P. v. Rodriguez

Filed 7/17/07 P. v. Rodriguez CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Raul Ezequiel Rodriguez appeals from a judgment entered after a jury found him guilty of first degree burglary, making a criminal threat, felony vandalism, and knowingly violating a restraining order. He contends the trial court made a number of prejudicial instructional errors, and he claims the evidence is insufficient to support his conviction for knowingly violating a protective order. He also argues that, under Cunningham v. California (2007) ___ U.S. ___ [127 S.Ct. 856] (Cunningham), the trial court erred by imposing the upper term on his burglary conviction. We reverse the misdemeanor conviction for knowingly violating a restraining order. We also reverse appellants sentence on the burglary conviction and remand for resentencing in light of Cunningham. In all other respects, we affirm the judgment.

Factual and Procedural Background

Appellant and Griscelda Rios had a relationship for nine years that was marked by fighting, break-ups, and emotional stresses. They had three children together. Rios and the children lived together in an apartment in Ukiah. Appellant was not included in the lease agreement.

On September 23, 2005, Rios informed appellant she wanted to break up. She sought a restraining order against him with the help of Project Sanctuary. She also changed the locks to her apartment. The court issued a temporary restraining order against appellant on September 30, 2005. Among other things, the order directed appellant to stay at least 100 yards away from Rios, their children, and Rioss home. The order also directed appellant not to contact or telephone Rios or their children. The order was valid until October 14, 2005, the date set for a hearing to consider whether the order should be extended in some form for up to three years.

On the evening of September 30, 2005, Rios planned to go out with some friends. At about 8:30 p.m., she dropped the children off at a neighbors house and encountered appellant as she was returning to her apartment. Rios told appellant she had a restraining order and asked him to leave. Appellant grabbed Rios and would not let go. He said, Lets talk. Lets talk. When two men who saw the encounter began to approach the couple, Rios took the opportunity to slip under appellants arm and go across the street to a friends house, where she called the police. The police informed Rios to call again if appellant returned so that they could show him the restraining order.

Following this confrontation, Rios went to the Perkins Grill and Bar, where she met some friends. Appellant arrived at the bar about an hour later and approached Rios. Both Rios and her friend told appellant to go away. Appellant mentioned to her friend she had a restraining order and the friend offered to give it to appellant. The friend took a copy of the restraining order, but Rios did not actually see her friend or anyone else serve appellant with the order. Instead, she simply saw her friend go to the bathroom with the papers and return without them.

Rios stayed at the bar until it closed at 2:00 a.m. During the evening, appellant had approached Rios and called her names, such as slut, whore, tramp, and bitch. While Rios was dancing with a friend, appellant approached her dancing partner and said, She has three kids.

When Rios left the bar to retrieve her car, she saw that someone had smashed and shattered the window on the right side of her car. In addition, the cars paint was scratched and there was a dent on the door that appeared to be caused by someone kicking it. Her friends car had a punctured tire. Rios suspected appellant of causing the damage because he had previously done the same thing to another vehicle of hers. Rios spoke to a police officer, who instructed her to call the next day and make a report. The estimate to repair the damage was roughly $3,000.

From the bar, Rios went to her friends house, where she stayed up until around 4:00 a.m. She awoke at 6:00 a.m. and noticed she had received a number of missed calls on her cell phone, including some that were placed from appellants cell phone. Appellant had not left any messages. Rios drove her car to her neighbors house to pick up her children. On the way, she answered a call on her cell phone from appellant. Rios noticed the call was being placed from her home phone. Appellant asked Rios where she spent the night and inquired whether she had mess[ed] around with the guy he had seen her with on the dance floor. Rios told appellant to leave her house. Appellant responded, If I see you, Im going to shoot you. Although appellant had made many threats in the past, Rios took this threat more seriously and was scared and concerned for her life. She drove straight to the Ukiah police department.

Officer Cabral spoke to Rios, who was crying and upset. She was afraid to go back to her apartment because she suspected appellant was waiting there for her. Officer Cabral left to check on Rioss apartment. When he arrived at the apartment, Officer Cabral noticed that the front door had been forced open. The door trim was broken, the handle side of the door had a shoe print on it, and the door frame was hanging loose near where the door handle meets the frame. The inside of the apartment was in disarray, with broken pictures and glass all over the floor. Clothing was strewn about the apartment. After Cabral phoned Rios, she returned to her apartment. She noticed that photographs and pictures frames had been ripped from the walls and smashed. Her stereo had been kicked and there were pieces of the stereo on her floor. Most of her clothing had been removed from the closet and had been torn or cut up. Among other things missing were two $2 bills that belonged to her children as well as some of her jewelry and some of her shoes. Rios discovered that two of her purses as well as a pink backpack containing her schoolwork were no longer in the apartment. She estimated her losses at approximately $3,000.

While she was still in the apartment with Officer Cabral, Rios received several phone calls on her cell phone. Rios recognized the originating number as appellants cell phone. She did not answer the calls. On one occasion, Officer Cabral answered Rioss phone, but the caller hung up before saying anything.

After the police left, appellant called Rios and asked whether she could take him to their sons soccer game that morning. Rios refused and instead contacted Officer Cabral. Rios and Officer Cabral planned to have appellant meet Rios at a Rite-Aid with the police waiting to arrest him. Rios subsequently met appellant at the Rite-Aid, where appellant was arrested by Officer Cabral. Officer Cabral found two $2 bills in appellants pocket. Officer Cabral told appellant that to [his] knowledge there was a domestic violence restraining order in which Rios was a protected party and appellant was the party to which the order was directed. Appellant claimed he knew nothing about the order. At that point, Officer Cabral verbally informed appellant of the terms of the restraining order.

Officer Cabral transported appellant to the Mendocino County Jail. Later in the day, on October 1, 2005, Rios received a call on her cell phone from Mendocino County Corrections. She did not accept the call.

On October 4, 2005, while appellant was at the Mendocino County Jail, he was served with the temporary restraining order according to a proof of service introduced at trial. The record on appeal contains no other proof of service reflecting service of the order on appellant. Following a hearing on October 5, 2005, the court issued a protective order prohibiting appellant from contacting Rios for three years.

The Mendocino County District Attorney charged appellant in a four-count information filed on December 2, 2005, with making a criminal threat (Pen. Code,[1]  422), first degree burglary ( 459, 460, subd. (a)), felony vandalism ( 594, subd. (b)(1)), and willfully violating a domestic violence restraining order ( 273.6, subd. (a)), a misdemeanor. On February 7, 2006, following a jury trial, the jury found appellant guilty as charged.

On March 29, 2006, the court sentenced appellant to a state prison term of six years eight months. The court imposed the upper term of six years on the first degree burglary conviction, plus an eight month consecutive term (one-third of the middle term) on the conviction for making a criminal threat. The court imposed concurrent terms of two years on the felony vandalism count and one year on the misdemeanor count of violating a restraining order.[2]

Appellant filed a timely notice of appeal.

Discussion

Unanimity Instruction

Appellant contends the trial court erred by failing to instruct on the need for juror unanimity (CALCRIM No. 3501[3]) with respect to the charge of violating a domestic violence restraining order. Specifically, because appellant allegedly violated the protective order on multiple occasions, and because the prosecution did not specify which act constituted a violation of the law, appellant contends the jury should have been instructed it had to agree unanimously on the specific act that formed the basis for his conviction. We agree the courts failure to give a unanimity instruction was reversible error.

The problem arises here because appellant potentially violated the terms of the restraining order on several occasions, but there is no agreement on precisely when appellant can be said to have known about the restraining order. Because any violation of a restraining order must be intentional and knowing in order to constitute a violation of section 273.6, subdivision (a), appellants state of knowledge was critical. CALCRIM No. 2701 specifies what the People must prove in order to demonstrate the knowing violation of an order, as follows: The People must prove that the defendant knew of the court order and that (he/she) had the opportunity to read the order or to otherwise become familiar with what it said. But the People do not have to prove that the defendant actually read the court order.

Appellant could have first learned of the restraining order on four occasions: (1) when Rios mentioned it outside her apartment; (2) when Rioss friend allegedly served it on appellant at the bar; (3) when Officer Cabral verbally informed appellant of the terms of the restraining order; and (4) when appellant was served with the order while in jail. The parties vigorously dispute whether the evidence supports a conclusion appellant had sufficient knowledge of the restraining order before he was taken into custody. When Rios first mentioned the restraining order, appellant had no opportunity to review its terms. As for the purported service of the order at the bar, appellant points out there is no direct evidence the order was actually served on appellant. Even if Officer Cabrals recitation of the terms of the order was sufficient to satisfy the prosecutions burden to show appellant had knowledge of the order, a point appellant disputes, the only act that potentially violated the restraining order after appellant was taken into custody was the unanswered call placed from the Mendocino County Jail. With this factual background in mind, we consider when a unanimity instruction must be given.

When a defendant is charged with a single criminal act but the evidence reveals more than one such act, the prosecution must either select the particular act upon which it relies to prove the charge or the jury must be instructed that it must unanimously agree beyond a reasonable doubt that defendant committed the same specific criminal act. [Citations.] The unanimity requirement is constitutionally rooted in the principle that a criminal defendant is entitled to a verdict in which all 12 jurors concur, beyond a reasonable doubt, as to each count charged. [Citations.] (People v. Brown (1996) 42 Cal.App.4th 1493, 1499-1500.) A trial court has a sua sponte duty to instruct the jury with a unanimity instruction when the evidence shows that more than one act might constitute the charged crime and no election has been made. (People v. Melhado (1998) 60 Cal.App.4th 1529, 1534.) This requirement of unanimity as to the criminal act is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed. [Citation.] (People v. Russo (2001) 25 Cal.4th 1124, 1132.)

Here, the evidence showed that more than one act might constitute a violation of section 273.6, subdivision (a). Yet, the prosecutor did not elect which act supported the charge of violating a restraining order. To the contrary, the prosecutor stated there were several instances when the order was violated and that it was for the jury to decide which instance constituted a willful violation. The prosecutor argued: When did [appellant] violate [the order]? Thats for you guys to decide. Was it when she told him dont have contact with me anymore at my house when she was leaving her residence? When [he] was told he was to stay away from her, at Perkins Street, because there was a court order, when her friend allegedly served him with it? Was it when the officer told him theres a court order? . . . [] Finally, youll see some documentation that he was served on October 5th by the sheriffs office. Thats one other dayanother time that he was made aware.[4] In short, the prosecutor compounded the error by telling jurors they could premise criminal liability on any one of several acts. In the absence of a unanimity instruction, there was no guarantee the jury necessarily agreed upon which act(s) gave rise to a violation of section 273.6, subdivision (a).

The People direct us to authority holding that a unanimity instruction is not required when a defendant is charged with violating a statute by a continuous course of conduct. The exception for a continuous course of conduct applies in two circumstances: (1) when the statutory offense contemplates a continuous course of conduct involving a series of acts over a period of time, or (2) when the acts are so closely connected in time or location as to form a single transaction. (People v. Zavala (2005) 130 Cal.App.4th 758, 769.) The first circumstance applies to a limited category of crimes, such as failure to provide for a minor child, child abuse, and stalking, where the language of the statute focuses on the goal or cumulative effect of the offense. (People v. Sanchez (2001) 94 Cal.App.4th 622, 631-632; People v. Zavala, supra, 130 Cal.App.4th at p. 769.) The People have cited no authority to support a conclusion that the crime of violating a domestic violence restraining order fits within that limited category of offenses.

Turning to whether the acts were so closely related in time and location as to form a single transaction, the People urge that the acts occurred in fairly rapid succession. The People cite case law establishing that criminal acts separated by a matter of hours have been held to be part of a single transaction. (See, e.g., People v. Mota (1981) 115 Cal.App.3d 227, 232 [multiple acts of sexual intercourse occurring within one hour at same location constituted continuous course of conduct].) The various acts here, however, were separated by time and location. Appellant allegedly violated the restraining order outside Rioss apartment, at a bar later that evening, when he entered Rioss apartment the following day, and when he called her from the jail later in the day.

In any event, even if the acts occurred in rapid succession, as the People contend, that fact is not determinative of whether the acts form a continuous course of conduct. The continuous conduct rule applies when the defendant offers essentially the same defense to each of the acts and there is no reasonable basis for the jury to distinguish between them. [Citation.] (People v. Stankewitz (1990) 51 Cal.3d 72, 100.)  [W]here the acts were substantially identical in nature, so that any juror believing one act took place would inexorably believe all acts took place, the [unanimity] instruction is not necessary to the jurys understanding of the case. [Citations.] (People v. Beardslee (1991) 53 Cal.3d 68, 93.)

In this case, there was a reasonable basis for the jury to distinguish among the various acts alleged to constitute a violation of the restraining order. The acts were distinct because there was evidence suggesting appellant first learned about the order at various times throughout the period appellant allegedly committed the acts. A juror would necessarily distinguish among the acts depending upon when he or she believed appellant received legally sufficient notice of the restraining order. Thus, it is not the case the jury inexorably believed all the acts necessarily constituted knowing violations of the restraining order simply because it concluded that one of the acts was a knowing violation of the order. Consequently, the trial court erred by failing to give a unanimity instruction with respect to the charge of violating a restraining order.

Our review of a trial courts failure to give a unanimity instruction is governed by Chapman v. California (1967) 386 U.S. 18, 24, which allows us to affirm only if the error is harmless beyond a reasonable doubt.[5] (People v. Melhado, supra, 60 Cal.App.4th at p. 1536.) Here, reasonable jurors could arrive at different conclusions about which acts constituted a violation of the law. Jurors one through six, for example, may have concluded the evidence was sufficient to show that appellant was served with the restraining order at the bar. Those jurors could have found that appellant violated the order by continuing to harass Rios at the bar and by breaking into her apartment the following morning. Jurors seven through twelve, by contrast, may have found that appellant did not have knowledge of the restraining order until Officer Cabral explained its terms to appellant at the time of his arrest. Those jurors could have concluded that appellant violated the order only by calling Rios from jail. Yet, jurors one through six may have believed the evidence was insufficient to show that appellant placed the unanswered call from the jail. In such a case, twelve jurors would have found appellant guilty of violating a restraining order without agreeing upon the act that constituted the crime. Because we cannot say beyond a reasonable doubt that each juror agreed on the particular criminal act that formed the basis for the verdict, the error is not harmless.

Accordingly, we reverse the misdemeanor conviction for violation of section 273.6, subdivision (a). We need not reach appellants alternative grounds for reversal of that conviction.

Cunningham Error

The trial court imposed the upper term of six years for appellants burglary conviction based on the following findings: In aggravation, the court has considered the following factors: that it appeared that the defendant waited until the victim left her home and then went inside and destroyed personal property which does demonstrate some planning on his part. [] There is a regular history of criminal conduct. [] He was on a grant of probation when this occurred. His probations have not been successful. [] In mitigation, I find no circumstances. [] In considering mitigation against aggravation, I find the aggravated term is appropriate. [] I do find, as to Count 2, that the principal term will be the [section] 459 violation and impose six years. The object of the entry, it appears to the court, was to destroy property of the victim.

In his opening brief, appellant argued the trial court erred by imposing the upper term on his burglary conviction based on facts neither admitted by appellant nor found to be true beyond a reasonable doubt by a jury, citing Blakely v. Washington (2006) 542 U.S. 296, and Apprendi v. New Jersey (2000) 530 U.S. 466. While this appeal was pending, the United States Supreme Court decided Cunningham, supra, 127 S.Ct. 856, in which the court held that the procedure under Californias determinate sentencing law for selecting upper terms violates a defendants Sixth and Fourteenth Amendment right to jury trial because it assigns to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence. (Id., 127 S.Ct. at p. 860.) The People and appellant have taken the opportunity to address the application of Cunningham to the facts of this case.

Preliminarily, we must address the Peoples contention that appellant forfeited his claim of error by failing to object at trial. Reviewing courts have traditionally excused parties for failing to raise an issue at trial where an objection would have been futile or wholly unsupported by substantive law then in existence. [Citations.] (People v. Welch (1993) 5 Cal.4th 228, 237-238.) At the time appellant was sentenced, the trial court was compelled to follow People v. Black (2005) 35 Cal.4th 1238 (Black), judgment vacated and cause remanded sub nom. Black v. California (2007) 127 S.Ct. 1210. In Black, our Supreme Court analyzed Californias determinate sentencing scheme in light of Blakely and held that the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendants Sixth Amendment right to a jury trial. (Black, supra, 35 Cal.4th at p. 1244.) In light of Black, an objection based on Blakely would have been futile at the time of sentencing. Accordingly, appellant did not forfeit his right to raise the issue on appeal.

Turning to the merits, at least one of the aggravating factors found by the sentencing court clearly falls within the category of sentencing facts that must be determined by a jury unless the defendant waives his right to a jury trial. Specifically, the court was not permitted to impose an upper term based upon a finding that the crime was committed in a manner demonstrating planning or sophistication. The remaining three factors cited by the courtthat appellant had a history of criminal conduct, that he was on a grant of probation when he committed his crime, and that his past probations have not been successfularguably fall within the Almendarez-Torrez exception that allows the court to impose a sentence in excess of the statutory maximum based upon a judges finding that a defendant suffered a prior conviction. (Cf. Almendarez-Torres v. United States (1998) 523 U.S. 224, 226-227 (Almendarez-Torres) [recidivism not element of crime when used solely for sentence enhancement purposes].) As interpreted by the California Supreme Court, the Almendarez-Torres exception extends beyond the mere fact of a prior conviction, and includes facts related to the defendants recidivism. (See People v. McGee (2006) 38 Cal.4th 682, 700-709.) The California Supreme Court is currently considering the scope of the recidivism exception in light of the United States Supreme Courts decision in Cunningham. (See People v. French, S148845; People v. Pardo, S148914; People v. Sandoval, S148917; People v. Hernandez, S148974; People v. Mvuemba, S149247.) We need not explore the reach of the recidivism exception here. As explained below, we would find reversible error even if we were to assume three of the four factors cited by the trial court fell within the recidivism exception.

The People contend that appellants constitutional right to a jury trial is not violated under Cunningham when at least one aggravating factor is properly found by the court under the Almendarez-Torres exception. The People argue that because a single aggravating factor renders a defendant eligible for the upper term (see People v. Osband (1996) 13 Cal.4th 622, 728-729), the upper term becomes the statutory maximum in such a case. Therefore, according to the People, the court may proceed to make findings on other aggravating circumstances without violating a defendants right to a jury trial. The only authority cited in support of this argument is Justice Kennards concurring and dissenting opinion in Black, supra, 35 Cal.4th 1238, 1264. Justice Kennard disagreed with the majority opinion that Californias determinate sentencing law did not violate a defendants constitutional right to a jury trial as defined in Blakely, but agreed to affirm the judgment based upon the reasoning the People now advance in support of the judgment in this case. (Black, supra, 35 Cal.4th at pp. 1270, 1273 (conc. & dis. opn. of Kennard, J.).) The Cunningham court, however, was unequivocal that the 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 [citation] (Cunningham, supra, 127 S.Ct. at p. 860, first italics added), and that under California law the statutory maximum is the middle term. (Id. at p. 871.) Given this holding, we cannot conclude the United States Supreme Court would accept the rationale that the upper term becomes the statutory maximum once the court properly makes a finding of at least one aggravating factor under the recidivism exception.

The People next argue the error was harmless. The People concede that Cunningham error should be subject to Chapman harmless error review. They contend the jury would have found each of the aggravating circumstances true beyond a reasonable doubt had they been presented to the jury. We disagree. We cannot conclude the jury would have found all the courts findings true beyond a reasonable doubt. It is unclear what evidence supports the finding that appellant waited until the victim left her apartment to destroy her belongings. Rather, the evidence indicates appellant entered the apartment in the morning following his encounter the previous night with the victim, long after the victim left the apartment the evening before. It is entirely possible that appellant assumed the victim had returned home by the time he arrived at her apartment the following morning.

It has long been the law in California that when a court relies upon both improper and proper factors in imposing a sentence, its exercise of discretion may be upheld, and no resentencing is necessary if this court can determine from the record that the court would have exercised its discretion in the same way without the improper factor. (See People v. Avalos (1984) 37 Cal.3d 216, 233; People v. Kelley (1997) 52 Cal.App.4th 568, 581, fn. 18). However, [t]he statutory preference for imposition of the middle term, when coupled with the requirement that aggravating circumstances must outweigh mitigating circumstances before imposition of the aggravated term is proper, creates a presumption. [Citation.] Thus, the reviewing court may not simply ask whether the imposed sentence would be wholly unsupported or arbitrary in the absence of error but must also reverse where it cannot determine whether the improper factor was determinative for the sentencing court. [Citation.] (People v. Avalos, supra, 37 Cal.3d at p. 233.)

Even assuming three of the four factors relied upon by the court fell within the Almendarez-Torrez recidivism exception, the record in this case is too equivocal to permit us to resolve whether the improper factor was determinative for the sentencing court in its selection of the upper term. Although the court cited appellants criminal background as an aggravating factor, the court also noted that appellants two felony convictions dated back to 1995 and 1996. The court observed that appellants subsequent criminal history was a pattern of misdemeanor violations. While it is true the court found no mitigating factors, we cannot say with certainty the court would have imposed an upper term sentence based on a pattern of misdemeanor violations coupled with past violations of probation and two decade-old felony convictions for which appellant received probation and jail time. Under these circumstances, rather than speculate as to whether the court would have imposed the upper term in the absence of the improper factor, it is appropriate to vacate the upper term sentence on appellants burglary conviction and remand to the trial court with directions to hold a resentencing hearing consistent with Cunningham.

Disposition

Appellants conviction for violating a restraining order ( 273.6, subd. (a); count 4) is reversed. The upper term sentence on appellants first degree burglary conviction ( 459; count 2) is vacated and the matter is remanded for resentencing in accordance with the requirements of Cunningham. We express no opinion whether compliance with Cunningham will require a change in the actual sentence imposed in this case. In all other respects, the judgment is affirmed.

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McGuiness, P.J.

We concur:

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Parrilli, J.

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Siggins, J.

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[1] All further statutory references are to the Penal Code unless otherwise specified.

[2] The abstract of judgment contains an error in that it does not reflect the misdemeanor conviction for violating a restraining order ( 273.6, subd. (a)).

[3] CALCRIM No. 3501 provides, in relevant part: The People have presented evidence of more than one act to prove that the defendant committed (this/these) offense[s]. You must not find the defendant guilty unless: [] 1. You all agree that the People have proved that the defendant committed at least one of these acts and you all agree on which act (he/she) committed [for each offense]; [] OR [] 2. You all agree that the People have proved that the defendant committed all the acts alleged to have occurred during this time period [and have proved that the defendant committed at least the number of offenses charged].

[4] Plainly, appellants criminal liability for a violation of section 273.6, subdivision (a), cannot hinge upon service of the restraining order while he was in jail, after all of the acts constituting violation of the order allegedly took place.

[5] There is a split of opinion among Courts of Appeal regarding the applicable standard of harmless error. (See People v. Wolfe (2003) 114 Cal.App.4th 177, 185-186 [collecting cases].) The People do not address which harmless error standard applies. We adhere to our Divisions decision in People v. Melhado that the Chapman standard of error applies. (People v. Melhado, supra, 60 Cal.App.4th at p. 1536.)