P. v. McMillan

Filed 10/17/07 P. v. McMillan CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. Michael A. Knish, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Jean Ballantine, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Gil Gonzalez, Supervising Deputy Attorney General, and Teresa Torreblanca and Kelley Johnson, Deputy Attorneys General, for Plaintiff and Respondent.

Defendant and appellant William Israel McMillan appeals after he was convicted of assault upon Armond Hagan. Defendant argues that the trial court erred in excluding evidence that a third party may have committed the crime. He also contends that he was improperly sentenced to the aggravated term in violation of his right to a trial by jury under Cunningham v. California (2006) 546 U.S. 1169 [126 S.Ct. 1329, 164 L.Ed.2d 47] (Cunningham) and Blakely v. Washington (2004) 542 U.S. 296 [124 S.Ct. 2531, 159 L.Ed.2d 403]. We affirm.

FACTS

1.

PRIOR OFFENSE

In December 2000, Krista Cisneros and Armond Hagan were at a doughnut shop when they saw two men standing outside, wearing jackets with black hoods. Hagan knew one of the men was named Kevin. Cisneros knew the other man, later identified as defendant, as the brother of two of her friends.

Hagan went into the barbershop next door to the doughnut shop. Cisneros left in her car and returned some time later. When Cisneros returned, she encountered police officers who were investigating a robbery that had just taken place at the doughnut store. Cisneros and Hagan told police about the two men they had seen outside the shop a short while earlier. Hagan told police he recognized Kevin, and Cisneros reported that she recognized the other man (defendant) and would find out his name. Cisneros did later report that the name of the person she recognized was Michael McMillan and she identified defendants picture as the person she knew as Michael McMillan. Hagan identified a photograph of Kevin Williams as the person he knew as Kevin.

Neither Hagan nor Cisneros testified against defendant or Williams in any court proceeding concerning the robbery. A police officer testifying at defendants preliminary hearing for the doughnut store robbery did testify, however, that Cisneros had identified defendant as one of the suspects. Defendant was in the courtroom when the police officer gave this testimony.

In May 2001, defendant pleaded guilty to the doughnut store robbery. He was granted probation and ordered to serve 365 days in the county jail as a term of probation. Defendant did not receive a state prison sentence for that offense.

2.

CURRENT OFFENSE

On August 9, 2004, Cisneros and Hagan were in an alleyway behind an apartment building with one of Hagans friends. While they were talking with Hagans friend, a red or burgundy car drove up, stopped, and two men got out. Neither Cisneros nor Hagan recognized either of the men.

The man who got out on the drivers side was large and heavy-set; the passenger was thinner. The passenger said to Hagan, Do you remember me, homey? Hagan said he did not. The man said, You put me in prison three years ago, and hit Hagan in the face. Both men hit and punched Hagan repeatedly. They dragged Hagan into the middle of the alleyway and beat Hagan. Cisneros tried to intervene, unsuccessfully. Eventually, Hagan managed to get up, get away and run through the apartment complex. The two assailants gave chase.

Cisneros got into her car and drove away, looking for Hagan. She found him, let him take her car, received his car keys, and went back to the alleyway to retrieve Hagans car. As Cisneros started to drive away in Hagans car, the assailants blocked her path with their car. One of the men, whom Cisneros now recognized as defendant, walked up, pointed a gun at Cisneros and threatened to shoot her. He then said, Bitch, you have a pass today, and Cisneros was able to get away by driving around the vehicle blocking the alleyway.

The next day, Hagan and Cisneros reported the attack to police. They both identified defendant as the person who assaulted Hagan.

As a result of these events, defendant was charged with assault with a firearm (threatening Cisneros with the gun), assault by means likely to produce great bodily injury (attack on Hagan), and felon in possession of a firearm. Defendant was acquitted on the first and third (firearm) offenses, but was convicted of the assault on Hagan. Defendant also admitted that he had a prior strike conviction. The court sentenced defendant to the aggravated term of four years for the assault conviction, doubled to eight years as a second strike under the Three Strikes law.

Defendant now appeals.

DISCUSSION

1.

THE THIRD PARTY CULPABILITY EVIDENCE

WAS PROPERLY EXCLUDED

At trial, defendant wished to present third-party evidence on the issues of identification and motive. That is, one of the men who assaulted Hagan said he did so because Hagan had put me in prison three years ago. The robbery codefendant, Kevin Williams, had been sentenced to state prison, but defendant had not. Thus, defendant wanted to argue, Hagan had perhaps misidentified defendant on the theory that Williams, but not defendant, would have made such a statement.

In pretrial discussions, the parties had reached a tentative stipulation that Williams had pleaded guilty to the 2000 doughnut store robbery and been sentenced to state prison, whereas defendant had pleaded guilty but not been sentenced to state prison. The prosecutor reconsidered that position, however, and moved to exclude the third-party evidence. The trial court ruled that, if defendant could show any independent evidence that Kevin Williams was at the scene of the present assault, then the third-party evidence might be admitted.

To be admissible, third-party evidence need not show a substantial proof of a probability that the third person committed the act; it need only be capable of raising a reasonable doubt of defendants guilt. (People v. Yeoman (2003) 31 Cal.4th 93, 140, quoting People v. Hall (1986) 41 Cal.3d 826, 833.) On the other hand, the court is not required to admit all evidence, no matter how remote, to show that a possible third party might be guilty. [E]vidence of mere motive or opportunity to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendants guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime. (Id. at pp. 140-141, again citing Hall, supra.)

Here, the evidence defendant sought to admit hinged on the remark of one of the assailants that, You put me in prison three years ago. Defendants theory was that that remark necessarily pertained to and clearly identified Williams, and not defendant, because [t]he man who said those words must have been the man who was put in prison, i.e., Kevin Williams, not [defendant]. No such necessity proceeds from the assailants remark, however.

The victim, Hagan, testified not only that the assailant said, You put me in prison three years ago, but also at another point that You put me in jail three years ago. (Italics added.) While there is a legal difference between a county jail and state prison, not everyone is familiar with that distinction. Non-lawyers often use the terms prison and jail interchangeably. Hagan used both words in describing what the assailant had said. It is impossible to know precisely what word the assailant used. Moreover, even though defendant was not sentenced to state prison, he was incarcerated (albeit in the county jail) three years ago, because of Hagans and Cisneross identification of him as one of the suspects in the doughnut store robbery. The assailants remark therefore did not, contrary to defendants contention, specifically identify Williams but not defendant.

Otherwise, the evidence was that both Cisneros and Hagan had known both Williams and defendant from the 2000 doughnut store robbery. Both Cisneros and Hagan identified defendant as one of the assailants in this case; neither they nor the other witness at the scene, Hagans friend, identified Williams as one of the assailants. There was no evidence that Williams, and not defendant, was present in the alleyway at the time of the assault.

Evidence of third-party culpability, to be admissible, must be of the character to raise a reasonable doubt as to the defendants guilt. Here, of course, there were two assailants. Even if Williams had been placed at the scene, his presence would not exclude defendant as one of the assailants, and thus would not operate to raise a reasonable doubt as to defendants guilt.

Defendant makes much of evidence that one of the assailants was tall and thin (the passenger), while the driver was perhaps shorter (although he had been described by one witness as 61 in height) and heavier, perhaps 200 to 250 pounds. At the time of the 2000 doughnut shop robbery, apparently, both defendant and Williams were described as having a similar (tall and thin) body shape or appearance. Defense counsel never offered to proffer any evidence at all, however, as to Williamss appearance at the time of the assault, three years later.

The third-party culpability evidence did not specifically identify Williams as the perpetrator and, even if it had, it did not raise a reasonable doubt as to defendants guilt of the charged offense. The trial court properly exercised its discretion to exclude the third-party evidence.

2.

THE SENTENCE WAS PROPER

The range of punishments for defendants conviction of assault by means of force likely to produce great bodily injury (Pen. Code,  245, subd. (a)(1)) was two, three, or four years. The trial court selected the upper term, based on its finding of aggravating factors that the crime involved great violence and great bodily injury, defendants acts disclosed a high degree of cruelty, viciousness and callousness, defendant induced another person to participate in the crime, the present crime involved violence against a witness to a prior serious felony, defendants crimes as an adult were of increasing seriousness, defendant was on probation when he committed the offense, and his prior performance on probation was unsatisfactory.

After selecting the upper term, the court doubled the four-year sentence to eight years as a second strike.

Defendant now urges that, under Cunningham, supra, 546 U.S. 1169 [127 S.Ct. 856], the trial courts selection of the upper term was improper because it was based, at least in part, on matters not adjudicated by a jury. We reject defendants claim.

As the California Supreme Court has recently clarified in People v. Black (2007) 41 Cal.4th 799 (Black II), [u]nder California's determinate sentencing system, the existence of a single aggravating circumstance is legally sufficient to make the defendant eligible for the upper term. (Id. at p. 813, citing People v. Osband (1996) 13 Cal.4th 622, 728.) Therefore, the Black II court continued, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not legally entitled to the middle term sentence, and the upper term sentence is the statutory maximum. (Black II, supra, 41 Cal.4th at p. 813.)

Here, of course, there were no circumstances in mitigation, only aggravating factors. Some related to defendants recidivism, as to which no jury finding need be made. Others fell within the scope of the facts necessarily found by the jury. Having suffered a prior conviction is, in itself, sufficient justification for imposing the maximum sentence in a range. (Jones v. United States (1999) 526 U.S. 227 [119 S.Ct. 1215, 143 L.Ed.2d 311]; People v. Steele (2000) 83 Cal.App.4th 212, 226.) Defendant here had suffered a prior conviction, and this alone supported his aggravated sentence.

Moreover, the alleged denial of a right to jury trial on aggravating circumstances is reviewed under the harmless error standard of Chapman v.California (1967) 386 U.S. 18, 24 [87 S.Ct. 824, 828, 17 L.Ed.2d 705]. (People v. Sandoval 41 Cal.4th 825, 828.) If a reviewing court concludes, beyond a reasonable doubt, that the jury, applying the beyond-a-reasonable-doubt standard, unquestionably would have found true at least a single aggravating circumstance had it been submitted to the jury, the Sixth Amendment error properly may be found harmless. (Id. at pp. 839-841.) Here, there was at least one valid aggravating circumstance, regardless of those defendant complains were not found true by a jury. He was therefore eligible for aggravated sentencing, and the aggravated sentence was his statutory maximum.

Imposition of the aggravated sentence was proper under the circumstances of this case.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKINSTER

J.

We concur:

/s/ HOLLENHORST

Acting P. J.

/s/ RICHLI

J.

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