P. v. Reed

Filed 7/3/07 P. v. Reed CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Kings County. Peter M. Schultz, Judge.

Tara K. Allen, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.

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Our opinion in this case was originally filed on August 25, 2006. The California Supreme Court denied review. The United States Supreme Court granted certiorari. On April 4, 2007, it vacated the judgment and remanded the case to us for further consideration in light of Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham).

Involved in an altercation with a former girlfriend, defendant Jackie Ray Reed appeals from a conviction of inflicting corporal injury on a former cohabitant. Defendant argues that there was insufficient evidence to establish that he was a former cohabitant of the victim. We conclude that the evidence was sufficient to establish that defendant and his victim were former cohabitants. Our discussion of this issue is the same as in our original opinion.

Defendant also argues that, in imposing the upper term, the court erred under Blakely v. Washington (2004) 542 U.S. 296 (Blakely) as applied in Cunningham. Having considered the case in light of Cunningham, we conclude that the sentence was proper. Any sentencing error under Cunningham or Blakely was harmless. We affirm the judgment.

FACTUAL AND PROCEDURAL HISTORIES

On February 18, 2005, the victim, defendants former girlfriend, was living in a camper-trailer located on residential property occupied by defendants brother and wife. At approximately 7:30 p.m., defendant entered the camper-trailer and attacked the victim, hitting her in the face and beating her with his fists. The victim, after escaping the attack, ran to the main house on the property and called 911. Defendant was arrested and charged in count one with inflicting corporal injury on a former cohabitant (Pen. Code,  273.5, subd. (a))^[1]and in count two with threatening to commit a crime that would result in death or great bodily injury ( 422).

At trial, the victim testified that she met defendant in 1979 or 1980 and became romantically involved with him in the early 1980s. According to her testimony, she lived with the defendant from 1987 to 1992 and during this time they had sexual relations. After 1998, when she was diagnosed with cancer, she maintained only a platonic relationship with defendant.

The jury deadlocked on count two, but defendant was convicted of count one, inflicting corporal injury on a former cohabitant. The trial court sentenced defendant to the upper term of four years in state prison.

DISCUSSION

I. Sufficient Evidence

Defendant argues that there is insufficient evidence of former cohabitation within the meaning and intent of section 273.5, subdivision (a). When an appellant asserts there is insufficient evidence to support the judgment, our review is circumscribed. [Citation.] We review the whole record most favorably to the judgment to determine whether there is substantial evidencethat is, evidence that is reasonable, credible, and of solid valuefrom which a reasonable trier of fact could have made the requisite finding under the governing standard of proof. (In re Jerry M. (1997) 59 Cal.App.4th 289, 298.) Further, the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Catlin (2001) 26 Cal.4th 81, 139.) As we will explain, the prosecution submitted sufficient evidence under these standards.

Section 273.5, subdivision (a), provides:

Any person who willfully inflicts upon a person who is his or her spouse, former spouse, cohabitant, former cohabitant, or the mother or father of his or her child, corporal injury resulting in a traumatic condition, is guilty of a felony, and upon conviction thereof shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not more than one year, or by a fine of up to six thousand dollars ($6,000) or by both that fine and imprisonment.

Cohabitation for the purposes of the statute refers to those living together in a substantial relationshipone manifested, minimally, by permanence and sexual or amorous intimacy. (People v. Taylor(2004) 118 Cal.App.4th 11, 18.)

Defendant contends that there is insufficient evidence to establish he ever cohabited with the victim within the meaning of the statute. In support of this contention, defendant argues that he and the victim had never married or lived together exclusively and did not share common offspring.

Neither marriage nor children in common are required by the statute. It expressly covers unmarried cohabitants as well as spouses. It says nothing about having children in common. ( 273.5, subd. (a).)

Exclusivity is also not an element of cohabitation. The [p]ermanence [needed to establish cohabitation] does not require exclusivity [between the offender and victim] in either the relationship or the living arrangement. (People v.Taylor, supra, 118 Cal.App.4th at p. 19.) In fact, [u]nder the definition of cohabiting, there is no logical or practical reason why a defendant could not cohabit with two people at once, by maintaining two substantial relationships with two separate persons in two separate residences . (People v. Moore (1996)44 Cal.App.4th 1323, 1334.) If an offender can cohabit with two persons and still be guilty of the crime, then so can an offender who cohabits with his victim while having other girlfriends with whom he does not cohabit.

Defendant further contends that, even if he and the victim did formerly cohabit, they did so over a decade ago, and this is too long ago to justify subjecting him to liability. He claims that former, within the meaning of the statute, cannot extend so far back.

There is no authority supporting defendants position and no reason to impose the sort of time limit his argument suggests. The statute was amended in 1999 to include former spouses and cohabitants (Stats. 1999, ch. 662,  9.5). The primary purpose of the amendment was simply to strengthen the statutes relating to domestic violence. (Sen. Com. on Judiciary, analysis of Sen. Bill No. 218 (1999-2000 Reg. Sess.) as amended Mar. 22, 1999, p. 2.) Nothing in the statute or its legislative history suggests any time limit after which a former relationship should not count. If there is no ambiguity in the language of a statute we undertake to interpret, then we presume the Legislature meant what it said, and the plain meaning of the statute governs. [Citation.] (Hunt v. Superior Court (1999) 21 Cal.4th 984, 1000.)

The prosecution submitted sufficient evidence to establish former cohabitation between defendant and his victim. The jury could reasonably believe, based on the victims testimony, that defendant and victim lived together for approximately five years beginning in 1987 and had sexual relations during this period. The elements of permanence and intimacy were established by the victims testimony.

Defendants final contention is that there is insufficient evidence to establish a current cohabitation relationship. We need not address this contention. The defendant was convicted of injuring a former cohabitant, not a current one. The information described the victim as a former cohabitant, as did the prosecutor in his closing argument.

II. Sentencing issues under Blakely v. Washington

Defendant argues that the imposition of the upper term violated the Sixth Amendment as interpreted in Blakely and Cunningham. In Blakely, the Supreme Court held that a sentence for kidnapping imposed under the Washington sentencing scheme violated the defendants Sixth Amendment right to a jury trial. (Blakely, supra, 542 U.S. at pp. 298, 304.) Under Washington law, the trial court could impose a sentence longer than 53 months only if it found substantial and compelling reasons to do so. (Id. at p. 299.) The judge found that the crime was committed with deliberate cruelty and imposed a sentence of 90 months. (Id. at p. 298.) The Supreme Court held that this violated the Sixth Amendment as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 490: 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. (Blakely, supra, 542 U.S. at p. 301.) It did not matter that the offense was a class B felony and that class B felonies carried a maximum sentence of 10 years; the states sentencing law did not allow the sentence to exceed 53 months without judicial factfinding. Our precedents make clear that the statutory maximum for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. (Id. at p. 303.) The court continued:

In other words, 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. When a judge inflicts punishment that the jurys verdict alone does not allow, the jury has not found all the facts which the law makes essential to the punishment, [citation], and the judge exceeds his proper authority. (Blakely, supra, 542 U.S. at pp. 303-304.)

On January 22, 2007, the United States Supreme Court issued its decision in Cunningham, overruling People v. Black (2005) 35 Cal.4th 1238 and holding that Blakely applies to the imposition of upper terms under California law. (Cunningham, supra, 549 U.S. ___ [127 S.Ct. at pp. 860, 871].) The imposition of an upper term under California law is therefore unconstitutional, unless it is based on prior convictions, facts found by the jury, or facts admitted by the defendant.

We need not decide whether the imposition of the upper term ran afoul of the Supreme Courts precedents in this case. Any error was harmless.

The courts findings in support of imposing the upper term were these:

With regard to the aggravating and mitigating circumstances, the significantunder the significant aggravating circumstances are that Mr. Reed was on probation at the time of the commission of this crime and that his prior performance on probation has been unsatisfactory.

Those appear to substantially outweigh the mitigating circumstances.

According to the probation report, defendants adult record consisted of several driving-related offenses committed between 1991 and 2002: three convictions of driving under the influence (Veh. Code,  23152) and four convictions of driving on a suspended license (Veh. Code,  14601.1). Defendant was found to have violated the terms of his probation ( 1203.3) six times.

The aggravating factors the court relied onbeing on probation at the time of the current offense and prior violations of probationwere related to defendants recidivism. We acknowledge that these factors do not fall precisely within Blakelys formulation, approving the use of the fact of a prior conviction (Blakely, supra, 542 U.S. at p. 301) to increase a sentence. Assuming it was error for the trial court to rely on these factors, however, we are confident that the error was harmless beyond a reasonable doubt under the circumstances of this case. (Washington v. Recuenco (2006) ___ U.S. ___ [126 S.Ct. 2546, 2550, 2551, 2553] (Recuenco); Chapman v. California (1967) 386 U.S. 18.) Because defendants criminal history was the dominant fact in the background of the two aggravating factors the court found, there is no significant likelihood that the court would have imposed a different sentence if it had been directed that it could rely only on the fact of a prior conviction in imposing the upper term. It is equally clear that if the factors the court relied on had been placed before the jury for findings, it would have found that defendant was on probation when he committed the current offense and had performed unsatisfactorily on probation (by violating it) previously. Thus, we can see that the error is harmless either by considering what the court would have done if it had known it could rely only on prior convictions or by considering what the jury would have done if asked to find what the court found.

Although he acknowledges the holding of Recuenco, defendant argues that the claimed error here cannot be found harmless by considering what the jury would have done. This is so, he contends, because there is no procedure under California law for submitting a question of this kind to a jury: This court cannot speculate on the result of an upper term sentencing proceeding the trial court had no authority to convene. He says this means that, as a matter of state law, harmless error analysis cannot apply in this case. We disagree. The error here, if any, was an error of federal constitutional law. The sentence was valid as a matter of state law; no state-law sentencing error has been claimed. An error of state law does not arise because we consider what the result would be if the claimed federal error were removed from the picture. It may or may not be that trial judges are unauthorized to submit sentencing factors like these to juries, but that does not mean we are unauthorized to carry out harmless-error review.

Because of this holding, we need not address the Peoples contention that defendant forfeited his claim by failing to raise it in the trial court.

DISPOSITION

The judgment is affirmed.

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^*Before Harris, Acting P.J., Wiseman, J., and Cornell, J.

^[1]Subsequent statutory references are to the Penal Code unless indicated otherwise.