane v. Kentucky (1986) 476 U.S. 683, 691 [106 S.Ct. 2142, 90 L.Ed.2d 636]; Chapman v. California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 17 L.Ed.2d 705] (Chapman)).

2. IfImposition of the Upper Term for Felony Prostitution Constituted Error Under Cunningham v. California (2007) [127 S.Ct. 856, 166 L.Ed.2d 856] (Cunningham), it Was Harmless

The trial court sentenced Hall to the upper term of three years for felony prostitution. We asked the parties to file supplemental briefs addressing the application of Cunningham to the sentence imposed in this case. Hall argues the sentence violated her rights under the federal constitution because the facts relied on by the trial court are not within what is commonly known as the Almendarez-Torres exception (Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247 [118 S.Ct. 1219, 140 L.Ed.2d 350]) to the Apprendi rule (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [120 S.Ct. 2348, 147 L.Ed.2d 435]) and because her jury trial waiver did not encompass sentencing facts or the obligation to find them beyond a reasonable doubt.

The Sixth and Fourteenth Amendments require that any fact increasing the penalty for a crime beyond the statutory maximum (other than a prior conviction) must be submitted to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 490.) The relevant statutory maximum is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. (Blakely, supra, 542 U.S at pp. 303-304.)

In Cunningham, the United States Supreme Court reaffirmed Blakely, Apprendi, and other cases, overruled Black, and held Californias determinate sentencing law (DSL) violates a defendants right to a jury trial guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution to the extent it authorizes the trial judge to find facts (other than a prior conviction) that expose a defendant to an upper term sentence by a preponderance of the evidence. This Court has repeatedly held that, under the Sixth Amendment, any fact that exposes a defendant to a greater potential sentence must be found by a jury, not a judge, and established beyond a reasonable doubt, not merely by a preponderance of the evidence. (Cunningham, 127 S.Ct. at pp. 863-864.) Although Cunningham invalidated a significant part of the DSL, the Supreme Court also reaffirmed its prior holdings that the defendant does not have a constitutional right to a jury trial, for sentencing purposes, on whether the defendant has suffered a prior conviction; the trial court may increase the penalty for a crime based upon the defendants prior conviction without submitting that question to a jury. (Cunningham, supra, 127 S.Ct. at p. 868; see Almendarez-Torres, supra, 523 U.S. at pp. 239-247; Blakely, supra, 542 U.S. at p. 301; Apprendi, supra, 530 U.S. at pp. 488, 490.) Thus, the Supreme Court did not disturb the Almendarez-Torres exception to the Apprendi rule that a sentence in excess of the statutory minimum may be imposed based on a judges finding the defendant had a prior conviction.

Before Cunningham, the Almendarez-Torres exception was construed by California appellate courts to apply not only to the fact of the prior convictions but also to other issues relating to the defendants recidivism, including the defendants status as a probationer or parolee at the time the current offense was committed and the existence of numerous or increasingly serious prior convictions.^[5] (See, e.g., People v. Thomas (2001) 91 Cal.App.4th 212, 221-222 [[C]ourts have held that no jury trial right exists on matters involving the more broadly framed issue of recidivism]; see also People v. McGee (2006) 38 Cal.4th 682, 706-707(McGee) [N]umerous state and federal court decisions have interpreted the Almendarez-Torres exception more broadly than defendant urges here, and have concluded that Apprendi does not preclude a court from making sentencing determinations related to a defendants recidivism].)

We need not reach Halls argument that only the narrowest scope of Apprendi can be applied here. Even assuming the court erred, any error was harmless beyond a reasonable doubt. (Washington v.Recuenco (2006) 548 U.S. __ [126 S.Ct. 2546, 165 L.Ed.2d 466] [Apprendi/Blakely error not structural error requiring automatic reversal]; see People v. Sengpadychith (2001) 26 Cal.4th 316, 327 [Apprendi error reviewable under the harmless error standard of Chapman, supra, 386 U.S. 18, 24.) The fact Hall was on probation at the time of this most recent offense was admitted by defense counsel. Additionally, the probation reports provide Halls probation status as well as a full description of her criminal history including probation and parole violations and prior convictions. Halls numerous misdemeanor prostitution convictions the report listed over 20 of them and consistently poor performance on probation were facts not disputed by Hall either at the sentencing hearing or in her appellate briefs. We are confident that considering the unrelenting record of Halls convictions and probation violations a jury would necessarily have found, beyond a reasonable doubt, the existence of the aggravating facts identified by the trial court. Any sentencing error, therefore, is harmless.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ZELON, J.

We concur:

JOHNSON, Acting P. J. WOODS, J.

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^[1]Pursuant to People v. Mooc (2001) 26 Cal.4th 1216, Hall has requested that we examine the transcript of the in camera hearing conducted by the trial court after it determined Hall had demonstrated good cause to discover information in the undercover officers personnel and administrative records pertaining to illegal searches and seizures, dishonest, false arrest, fabrication of evidence and falsification of police reports. (Evid. Code, 1043, 1045; Pitchess v. Superior Court (1974) 11 Cal.3d 531.) At the in camera proceedings the trial court appropriately inquired whether the custodian had produced all potentially responsive documents and described thoroughly in the sealed transcript of the hearing the documents produced by the custodian of records and reviewed by the court. (Mooc, at p. 1229.) We have reviewed the sealed record of the proceedings and conclude the trial court appropriately exercised its discretion in finding none of the incidents reviewed was relevant to Halls case and, therefore, disclosure of material from the undercover officers personnel files was not appropriate. (See ibid.)

^[2]Applicable at the time of Halls sentencing was the version of rule 4.421 in effect until January 1, 2007.

^[3]Applicable at the time of Halls sentencing was the version of Penal Code section 1170 in effect until the post-Cunningham amendment (Cunningham v. California (2007) ___ 549 ___ [127 S.Ct. 856, 166 L.Ed.2d 856]) that, inter alia, substituted choice of the appropriate term shall rest with the sound discretion of the court for court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. (Stats. 2004, ch. 747, 1; cf. Stats. 2007, ch. 3,  3, effective March 30, 2007.)

^[4] Hall also asserts the ruling violated her state and federal rights to present a defense, to confrontation, and to due process. She failed to interpose an objection on these grounds at trial. We assume, without deciding, that these claims have been preserved for appeal (see People v. Yeoman (2003) 31 Cal.4th 93, 117-118, 133) and conclude there was no error of any kind.

^[5] The question whether this is a proper interpretation of the Almendarez-Torres exception, as set forth in Cunningham, is currently pending before the California Supreme Court. (People v.Towne, review granted July 14, 2004, S125677, supp. briefing ordered, Feb. 7, 2007 [parties to address the following issue, among others, Do Cunningham v. California,supra, and Almendarez-Torres v. United States (1998) 523 U.S. 224, 239-247, permit the trial judge to sentence defendant to the upper term based on any or all of the following aggravating factors, without submitting them to a jury: the defendants prior convictions as an adult are numerous and of increasing seriousness; the defendant has served a prior prison term; the defendant was on parole when the crime was committed; the defendants prior performance on probation or parole was unsatisfactory (California Rules of Court, Rule 4.421, subds. (b)(2) - (b)(5))?]; People v. Hernandez, review granted Feb. 7, 2007, S148974; People v. Pardo, review granted Feb. 7, 2007, S148914.)