P. v. Pelis
Filed 10/17/07 P. v. Pelis CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. DAVID ALEXANDER PELIS, Defendant and Appellant. | D050000 (Super. Ct. No. SCD199383) |
APPEAL from a judgment of the Superior Court of San Diego County, Howard H. Shore, Judge. Affirmed.
David Alexander Pelis was sentenced to state prison for three years, eight months after being convicted of resisting an executive officer (count 2; Pen. Code,[1] 69) and true findings he had a prison prior ( 667.5, subd. (b)), a serious felony prior ( 667, subd. (a)(1)), and a strike prior ( 667, subds. (b)-(i)). Pelis contends the trial court erroneously relied on evidence relating to count 1, making a criminal threat ( 422) for which he was acquitted, when considering Pelis's motions and determining the sentence for his conviction on count 2, and reliance on these facts violated Cunningham v. California (2007) 549 U.S. ___, 127 S.Ct. 856 (Cunningham). We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Facts Relating to the Charged Offenses
On May 31, 2006, Pelis approached several homes in Linda Vista and asked the residents for clothing, money and food. After being repeatedly rebuffed, Pelis became belligerent. One of the neighbors was so frightened by Pelis that he armed himself with a shotgun. Pelis testified that he was hungry and thirsty and asked for help "in the nicest way possible." When he was rebuffed, he became angry and used profanities.
San Diego Police Officer Adam Sharki responded to the scene. Officer Sharki located and approached Pelis who assumed a fighting stance and yelled "fuck you." Officer Sharki radioed for assistance. Pelis did not respond to Officer Sharki's demands to put his hands behind his back and began walking away. He then stopped, turned toward the officer and took a fighting stance. Pelis commented to Officer Sharki, "how would you like it if I took your pants, or if I wanted your pants." Despite Officer Sharki's demands not to do so, Pelis repeatedly placed his hands in his pockets. Fearing Pelis was reaching for a weapon, Officer Sharki attempted to put a choke hold on Pelis. Pelis, a large individual, fought off the attempt.[2]
In the ensuing scuffle, Pelis attempted to force Officer Sharki into the street and
grabbed his gun belt. Other officers arrived at the scene and intervened in the fight. After hitting Pelis repeatedly with a baton to no effect, one of the officers managed to knock Pelis unconscious with a blow to the face. Pelis was treated at the hospital and taken into custody.
Pelis testified that when he first saw Officer Sharki "there was too much going on in [his] head to fully recognize that he was a police officer"; he thought he was the resident who had the shotgun. Pelis described the officer as following him as he walked away, and remembered making a comment about pants and why he wouldn't give him his pants "because no one seemed to want to help [him.]" As to the physical altercation, Pelis testified the officer seemed "very irritated." Pelis denied throwing any punches at the officer and stated he was only defending himself.
The jury acquitted Pelis of count 1 (making a criminal threat), and convicted him of count 2 (resisting an executive officer).
Sentencing
At the sentencing hearing, when considering whether to reduce the offense from a felony to a misdemeanor conviction, the court began by commenting that it had heard the evidence and that "obviously, these were serious and bizarre acts by the defendant, but also, potentially very harmful. Fortunately, there was no harm to the victims in the homes that he approached. That was background information. The count he was convicted of was the PC 69, but certainly, the contact with the officer came as a result of what the defendant had attempted to do when he approached homes in question here." The court also noted Pelis had caused the officer "great fear," thus indicating his "conduct had to be especially violent." The court also observed that given Pelis's attempt to push the officer out into the street and into traffic, "given a little more evidence, it could easily have been looked at as an attempted murder," however, the court emphasized it was "bound by the nature of the charge here." In light of the violence of the incident and Pelis's prior criminal history, which included a conviction of armed robbery, the court decided to deny Pelis's motion to reduce the offense to a misdemeanor.
When ruling on Pelis's motion to strike his prior strike, the trial court noted this was a "troubling case" and Pelis was the "aggressor with the officer." In response to the defense argument that the court should limit itself to the facts underlying the count on which Pelis was convicted, the court reiterated, "the other facts [are] factual background not because I'm not sentencing the defendant for something that he didn't do. Clearly, this is a conviction for . . . section 69 . . . ." The court noted the prior strike conviction was relatively recent, it involved a robbery with the use of a deadly weapon, Pelis was on parole when he committed the offense, and he had a record of violent criminal behavior. The court also noted it had considered other evidence, including letters, Pelis's Scholastic Aptitude Test scores, and a psychological evaluation. The court found "no basis under . . . section 1385 to strike the strikes, so [it] decline[d] to do that."
Ultimately, considering all the aggravating and mitigating factors, the court selected the lower term of 16 months, which was doubled to 32 months because of Pelis's prior strike conviction ( 667, subds. (b)-(i)), and imposed a consecutive one-year term for his prior prison conviction ( 667.5, subd. (b)). The total term was three years and eight months.
DISCUSSION
I
The Court Did Not Improperly Rely on Evidence from an Acquitted Count
Pelis contends the trial court erred by relying on evidence from count 1, making a criminal threat ( 422) for which a jury acquitted him, when considering his motions and sentencing for his section 69 conviction to count 2. We disagree.
First, the court repeatedly stated it was not basing its decision on the facts relating to the acquitted count. Since there is no contrary evidence, we must presume the court meant what it said. (See Howard v. Thrifty Drug & Discount Stores (1995) 10 Cal.4th 424, 443 [trial court presumed to have been aware of and followed applicable law].) The record shows the court's decisions to deny a reduction of the offense to a misdemeanor, to strike the prior strike or to impose a prison sentence were not based on a finding Pelis was guilty of making a terrorist threat but rather based on Pelis's violent conduct toward the officer, Pelis's prior criminal history, and his poor performance on parole.
Second, the court was not required to completely ignore all the facts prior to the officer's contact with Pelis. Had Pelis been charged solely with section 69, evidence of Pelis's belligerent manner in approaching neighborhood residents would have been admissible to explain why the officer was present and contacting Pelis.
Finally, we note the court's use of facts relating to Pelis's interaction with the neighbors was limited to noting it was "serious and bizarre" and "potentially very harmful." At trial, Pelis did not dispute that his interactions were bizarre or serious or potentially harmful. He admitted that after being refused assistance, he became "very angry" and used profanities and that a resident responded by getting a shotgun. Thus, the court relied on facts Pelis himself had basically conceded.
II
Cunningham Error
Pelis contends the court violated the Sixth Amendment of the federal constitution by imposing a sentence based on facts not found true by a jury using a beyond a reasonable doubt standard.
Pelis relies on recent United States Supreme Court authority. The Supreme Court held that: "Other than the fact of 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." (Italics added.) (Apprendi v. New Jersey (2000) 530 U.S. 466, 489; Blakely v. Washington (2004) 542 U.S. 296, 301; Cunningham v. California, supra, 549 U.S. ___, 127 S.Ct. 856.)
These cases, however, do not apply here because the trial court did not rely on any facts extraneous to the count to increase Pelis's sentence beyond the statutory maximum. Pelis sought to reduce to a misdemeanor a felony conviction that had been found true by the jury beyond a reasonable doubt. Pelis sought to strike a prior strike conviction that had been found true beyond a reasonable doubt by the trial court. As to his prison term,
the court imposed the statutory minimum, not the maximum. In sum, there was no Cunningham violation in this case.
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
McINTYRE, J.
O'ROURKE, J.
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[1] All references are to the Penal Code.
[2] Officer Sharki is five feet, 10 inches tall and weighs approximately 180 pounds. Pelis is six feet, three inches tall and weighs approximately 200 pounds.
