P. v. Davis

Filed 7/2/07 P. v. Davis CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Sacramento)

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A jury convicted defendant Eric Deshawn Davis of corporal injury to a spouse in violation of Penal Code section 273.5, subdivision (a), and found true an allegation that he suffered a prior conviction. (Pen. Code, 273, subd. (e)(1); unspecified section references that follow are to the Penal Code.) Defendant admitted a prior strike ( 667, subds. (b)-(i) and 1170.12) and was sentenced to an aggregate prison term of 10 years.

On appeal, defendant contends the trial courts failure to adequately articulate its reasons for denying his request made pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)motion was error, and that it abused its discretion in not striking the prior strike. He also contends the trial courts imposition of the upper term violated his Sixth and Fourteenth Amendment rights under Cunningham v. California (2007) 549 U.S. ___ [166 L.Ed.2d 856] (Cunningham). We affirm the judgment.

Facts and Proceedings

We recount the evidence in the light most favorable to the judgment. (People v. Horning (2004) 34 Cal.4th 871, 901.)

In January 2005, defendant lived with his wife (the victim) and their three children in Rancho Cordova. On June 22, 2005, the defendant and his wife had an argument that turned into a physical altercation. The defendant called his wife a bitch several times and began pushing her down the hallway. He grabbed both of her arms, said it looked like she was looking for an ass whipping, and shoved her into the bedroom, causing her to fall back onto the bed. As the victim tried to get up, the defendant grabbed her by the throat and shoved her back down. He straddled her body, placed his other hand around her neck and began to choke her, cutting off her air supply. The victim begged for her life as he held her down and continued to choke her.

The defendant eventually stopped choking the victim when he got up and went out of the apartment after one of the children. Once the defendant was outside, the victim closed and locked the door behind him and went into the bedroom to call 911. Before she finished dialing, the defendant kicked in the front door. Walking down the hallway towards her, the defendant told her he was going to beat her ass for disrespecting him and calling the police and head-butted her, knocking her backward onto the floor. As the victim tried to escape, the defendant dragged her into the bedroom, climbed on top of her, straddled her arms to hold her down and began hitting and slapping her. When the victim realized her ear was bleeding, the defendant got off of her and walked into the living room and then into the bathroom and closed the door. The victim dialed 911, but hung up without speaking to an operator. When police arrived, they observed visible injuries on the victim, including a raised lump near her ear, swelling near her left eye and abrasions to both sides of her neck and throat.

The defendant was charged with corporal injury on a spouse (count one) and felony removal of a telephone line (count two). It was also alleged that defendant suffered a prior conviction for spousal abuse within the meaning of section 273.5, subdivision (e)(1), and that he suffered a prior conviction for robbery, a strike within the meaning of sections 667, subdivision (b)-(i) and 1170.12. As a result of those charges, a violation of probation was also filed against the defendant in case No. 05F00742.

Several police officers testified at trial regarding prior incidents of domestic violence by the defendant against this victim.

In February 2002 defendant reportedly choked the victim. In March 2002 the victim reported that, during an argument with defendant in the car, she pulled the phone charger out of the cigarette lighter and the defendant backhanded her in the mouth. In April 2002 defendant reportedly threw his keys across the room, smashed the computer and hit the victim in the mouth. In September 2002 defendant reportedly put both hands around the victims neck and choked her. In October 2002 defendant reportedly kicked the door in and slapped the victim in the face. In December 2002 defendant reportedly straddled the victim on the bed, hit her in the head and face with a closed fist, tied a computer cord around her neck, choked her, and whipped her legs with the cord. In January 2005 defendants daughter reported that, when she and her brother heard the victim (their mother) being choked and then broke into the victims bedroom with a butter knife, they found the defendant on top of the victim, choking and hitting her in the face. No charges were filed after any of these occurrences.

The victim also testified at trial, recanting many of the facts as previously reported by her to police at the time of the assault. Admitting that she did not want the defendant to go to prison and claiming often that she could not recollect the incident in question, she testified that she made false allegations against defendant to police and stated that she had been the aggressor, instigated not only the present offense but also many of the prior uncharged incidents.

At the conclusion of trial, the defendant stipulated to the prior conviction for spousal abuse and, outside the presence of the jury, he admitted the prior strike. Pending the jurys verdict, the court took the alleged violation of probation in case No. 05F00742 under submission.

The jury found defendant guilty of corporal injury on a spouse, and further found that he suffered a prior conviction for that same offense. Defendant was acquitted of the charge of removing a telephone line.

At the sentencing hearing, defendant requested that the court strike his prior strike. After considering the moving and opposing papers filed by the parties, the court denied the motion, stating as follows: The Court is aware of its discretion to strike the prior conviction under the Romero case, and exercising that discretion, the Court is declining to strike that prior conviction. The Court does not find that the totality of the circumstances in this case would warrant the striking of that prior conviction, and I will allow it to stand. Finding the aggravating factors outweighed those in mitigation, and based specifically on the fact that [d]efendant was on probation when the crime was committed, the court sentenced defendant to the upper term of five years, doubled as a result of the strike pursuant to section 667, subdivision (b)(1), for an aggregate prison term of 10 years.

Based on that sentence, the court terminated probation in pending case No. 05F00742.

Defendant filed a timely notice of appeal.

Discussion

I

Defendant first contends the trial court erred by failing to adequately articulate its reasons for denying his Romero motion. The People argue defendant forfeited his claim by failing to raise it at trial. We agree.

An appellate court will ordinarily not consider procedural defects or erroneous rulings, in connection with relief sought or defenses asserted, where an objection

could have been but was not presented to the lower court

by some appropriate method . . . . The circumstances may

involve such intentional acts or acquiescence as to be appropriately classified under the headings of estoppel or [forfeiture] . . . . Often, however, the explanation is simply that it is unfair to the trial judge and to the adverse party to take advantage of an error on appeal when it could easily have been corrected at the trial. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1; see In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [forfeiture is the correct legal term for loss of right based on failure to assert it in a timely fashion].)

The purpose of the forfeiture doctrine is to encourage a defendant to bring errors to the attention of the trial court, so that they may be corrected or avoided and a fair trial

had. . . . (People v. Walker (1991) 54 Cal.3d 1013, 1023.) No procedural principle is more familiar to this Court than that a constitutional right, or a right of any other sort,

may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it. [Citation.] [Citation.] (People v. Saunders (1993) 5 Cal.4th 580, 589-590.)

Defendant remained silent in the face of the courts denial of his Romero motion, making no objection to either the decision or the reasoning given by the court. As a result, his claim is forfeited on appeal.

In any event, the claim fails on the merits. While section 1385 requires that the court state its reasons for the dismissal, there is no such requirement where the court denies a request to dismiss a prior strike. (See 1385, subd. (a); Romero, supra, 13 Cal.4th at p. 531; People v. Orin (1975) 13 Cal.3d 937, 945.)

Defendant next contends that the courts denial of his Romero motion was an abuse of discretion because his criminal convictions are few, consisting of only four convictions prior to the instant case, there was a 10-year gap between his 1995 conviction and his first conviction for spousal abuse, and he expressed remorse to the victim and admitted the crime to probation. He also urges that his criminality is no doubt due to his methamphetamine addiction. We are not persuaded.

A trial court has the discretion to strike a prior serious felony conviction for purposes of sentencing only if the defendant falls outside the spirit of the three strikes law. ( 1385; People v. Williams (1998) 17 Cal.4th 148, 161; Romero, supra, 13 Cal.4th at pp. 529-530.) In deciding whether to do so, the court must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the schemes spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies. (Williams, supra, at p. 161.)

The trial courts failure to . . . strike a prior conviction allegation is subject to review under the deferential abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).) In reviewing for abuse of discretion, we are guided by two fundamental precepts. First, [t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve the legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review. [Citations.] Second, a decision will not be reversed merely because reasonable people might disagree. An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge. [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it. (Id. at pp. 376-377.)

Thus, only in an extraordinary case--where the relevant factors described in Williams, supra, 17 Cal.4th 148, manifestly support the striking of a prior conviction and no reasonable minds could differ would the failure to strike be an abuse of discretion. (Carmony, supra, 33 Cal.4th at p. 378.)

The present felony for which the defendant was convicted was serious, causing fear and injury to the victim and no doubt trauma to his five-year old child, who witnessed the assault and ran out of the apartment. The present offense is magnified by evidence offered at trial of no less than seven prior incidents in which the defendant similarly assaulted this same victim.

While the defendant minimizes his prior convictions, it is worth noting the similarity in defendants prior criminal acts to those of the present offense. In 1993, defendant was convicted of a robbery in which the victim, a store clerk, was grabbed by his neck and shoved through a storage door, causing a swollen and bloody lump on his forehead. Again, in 1995, defendant was convicted of a petty theft during which he struck a security guard in the face. In 2005, just months before the current offense, defendant was convicted of misdemeanor spousal abuse after punching this same victim in the face and head six times and strangling her. It is that crime for which he was serving probation when he committed the present offense.

Defendants apology to the victim and admission to probation that he committed the crime is of little consequence here, given the laundry list of prior incidents involving similar violent conduct against this victim. We are also unpersuaded by defendants claim of drug addiction, particularly in light of defendants statement to probation that he had not used methamphetamine since 2004and the fact that there was no evidence to suggest defendant was under the influence during the commission of the present offense.

Given the nature and circumstances of his present and prior crimes, and the fact that his assaults on this victim appear to be unrelenting despite intervention from law enforcement and the judicial system, we do not find the trial courts decision to have been arbitrary or irrational.

II

We also reject defendants claim that imposition of the upper term for corporal injury to a spouse ran afoul of the Sixth Amendment of the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466 [147 L.Ed.2d 435] (Apprendi) and Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403] (Blakely).

In Apprendi, the United States Supreme Court held that [o]ther 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. (Apprendi, supra, 530 U.S. at p. 490 [147 L.Ed.2d at p. 455].) For this purpose, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant. Thus, when a sentencing courts authority to impose an enhanced sentence depends upon additional fact findings, there is a right to a jury trial and proof beyond a reasonable doubt on the additional facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d at pp. 413-414].)

In Cunningham, supra, 549 U.S. ___ [166 L.Ed.2d 856], the United States Supreme Court held that by assign[ing] to the trial judge, not to the jury, authority to find the facts that expose a defendant to an elevated upper term sentence, Californias determinate sentencing law violates a defendants right to trial by jury safeguarded by the Sixth and Fourteenth Amendments. (Id. at p. ___ [166 L.Ed.2d at p. 864], overruling People v. Black (2005) 35 Cal.4th 1238 (Black) on this point, vacated in Black v. California (Feb. 20, 2007) ___ U.S. ___ [167 L.Ed.2d 36].)

As a preliminary matter, the People argue defendant forfeited his claim by failing to object at trial. We disagree. Defendant was sentenced on January 20, 2006. Before that, on June 20, 2005, the California Supreme Court had decided Black, supra, 35 Cal.4th 1238, which held that a defendant does not have a right to have a jury determine aggravating factors used to impose the upper term. (Id. at p. 1244.) Because Black was controlling law at the time of defendants sentencing, he was not required to make a futile objection at that time. It is pointless to require a defendant to ask a trial court to overrule a decision of the California Supreme Court. (Moradi-Shalal v. Firemans Fund Ins. Companies (1988) 46 Cal.3d 287, 292, fn. 1.)

In any event, defendants claim fails on the merits. The trial court specifically cited as the sole basis for imposing the upper term that defendant was on probation when the crime was committed. As pointed out in Apprendi, Blakely, and Cunningham, the Sixth Amendment jury trial guarantee does not apply to prior convictions that are used to impose greater punishment. (E.g., Cunningham, supra, 549 U.S. at p. ___ [166 L.Ed.2d at p. 864].) That exception applies also to an issue of recidivism which enhances a sentence and is unrelated to an element of a crime. (People v. Thomas (2001) 91 Cal.App.4th 212, 223.) For example, the trial court may determine and rely on the defendants probation or parole status to impose the upper term. (Cf. United States v. Fagans (2d Cir. 2005) 406 F.3d 138, 141-142; United States v. Corchado (10th Cir. 2005) 427 F.3d 815, 820 [the prior conviction exception extends to subsidiary findings such as whether a defendant was under court supervision when he or she committed a subsequent crime].)

The trial court implicitly found defendant was on probation at the time of the offense when it took the probation violation allegation in case No. 05F00742 under submission pending the outcome of the instant case and ultimately terminated that probation consistent with the sentence imposed here. Indeed, defendant implicitly admitted his status as a probationer by acquiescing, without objection, to the adjudication of the alleged probation violation in conjunction with the current offense. There was no error.

Disposition

The judgment is affirmed.

HULL, J.

We concur:

BLEASE , Acting P.J.

ROBIE , J.

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