PEOPLE v. REYES

Filed 2/20/08

CERTIFIED FOR PARTIAL PUBLICATION^*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Shasta)

----

APPEAL from a judgment of the Superior Court of Shasta County, William D. Gallagher, Judge. Affirmed as modified.

Rex Williams, 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, Senior Assistant Attorney General, J. Robert Jibson, Supervising Deputy Attorney General, Peter H. Smith, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Ivan Reyes appeals from his convictions in case No. 06F3055 for making criminal threats and misdemeanor spousal battery. He contends CALCRIM No. 852 violated his right to due process because it allowed the jury to found him guilty based solely on uncharged acts found by a preponderance of the evidence. In the published portion of this opinion, we reject this claim.

Defendant also appeals from the sentence imposed following his conviction on case No. 06F3055 and the true finding he violated his probation in case No. 06F516. He argues the imposition of the upper term sentence violated Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856]. Alternatively, he contends if the sentence did not violate Cunningham because of the existence of a prior conviction, then the same offense was improperly used to impose a consecutive sentence. We are not persuaded by these claims.

RELEVANT FACTUAL BACKGROUND

Mary Shaulis and defendant lived together with their three minor children. Defendant and Mary had lived together for approximately 15 years.

On June 23, 2004, defendant and Shaulis got into an argument, during which defendant shoved Shaulis down on the stove and started choking her with both hands around her neck. Eventually a neighbor called the police. As a result of this incident, defendant was convicted of misdemeanor battery of a cohabitant.

On January 5, 2006, there was another incident of violence between the couple. (Case No. 06F516.) Shaulis went to get some things from a safe and computer in the house.^[1] When she tried to get the items out of the computer, defendant punched her in the face. About 15 minutes later, Shaulis went back to the computer and as she reached for it, defendant grabbed her by the head and started shaking her head back and forth. He also put his hands around her throat and threatened to kill her. A friend of Shauliss called the police. Ultimately, defendant pled no contest to making criminal threats and was sentenced to three years probation, with 120 days in jail.

Defendant was released from jail in March 2006 and returned to live with Shaulis. The fighting and violence started again almost immediately upon defendants return to the home. On April 22, 2006, Shaulis and her children went to a neighbors house to do some chores. Defendant came to the neighbors house and told Shaulis it was time to go. He sounded upset and his tone of voice was harsh. Shaulis knew there was going to be a confrontation, so she wanted the children to stay at the neighbors. Defendant and Shaulis got into an argument and he grabbed her around the neck, he was yelling and screaming, then he grabbed her arm, pulled it up toward her head and threatened to break it. When his son yelled at him to stop, defendant did.

Defendant acknowledged to officers that he and Shaulis had fought. He was angry because they were having financial problems, Shaulis was not cooking meals, and was spending money frivolously. However, defendant claimed it was a verbal argument and that he merely grabbed Shaulis by her shoulders and shook her.

PROCEDURAL HISTORY

In case No. 06F3055, defendant was charged with criminal threats, battery on a cohabitant, and child endangerment. It was also alleged defendant had sustained a prior strike conviction for making criminal threats. In case No. 06F516, a petition for revocation of probation was filed, based on the charges alleged in case No. 06F3055.

Jury trial commenced on July 11, 2006. The parties stipulated that defendant had sustained prior criminal convictions for the June 23, 2004, and January 5, 2006, incidents. The jury found defendant guilty of making criminal threats and battery on a cohabitant, but not guilty of child endangerment. In a separate court trial, the court found the prior strike allegation true and found defendant had violated his probation in case No. 06F516.

On the criminal threats charge, defendant was sentenced to the aggravated term of three years in state prison. Based on the prior strike allegation, this term was doubled to six years. On the battery on a cohabitant charge, defendant was sentenced to a term of six months in county jail. On the probation violation in case No. 06F516, defendant was sentenced to a consecutive term of eight months in state prison.

DISCUSSION

I

CALCRIM No. 852

Defendant contends the trial court violated his due process rights by instructing the jury with CALCRIM No. 852, Evidence of Uncharged Domestic Violence. Specifically, defendant contends the instruction allowed the jury to find him guilty of the charged offenses solely upon finding true by a preponderance of the evidence uncharged offenses.

Effective January 1, 2006, the California Judicial Council withdrew its endorsement of the CALJIC instructions and adopted the CALCRIM instructions. The use of the CALCRIM instructions rather than the CALJIC instructions is strongly encouraged. (Cal. Rules of Court, rule 2.1050(e); People v. Thomas (2007) 150 Cal.App.4th 461, 465.)

Evidence of prior criminal acts is ordinarily inadmissible to show a defendants disposition to commit such acts. (Evid. Code, 1101.) However, the Legislature has created exceptions to this rule in cases involving sexual offenses (Evid. Code,  1108) and domestic violence (Evid. Code, 1109). Our Supreme Court has held that Evidence Code section 1108 conforms with the requirements of due process. (People v. Falsetta (1999) 21 Cal.4th 903, 915.) It has also ruled that CALJIC No. 2.50.01, an instruction explaining the application of section 1108, is proper. (People v. Reliford (2003) 29 Cal.4th 1007, 1012.) The analysis in Falsetta has been used to uphold the constitutionality of Evidence Code section 1109 (People v. Jennings (2000) 81 Cal.App.4th 1301, 1312; People v. Price (2004) 120 Cal.App.4th 224, 240) and the analysis in Reliford has been used to uphold the constitutionality of the corresponding CALJIC instruction, CALJIC No. 2.50.02. (People v. Pescador (2004)119 Cal.App.4th 252, 261-262.) In fact, this court has held [f]or the purposes of evaluating the constitutional validity of the instructions, there is no material difference between CALJIC No. 2.50.01 and CALJIC No. 2.50.02. (People v. Escobar (2000) 82 Cal.App.4th 1085, 1097, fn. 7 . . . .) (Pescador, at p. 261.)

Similarly, there is no material difference between the language found constitutional in CALJIC No. 2.50.02^[2]and that in CALCRIM No. 852.^[3] In fact, CALCRIM No. 852 is expressed in clearer language and makes more certain the manner in which such evidence may or may not be used by the jury. The reasoning of the cases analyzing CALJIC No. 2.50.02 is equally applicable to the validity and propriety of CALCRIM No. 852.

CALCRIM No. 852 makes clear the evidence of uncharged acts of domestic violence may only be considered at all if it has been established by a preponderance of the evidence and explains what is meant by that burden of proof. The instruction also explains that if that burden is not met, the evidence must be disregarded entirely.

As with CALJIC No. 2.50.02, CALCRIM No. 852 explains that if the jury finds the defendant committed the uncharged acts, it may but is not required to conclude defendant was disposed to or inclined to commit domestic violence and may also conclude that the defendant was likely to commit and did commit the crimes charged in this case. Also as with CALJIC No. 2.50.02, CALCRIM No. 852 clarifies that even if the jury concludes defendant committed the uncharged acts, that evidence is only one factor to consider, along with all the other evidence and specifies that such evidence alone is insufficient to prove defendants guilt on the charged offenses. CALCRIM No. 852 then goes on to state that the People must still prove each element of every charge beyond a reasonable doubt. In this, CALCRIM No. 852 goes further than CALJIC No. 2.50.02 with a clarification which inures to defendants benefit.

The authority defendant relies on to support his arguments are cases based on the pre-1997 version of CALJIC No. 2.50.02. (People v. James (2000) 81 Cal.App.4th 1343; 1349 People v. Younger (2000) 84 Cal.App.4th 1360; People v. Frazier (2001) 89 Cal.App.4th 30.) Defendant makes no mention of the more recent authorities involving the revised version of CALJIC No. 2.50.02, to which CALCRIM No. 852 is similar, including this courts decision in People v. Pescador, supra, 119 Cal.App.4th at page 252. In Pescador, we upheld the constitutionality of the revised version of CALJIC No. 2.50.02 (2002 revision) and rejected substantially the same claims defendant makes here. That is, that the instruction undermined the requirement of proof beyond a reasonable doubt. (Pescador,at pp. 261-262.)

Nor does defendant mention the California Supreme Courts decision in Reliford. Reliford emphasized that nothing in the instruction at issue authorized the jury to use preponderance of the evidence as the burden of proof on any issue other than the preliminary determination whether the accused committed a previous sexual assault. (People v. Reliford, supra, 29 Cal.4th at p. 1016.) On that basis, the court rejected the notion that a jury could reasonably interpret the instruction to authorize a guilty verdict of a charged offense on the basis of a lowered standard of proof. (Ibid.)

Finally, we have previously rejected a similar claim regarding CALCRIM No. 1191, the replacement to CALJIC No. 2.50.01, noting that the decision in Reliford remained controlling authority on the issue, despite the semantic differences between the instructions. We noted, there is no material difference in the manner in which each of the instructions allows the jury to conclude from the prior conduct evidence that the defendant was disposed to commit sexual offenses and, therefore, likely committed the current offenses. CALCRIM No. 1191, as given here, cautions the jury that it is not required to draw these conclusions and, in any event, such a conclusion is insufficient, alone, to support a conviction. Based on Reliford, we therefore reject defendants contention that the instruction violated his due process rights. (People v. Cromp (2007) 153 Cal.App.4th 476, 480.)

There is no material difference between CALJIC No. 2.50.02 and CALCRIM No. 852. Based on Reliford, Pescador, and Cromp, we reject defendants contentions that CALCRIM No. 852 violated his due process rights.

II

Imposition Of The Upper Term

Defendant next contends the trial court violated the proscriptions of Cunningham v. California, supra, 549 U.S. at page ___ [166 L.Ed.2d at page 856] by imposing the upper term sentence. Accordingly, defendant contends his principal term must be reduced to four years. We are not persuaded.

At defendants sentencing, the court found defendants convictions are numerous and he was also undeniably on probation . . . when this offense was committed. [] Before and as a result of this new offense clearly his prior performance on probation was unsatisfactory.

A sentencing court may rely on the fact of a prior conviction to impose an upper term sentence, even when it has not been submitted to a jury and proven beyond a reasonable doubt or admitted by defendant. (Cunningham v. California, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864]; see Almendarez-Torres v. United States (1998) 523 U.S. 224, 243 [140 L.Ed.2d 350, 368]; Blakely v. Washington (2004) 542 U.S. 296, 301 [159 L.Ed.2d 403, 412]; Apprendi v. New Jersey (2000) 530 U.S. 466, 488-490 [147 L.Ed.2d 435, 454-455].)

Prior convictions are exempt from the jury trial requirement because the fact of a prior conviction does not relate to the commission of the offense for which the defendant is being sentenced (Apprendi v. New Jersey, supra, 530 U.S. at p. 496 [147 L.Ed.2d at p. 458]), and the certainty that procedural safeguards attached to any fact of prior conviction, . . . mitigate[s] the due process and Sixth Amendment concerns otherwise implicated in allowing a judge to determine a fact increasing punishment beyond the maximum of the statutory range (Id. at p. 488 [147 L.Ed.2d at p. 454]).

Here, the trial court imposed the upper term sentence based on defendants numerous prior convictions. The record established defendant had sustained prior convictions for battery, criminal threats, and fighting in public. Counting the number of defendants prior offenses falls within the recidivism exception. It does not relate to the commission of the offense and the procedural safeguards attached to the facts of the prior conviction remain intact. Counting the number of prior convictions requires no subjective or qualitative assessment of the prior convictions. It merely requires the fact that they exist, a fact which the court is allowed to determine. Since the trial court may permissibly determine the fact of a prior conviction, it may also determine the number of such prior convictions.

Similarly, unsatisfactory performance on probation and committing an offense while on probation are factors which arise from the fact of a prior conviction. The recidivism exception has been interpreted broadly by many courts to encompass other facts relating to a defendants recidivism. (See People v. McGee (2006) 38 Cal.4th 682, 706-709.)

Probation is defined as the suspension of the imposition or execution of a sentence and the order of conditional and revocable release in the community under the supervision of a probation officer. (Pen. Code, 1203, subd. (a).) Thus, by its very nature, probation relates to the fact that the defendant has a prior conviction. Furthermore, facts related to defendants status as a probationer can be easily established by reference to criminal court records (People v. Yim (2007) 152 Cal.App.4th 366, 370-371), involve the type of inquiry that judges traditionally perform as part of the sentencing function (People v. McGee, supra, 38 Cal.4th at p. 709), and does not relate to the commission of the offense, but goes to the punishment only (Almendarez-Torres, supra, 523 U.S. at p. 244 [140 L.Ed.2d at p. 368]). (See also Yim, at pp. 370-371.)

The mere recitation of [defendants] dates of conviction and releases on [probation] demonstrate, as a matter of law, that he committed new offenses while on [probation]. Thus he performed poorly on [probation]. [Citation.] No trial court or jury could rationally find otherwise. As a result, these factors fall within the Apprendi exception to the jury trial right. The trial court did not violate [defendant]s Sixth Amendment rights by imposing the upper term without these findings by a jury. (People v. Yim, supra, 152 Cal.App.4th at p. 371.) Under this reasoning, the fact that defendant was on probationat the time of the offense falls within the recidivism exception to Cunningham.

III

Use Of The Prior Conviction

Defendant next contends if he was not entitled to a jury trial on the factors used to aggravate his sentence because they were based on the fact of a prior conviction, then double jeopardy requires the upper term sentence to be reduced because he was punished with a consecutive term for the same prior conviction. Again, we are not persuaded.

As regards federal double jeopardy principles, [t]he Double Jeopardy Clause protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the same offense after conviction. And it protects against multiple punishments for the same offense. [Citation.] (Brown v. Ohio (1977) 432 U.S. 161, 165 [53 L.Ed.2d 187, . . .], italics added.) The first two categories of protection afforded by the double jeopardy clause, by their express terms, are clearly not implicated here because we are directly concerned only with multiple convictions in a unitary trial, not multiple punishments in successive unrelated criminal proceedings. Likewise, with regard to the third category of double jeopardy protection--the prohibition of multiple punishments for the same offense (432 U.S. at p. 165)--the Supreme Court has made clear that [t]he [Double Jeopardy] Clause protects only against the imposition of multiple criminal punishments for the same offense . . . [citations] . . . and then only when such occurs in successive proceedings, see Missouri v. Hunter, 459 U.S. 359, 366 [74 L.Ed.2d 535, . . .] (1983). (Hudson v. United States (1997) 522 U.S. 93, 99 [. . . 139 L.Ed.2d 450], italics added; original italics omitted.) [] Federal law, like California statutory law, clearly recognizes that cumulative punishment may be imposed under two statutes, even where they proscribe the same conduct, if the Legislature has specifically authorized cumulative punishment. (Missouri v. Hunter [supra,] 459 U.S. [at pp.] 368-369 [74 L.Ed.2d 535, . . .].) (People v. Sloan  (2007) 42 Cal.4th 110, 120-121.)

Here, defendants sentence was enhanced from a concurrent term to a consecutive term under the recidivist statutes. (Pen. Code, 1170.12.) An enhanced sentence imposed on a persistent offender . . . is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes but as a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repetitive one. [Citations.] ([T]he State may undoubtedly provide that persons who have been before convicted of crime may suffer severer punishment for subsequent offences than for a first offense). (Monge v. California (1998) 524 U.S. 721, 728 [141 L.Ed.2d 615, 624].) Defendant here was not punished twice for his prior convictions, rather he is receiving an enhanced punishment for his latest offense, in part, by virtue of the fact that he is a recidivist. (People v. Eribarne (2004) 124 Cal.App.4th 1463, 1469; People v. White Eagle (1996) 48 Cal.App.4th 1511, 1520.)

IV

The Consecutive Sentence For Probation Violation

Defendant also argues that the consecutive sentence imposed for his probation violation must be ordered to run concurrently if the same conviction was used to aggravate the sentence in case No. 06F3055. The statement is correct, as far as it goes. However, it does not go far enough. The record here does not demonstrate the same prior conviction was the sole basis for the imposition of the consecutive sentence. In fact, the record suggests it was not.

[A] trial court has discretion to determine whether several sentences are to run concurrently or consecutively. [Citations.] In the absence of a clear showing of abuse, the trial courts discretion in this respect is not to be disturbed on appeal. [Citation.] Discretion is abused when the court exceeds the bounds of reason, all of the circumstances being considered. [Citations.] (People v. Bradford (1976) 17 Cal.3d 8, 20; Pen. Code, 669.) The criteria affecting the trial courts decision to impose consecutive rather than concurrent sentences are set forth in California Rules of Court, rule 4.425(b), which states: Any circumstances in aggravation or mitigation may be considered in deciding whether to impose consecutive rather than concurrent sentences, except: [] (1) A fact used to impose the upper term; [] (2) A fact used to otherwise enhance the defendants prison sentence; and [] (3) A fact that is an element of the crime may not be used to impose consecutive sentences.

In sentencing defendant, the court noted in addition to defendants prior conviction, status as a probationer, and unsatisfactory performance on probation, the temporal proximity between the two offenses was an additional aggravating factor. That is, only five weeks after he was released from custody, defendant reoffended. The court found this demonstrated a complete and utter lack of acknowledgement by [defendant], number one, that hes both on probation and subject to the jurisdiction of the court and obliged to abide by certain conditions of probation but also more fundamentally that he has an obligation to the victim in this case whom he has violated on previous occasions. [] And it[s] just that to me speaks to a certain attitude and frame of mind by [defendant] that is a factor I find to be in aggravation.

Thus, the record makes clear that there were a number of factors upon which the court relied in deciding to run defendants sentence consecutively, not solely defendants prior conviction. Accordingly, the court did not abuse its discretion in sentencing defendant to consecutive terms.

V

Presentence Credits

Defendant initially argued that he was entitled to eight additional days of presentence credits. The People conceded defendant was entitled to additional presentence credits, but disagreed as to the number of days, arguing he was entitled only to three days of additional presentence credit. Defendant then withdrew his argument. We accept the Peoples position on this point.

On September 22, 2006, defendant was awarded 225 days of actual custody credit, plus 112 days of conduct credit, for a total of 337 presentence credits. On September 25, 2006, the probation department submitted a corrected calculation of custody credits, adding five days. The court modified the sentence to reflect those additional five days. As the People note, defendant should have been granted an additional three days, rather than five days, for the days he spent in custody from September 22, 2006, to September 25, 2006.

[T]he trial court, having modified defendants sentence on remand, was obliged, in its new abstract of judgment, to credit him with all actual days he had spent in custody, whether in jail or prison, up to that time. As we have seen, the courts duty in this respect arose from [Penal Code] section 2900.1, which specifies that when a sentence is modified while in progress, the time already served shall be credited upon any subsequent sentence [the defendant] may receive upon a new commitment for the same criminal act or acts. (People v. Buckhalter (2001) 26 Cal.4th 20, 37.) Accordingly, we will correct the sentence and order the trial court to modify the abstract accordingly. Additionally, we note an error in the abstract of judgment that requires correction. The abstract incorrectly reflects the second filed case No. as 06F519, rather than 06F516. The abstract of judgment must be corrected accordingly.

DISPOSITION

The judgment is modified to award defendant three additional days of presentence custody credits. The trial court shall forward a certified copy of the amended abstract of judgment with the corrected case No. to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

ROBIE , J.

We concur:

BLEASE , Acting P.J.

MORRISON , J.

Publication Courtesy of San Diego County Legal Resource Directory.

Analysis and review provided by El Cajon Property line Lawyers.

San Diego Case Information provided by www.fearnotlaw.com

^* Pursuant to California Rules of Court, rule 8.1110, this opinion is certified for publication with the exception of parts II through V of the Discussion.

^[1] Apparently these were sexual photographs and videos defendant had taken.

^[2] In pertinent part, CALJIC No. 2.50.02 states: Evidence has been introduced for the purpose of showing that the defendant engaged in an offense involving domestic violence [on one or more occasions] other than that charged in the case. [] . . . [] If you find that the defendant committed a prior offense involving domestic violence, you may, but are not required to, infer that the defendant had a disposition to commit [another] [other] offense[s] involving domestic violence. If you find that the defendant had this disposition, you may, but are not required to, infer that [he] [she] was likely to commit and did commit the crime [or crimes] of which [he] [she] is accused. [] However, if you find by a preponderance of the evidence that the defendant committed a prior crime or crimes involving domestic violence, that is not sufficient by itself to prove beyond a reasonable doubt that [he] [she] committed the charged offense[s]. If you determine an inference properly can be drawn from this evidence, this inference is simply one item for you to consider, along with all other evidence, in determining whether the defendant has been proved guilty beyond a reasonable doubt of the charged crime. [] [[Unless you are otherwise instructed, y][Y]ou must not consider this evidence for any other purpose.]

^[3] As given in, and relevant to this case, CALCRIM No. 852 states, The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically the incident of June 23rd, 2004 and January 5th 2006. . . . [] . . . [] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not met this burden of proof, you must disregard this evidence entirely. [] If you decide that the defendant committed the uncharged domestic violence, you may but are not required to conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit criminal threats and/or domestic battery as charged here. [] [I]f you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of criminal threats and/or domestic battery. The People must still prove each element of every crime charged beyond a reasonable doubt.