P. v. Zucker

Filed 9/26/07 P. v. Zucker 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Raul Sahagun, Judge. Affirmed.

Gina McCoy, 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, John R. Gorey and Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.

_______________________

Kidd Zucker, convicted of assault with a deadly weapon or by means of force likely to produce great bodily injury (Pen. Code,[1] 245, subd. (a)(1)) and misdemeanor battery ( 242), appeals his conviction and sentence. He claims that his three year sentence enhancement for inflicting great bodily injury ( 12022.7, subd. (a)) is not supported by sufficient evidence; that the trial court should not have admitted into evidence photos of one of the victims; and that his upper term sentence for the assault must be vacated. Affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

Zucker had an intermittent relationship with Priscilla Esquer. This relationship resulted in a daughter, M., who was diagnosed with leukemia. On the evening of January 28, 2005, Priscilla[2]left M. with Priscillas mother, Virginia Esquer. Virginia took M. and another grandchild on a car ride to lull M. to sleep. At about 11:00 p.m., she returned to her home and parked in her driveway. Zucker drove his vehicle into the driveway and parked behind Virginias van.

Virginia approached the car, thinking it was Priscilla who had returned home. No one was in the car. Virginia returned to the van and saw that Zucker had walked up to the side of the van. When Virginia realized it was Zucker, she asked him to leave. Zucker refused to leave, demanded to know where Priscilla was, and insisted that Virginia telephone Priscilla. Zucker, upset, accused Virginia of being the problem in his relationship with Priscilla. Frightened, Virginia told Zucker she was going to call the police and tried to move him aside and push past him to lock herself inside her van with the children. Zucker pulled her from the van and punched and kicked her in the arms, legs, and stomach. She felt a sharp object cut her forehead.

Virginias sister, Marcela Peru, saw Zucker punching and kicking Virginia on the ground and attempted to intervene. Peru was unable to stop the attack; Zucker punched her on the chest, threw her on the ground, and resumed hitting Virginia. Peru did manage to remove the children from the car and take them to a nearby house, where she called 911. The news that the police were on the way caused Zucker to end the beating of Virginia, which had lasted for 20 to 25 minutes. Zucker was arrested at the scene.

Zucker was charged with a variety of offenses for this incident. At trial, he admitted that he beat Virginia up pretty bad, and that he punched and kicked her. He was convicted of assault with a deadly weapon or by means of force likely to produce great bodily injury on Virginia and found to have personally inflicted great bodily injury on her. The jury also convicted him of battery for striking Peru.

Zucker admitted a prior conviction for being an accessory to a felony ( 32). At the prosecutors request, the trial court struck Zuckers other prior conviction because it did not qualify as an enhancement penalty or a strike.

At sentencing, the court imposed the upper term sentence for the assault, and added three years in prison pursuant to section 12022.7, subdivision (a); one year for his prior prison term pursuant to section 667.5, subdivision (b); and six months for the battery conviction, all of which were designated to run consecutively.

The court justified the imposition of the upper term sentence for assault as follows: [I]n my 11 years on the bench I have never seen an act so cowardly. We have a young, strong male who beat a woman more than twice his age. He went to the house. He didnt go there to check on his daughter. He went there because he was angry that his ex-wifeshe wasnt his wifehis ex-girlfriend wouldnt respond to him, wouldnt answer the phone. And when he went over there, he saw the mother-in-law, the grandmother, and he asked[,] Wheres Priscilla? Wheres Priscilla? She wouldnt tell him, and he beat her. And he hit her, and he wouldnt stop. I have never seen a beating that lasted for as long as this one lasted. It must have lasted 15 minutes. He beat her. Her sister came running over, saw the beating. She heard the beating from her house. She ran over. She tried to get the defendant off the victim, and she couldnt. He got her. He threw her to the ground like a rag doll and continued beating her.

Finally, she was able to call the police and she told the defendant[,] The police are coming. And as the police are coming down the street, thats when he stopped the beating. So it was a brutal attack. I think it was unprovoked. I dont give any credibility that he was there for his daughter. If he was there for his daughter, he would have grabbed his daughter and left. No, it showed me he has a callous heart, not only when he beat this woman, but he would beat her in front of his own daughter. He beat his childs grandmother. And the scar that hes going to place on this child is never going to be erased.

So as to count 2, the 245, the court selects the high term of four years. Court finds that the victim was particularly vulnerable. She is a woman more than twice his age. She was, at that time, reaching into her van to tend to her granddaughter and he surprised her and approached her and was able to gain the advantage, and the court feels she was particularly vulnerable because of that. He has also engaged in a pattern of violent conduct, which indicates a serious danger to society. He is a convicted felon. He has a prior assault, prior 245, for which he did not go to prison. So that was that state prison prior [that] was stricken, but nevertheless the conviction stands. So the court is taking that into consideration in imposing the high term.

Zucker appealed.

DISCUSSION

I. Admission of Photograph and Sufficiency of Evidence on Enhancement

Zucker argues that it was error to admit a photograph of Virginias injuries on the ground that it was more prejudicial than probative and therefore should have been excluded under Evidence Code section 352. He argues that the error was prejudicial because it apparently compelled the jury to find great bodily injury based on the sheer amount of blood depicted in the photograph rather than [on] the testimonial evidence presented at trial. Zucker claims that there was no testimonial evidence that could properly have been the basis for a finding of great bodily injury, so the jurys finding necessarily demonstrates that the jurys emotions were inflamed by the bloody image and that it found the great bodily injury enhancement allegation under section 12022.7 true based on this image alone. Therefore, Zucker claims that the evidence should have been excluded and that the enhancement allegation finding should be vacated. We reject this argument in its entirety.

We review the challenge to the admission of the evidence for abuse of discretion (People v. Valdez (2004) 32 Cal.4th 73, 108), and conclude that the trial court properly admitted the photograph of Virginias injuries. As trial counsel admitted, the photograph had probative value: Zucker had been charged with attempted murder for attacking Virginia as well as assault with a deadly weapon or by force likely to produce great bodily injury. He was alleged to have personally used a knife and to have inflicted great bodily injury on Virginia. As the trial court observed, the photograph was relevant because it tended to demonstrate Virginias injuries, which were relevant in determining whether Zucker had attempted to kill her, whether he used a knife, and whether he caused her great bodily injury. This evidence, therefore, was significantly probative of several disputed facts at issue at trial. While the photograph did in fact show a great deal of blood, the trial court reasonably concluded that the probative value of the photograph with respect to the several factual questions on which it was relevant outweighed any prejudicial impact inherent in the bloody image. (See, e.g., People v. Stitely (2005) 35 Cal.4th 514, 544-545 [trial court did not err in concluding that probative value outweighed prejudice where unpleasant photographs were relevant to various elements of the offenses charged].) The trial courtwhich limited the prosecution to only one such photograph, thus reducing any potential prejudicial impactdid not abuse its discretion in allowing the photograph of Virginias injuries to be admitted into evidence.

In light of the jurys verdict, we are highly skeptical of Zuckers claim that the photograph inflamed the jurys passions and caused it to find true the great bodily injury allegation based on emotion rather than on the evidence. The jury found Zucker not guilty of attempted murder and concluded that he did not personally use a knife in the assault on Virginia. This verdict does not appear to reflect a passionately inflamed jury blindly punishing a defendant based on an emotional reaction rather than on a logical evaluation of the relevant evidence, but rather a careful evaluation of the evidence presented as it applied to each charge and special allegation. (People v. Branch (2001) 91 Cal.App.4th 274, 286 [evidence should be excluded as unduly prejudicial when it is of such nature as to inflame the emotions of the jury, motivating them to use the information, not to logically evaluate the point upon which it is relevant, but to reward or punish one side because of the jurors emotional reaction]; People v. Crittenden (1994) 9 Cal.4th 83, 134 [prejudicial evidence uniquely tends to evoke an emotional bias against a party as an individual, while having only slight probative value with regard to the issues].)

Turning to the larger issue of whether there was sufficient evidence to support the jurys finding that Zucker inflicted great bodily injury on Virginia, we review the jurys finding on this question of fact for substantial evidence. (People v. Escobar (1992) 3 Cal.4th 740, 750; People v. Wolcott (1983) 34 Cal.3d 92, 107.) For purposes of section 12022.7, subdivision (a), great bodily injury is defined as a significant or substantial physical injury. ( 12022.7, subd. (f).) Virginia had a bloody nose, bruises on her arms (including finger marks), chest, stomach, flank, legs, and face, and a laceration on her head. She had a four-inch hematoma on her arm. The bruise on her flank was roughly circular, eight to nine inches in size. Her facial laceration was approximately ten centimeters long and one-half inch deep, and it required 42 stitches to close it. Another bruise on Virginias face was described by the medical professional who treated her after the attack as very large, approximately six centimeters round. When treated, Virginia required a shot of Demerol to ease the pain from her injuries. X-rays were taken of her skull to determine whether Zucker had fractured it during the attack. As the blood later drained from the injuries to her face, she developed two black eyes. As of the time of trial, she reported that the laceration became infected and that she was still being seen by her doctor on a regular basis because of the attack. In light of this testimony, the jurys factual determination that Virginia suffered a significant or substantial injury from the 20-minute long beating is supported by substantial evidence.

Virginias injuries were more severe than those in the cases on which Zucker relies to claim that there is no evidence of great bodily injury here. In People v. Martinez (1985) 171 Cal.App.3d 727, 735-736, a stabbing through two shirts and a heavy coat was extremely minor and amounted basically to a pinprick. In both People v. Fuentes (1946) 74 Cal.App.2d 737, 741-742, disapproved on other grounds by People v. Yates (1977) 66 Cal.App.3d 874, 879, and People v. Caudillo (1978) 21 Cal.3d 562, 588, overruled on other grounds in People v. Martinez (1999) 20 Cal.4th 225, 229 and disapproved in part in People v. Escobar, supra, 3 Cal.4th at pp. 750-751, the victims cuts were less severe and did not require sutures.

As the photographic evidence was properly admitted and there was sufficient evidence to support the jurys finding of great bodily injury, we decline to reverse the jurys finding with respect to the section 12022.7, subdivision (a) enhancement.

II. Imposition of the Upper Term

In his opening brief, filed before the United States Supreme Courts decision in Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), Zucker argued that the trial courts findings of circumstances in aggravation were not supported by substantial evidence and that the imposition of the upper term violated his Sixth and Fourteenth Amendment rights. After the Supreme Court decided Cunningham, we permitted the parties to file supplemental briefing with respect to the sentencing issues in this case. After this matter had been submitted, the California Supreme Court issued its decision in People v. Black (2007) 41 Cal.4th 799 (Black II). In light of Cunningham and Black II, the question is whether the imposition of the upper term violated the Sixth Amendment as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Cunningham.

As an initial matter, the Attorney General argues that Zucker waived or forfeited any Sixth Amendment error when he did not object on that ground in the trial court, as his sentencing hearing occurred well after Blakely, supra, 542 U.S. 296 was decided. At the time of the sentencing hearing in this case, May 9, 2006, the California Supreme Court had already decided People v. Black (2005) 35 Cal.4th 1238 (Black I), and the United States Supreme Court had not yet disapproved Black I in Cunningham, supra, 127 S.Ct. 856. The California Supreme Court has held that defendants sentenced after Blakely and Black I who did not object at sentencing on Sixth Amendment grounds did not forfeit their claims because objections would have been futile, as Black I was binding on the lower courts. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4) Zucker has neither waived nor forfeited his claim that the procedure by which he was sentenced violates the Sixth Amendment.

Here, the trial court imposed the upper term sentence based on the victims particular vulnerability, the defendants pattern of violent conduct indicating a danger to society, and his prior conviction for assault with a deadly weapon or by means of force likely to produce great bodily injury ( 245, subd. (a)(1)). A court may consider the fact of a defendants prior conviction in sentencing without submitting the prior conviction to a jury. (Apprendi, supra,530 U.S. at p. 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].)

In Black II, the California Supreme Court ruled that if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, [supra, 542 U.S. 296,] 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.) Therefore, the Supreme Court held, it does not violate the Sixth Amendment for a trial judge to engage in additional fact finding with respect to other aggravating circumstances once a single constitutionally compliant aggravating circumstance has been identified. (Id. at p. 813 [imposition of the upper term does not infringe upon the defendants constitutional right to a jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendants record of prior convictions].)

We are bound by the Supreme Courts decision in Black II, supra, 41 Cal.4th 799. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455). A review of the probation packet confirms that Zucker had a prior conviction for violating section 245. Accordingly, we hold that the imposition of the upper term sentence was authorized in light of Zuckers prior conviction, and that in light of the existence of one constitutionally proper aggravating factor the courts reliance on other aggravating factors that were neither submitted to the jury nor admitted by Zucker did not violate his constitutional right to a jury trial.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ZELON, J.

We concur:

PERLUSS, P. J.

WOODS, J.

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[1] Unless otherwise indicated, all further statutory references are to the Penal Code.

[2] We use first names to refer to Priscilla and Virginia Esquer because they share a common last name.