P. v. Merchant

Filed 7/19/07 P. v. Merchant CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Carl E. Davis, Judge (Retired judge of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed.

John L. Staley, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, Janelle Marie Boustany, Deputy Attorney General, for Plaintiff and Respondent.

A jury found defendant and appellant JeCarr Merchant (hereinafter defendant) guilty of criminal threats (Penal Code,^[1] 422; count 1), and felon in possession of a firearm, to wit, a handgun. ( 12021, subd. (a); count 2.) The jury also found that defendant, in the commission of the offense charged under count 1 of the information, did not personally use a firearm. ( 12022.5, subds. (a)(1) & 1192.7, subd. (c)(8).) The court sentenced defendant to four years and eight months in state prison.

Defendant raises various claims of error. First, he contends that the judgment of guilt should be reversed because the trial court refused to give jury instructions on self-defense. He maintains that the victim was the initial aggressor and that defendant uttered threats in self-defense. We find that an instruction on self-defense was not supported by substantial evidence.

Second, defendant contends the trial court committed prejudicial error by refusing to admit evidence demonstrating bias of the victim against the defendant. He maintains that a temporary restraining order issued on behalf of the victims wife against the victim should have been admitted into evidence. We reject this contention and find the trial court properly excluded the temporary restraining order.

Third, defendant contends that trial court committed numerous evidentiary errors by allowing cross-examination of defendant on (1) his extortion conviction, (2) gang membership, (3) violation of probation and/or parole, and (4) being unemployed. We find the trial court committed harmless error in admitting the details of defendants felony conviction and that he was incarcerated in state prison. The trial court cured the admission of gang membership by an admonition to the jury. We also find that the admission of evidence concerning a violation of probation and/or parole and employment status were waived for failure to object and did not constitute ineffective assistance of counsel for lack of a demonstration of prejudice.

Lastly, defendant claims the trial court erred in sentencing him to the upper term for count 1, and imposing a consecutive sentence for count 2 in violation of Blakely v. Washington (2004) 542 U.S. 296 (Blakely).^[2] We find defendant was properly sentenced and affirm the judgment.

FACTUAL AND PROCEDURAL HISTORY

A. Ernest Joness Testimony

Ernest Jones (Jones) lived with his wife, Adonni Harps-Jones (Harps-Jones) and her three children, including defendant. Defendant slept on the couch downstairs in the family room, and kept his belongings in a nearby closet.

On January 12, 2006, at 11:30 a.m., Jones, while in his upstairs bedroom, had a feeling that something was not right and was lead by a spirit to the downstairs couch.^[3] Under the armrest of the couch, he found a silver revolver with a black handle. He removed the weapon with a cloth so he wouldnt get his fingerprints on it, and secured it in his upstairs bedroom.

Later that evening, Jones was on his bed in the bedroom watching a basketball game when Harps-Jones asked him if he had anything belonging to defendant. Jones responded in the affirmative, and gave her the gun. He also told her that he wanted defendant to leave the house. After Harps-Jones left the bedroom, Jones shut the door and returned to the bed to continue watching the basketball game.

A few minutes later, defendant busted and rush[ed] into the bedroom and stood directly in front of the bed, blocking Joness view of the television. In an angry voice, defendant yelled what the fuck do you mean youre going through my shit. Jones noticed a bulge in defendants pocket, which he thought was the gun. He told defendant that he had not gone through defendants belongings, to which defendant replied, Ill blow your mother fuckin head off. Jones told defendant to leave his bedroom and instead, defendant took a step towards him. Jones got up off the bed and grabbed an aluminum baseball bat that was lying next to the bed.

Jones, with the bat at his side, stepped towards defendant. Defendant repeated his threat to shoot Jones while backing up towards the door. He stepped outside the doorway. Jones followed defendant until he was standing just outside the bedroom, and defendant began to back down the stairs. Jones repeated that defendant needed to leave and, while still backing down the stairs, defendant pulled the gun out of his pocket and pointed it at Joness face. Defendant twice stated Ill put a bullet in your mother fuckin head . . . . The defendant then walked downstairs. Jones returned to his bedroom, shut and locked the door, and called 911.

Jones felt threatened, took the threats seriously, and thought he was going to be killed or seriously hurt.

B. Defendants Testimony

Defendant returned home between 8:30 and 9:00 p.m., intending only to make a quick run into the house to retrieve $2,000 he had left in a slot on the armrest of the couch in the family room. When he couldnt locate the money, he told his mother, Harps-Jones, that Jones must have taken it. She said she would ask Jones, and went upstairs. When she returned, she told defendant that Jones did not know what defendant was talking about and didnt have the money.

Defendant went upstairs, politely opened the bedroom door and stood in the doorway. Jones, who was lying in bed, immediately jumped up and grabbed a baseball bat. Defendant asked Jones why you going through my [shit]? and Jones responded Im not going through your stuff. Defendant asked where his money was, and Jones walked towards him telling him he needed to leave. Defendant backed out of the bedroom door, folded his arms and said, Im not going anywhere until you give me my stuff. They continued to argue, and Jones moved closer to defendant. Harps-Jones called to them to stop arguing; defendant turned away and left. Defendant testified that he was not angry; he was mad, but not out of control. He further testified that he did not have a gun nor did he point a gun at Jones. The only thing he did have was his brothers silver/gray cell phone, which he believed he had previously thrown behind the couch.

DISCUSSION

A. Self-Defense

Defendant contends the trial court should have instructed on self-defense. He claims when Jones grabbed the baseball bat in a hostile manner, defendant was warranted in using threats as self-defense. The trial court refused an instruction on self-defense finding, that it would be based upon speculation, since the defendant testified he had not said or done anything threatening and had just turned around and left. We agree.

It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence. [Citations.] The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case. [Citation]. (People v. Breverman (1998) 19 Cal.4th 142, 154.)

A trial court must instruct on self-defense only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case. (People v. Maury (2003) 30 Cal.4th 342, 424.)

Defendant did not rely on a self-defense theory at trial. He testified that he never threatened Jones; that he heeded Harps-Jones request that they stop arguing and merely left the bedroom. Defendant also testified that, not only did he not threaten Jones, he was never mad or angry. Further, even if the jury believed defendants testimony that Jones grabbed the baseball bat as defendant entered the bedroom, and before defendant said anything, the giving of a self-defense instruction would be inconsistent with defendants theory that he never uttered a threat in response. The trial court, therefore, correctly denied defendants request for a self-defense instruction.

B. Right of Confrontation

Defendant contends the trial court committed prejudicial error by excluding cross-examination of Jones concerning a temporary restraining order (the restraining order) his wife had filed against him. Defendant maintains the restraining order was relevant for two reasons: (1) to demonstrate Joness violent nature, and (2) to show that Jones was biased against defendant because Jones held defendant responsible for the demise of his marriage. The trial court excluded the restraining order as irrelevant and prejudicial.

A trial court is given a wide latitude (People v. Watson (1956) 46 Cal.2d 818, 827) in controlling the scope of cross-examination of a witnesss credibility. (People v. Burton (1961) 55 Cal.2d 328, 343.) However, a witness cannot be cross-examined on matter that is irrelevant or immaterial. (People v. Gloria (1975) 47 Cal.3d 1, 49.) The trial court determines questions of relevancy and admissibility. The decision will not be disturbed on appeal in the absence of a manifest abuse of discretion or clear error of law. (People v. Alfaro (1976) 61 Cal.3d 414, 423.)

Defendant argued that Harps-Jones would testify in accordance with the declaration attached to her restraining order. Defendants offer of proof was that, on the day following the confrontation between defendant and Jones, Harps-Jones told Jones he had to leave the house. A verbal argument ensued and quickly escalated. They began struggling over a bat Harps-Jones had grabbed, and the children became involved in removing the bat from Jones.

The trial court held that cross-examination on the restraining order was not relevant until the petition had been adjudicated.^[4] The courts ruling was correct. The ex parte issuance of the restraining order was not relevant to whether Jones was biased against defendant due to the demise of his marriage. The mere issuance of the restraining order, in and of itself, does not have any tendency in reason to be relevant to Joness credibility. (Evid. Code, 210.)

Next defendant argues he was denied his right of confrontation by the trial courts exclusion of Harps-Joness restraining order against Jones. He maintains the trial court abused its discretion because the evidence was more probative than prejudicial under Evidence Code section 352, and any prejudice could have been mitigated by a limiting instruction. The jury would have received a significantly different impression of Joness credibility if he had been confronted with the restraining order.

Evidence Code section 352 provides: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. We review a trial courts ruling under section 352 for an abuse of discretion. (People v. Lewis (2001) 25 Cal.4th 610, 637.) An abuse of discretion is found when the trial courts ruling falls outside the bounds of reason. (People v. Ochoa (1998) 19 Cal.4th 353, 408.)

The Sixth Amendment to the federal Constitution guarantees the defendant in a criminal prosecution the right to be confronted with the witnesses against him. In almost identical words, the California Constitution, in section 15 of article I, also secures the right of confrontation. The primary interest protected by the confrontation guarantee is the right of cross-examination, which is the principal means by which the believability of a witness and the truth of his testimony are tested. [Citation.] Because cross-examination implements the constitutional right of confrontation, a trial court should give the defense wide latitude to cross-examine a prosecution witness to test credibility. [Citations.] But the trial court retains discretion to restrict cross-examination that is repetitive, prejudicial, confusing of the issues, or of marginal relevance. [Citation.] The test for determining whether a trial court has abused its discretion in restricting defense cross-examination of a prosecution witness is whether a reasonable jury might have received a significantly different impression of the witness's credibility had the excluded cross-examination been permitted. [Citations.] (People v. Anderson (2001) 25 Cal.4th 543, 608.)

We conclude the trial court did not abuse its discretion in limiting the cross-examination of Jones.

First, the trial court undertook the appropriate analysis of the probative and prejudicial effects of the evidence, pursuant to Evidence Code, section 352. The court found that the restraining order was of marginal probative value compared to its overwhelming prejudicial and confusing effect caused by the fact the restraining order had never been adjudicated. The trial court conducted a proper Evidence Code section 352 balancing test and its analysis correctly revealed the ex parte restraining order would have been prejudicial and confusing to the jurors.

Second, a review of the record reveals that the jury would not have received a significantly different impression of Joness credibility if he would have been confronted with the restraining order. Even though reference to the restraining order was excluded, Harps-Jones testified (1) Jones did not want defendant to live with the family; (2) they had argued about the living arrangements; (3) the incident with defendant on January 12, 2006, was one of the causes of their separation; and (4) they separated the following day. The court properly excluded the prejudicial aspect of the restraining order and admitted relevant evidence of the effect of the incident on the marriage for the jury to consider in evaluating Joness testimony.

Lastly, defendant contends Davis v. Alaska (1974) 415 U.S. 308 demonstrates the trial court erred by excluding evidence of the restraining order. In Davis, supra, the trial court excluded cross-examination of a key prosecution witness, on the witnesss juvenile delinquency and probationary status. The Supreme Court refused, finding that the probationary status of the witness may reveal possible bias, prejudices or ulterior motives of the witness that relate directly to the issues. (Id., at p. 316.) There is one major factual difference between the present case and Davisin Davis, the witness had been adjudicated a delinquent and was on probation. The Supreme Courts holding allowed cross-examination on evidence effecting bias that had been fully heard and adjudicated. In the instant case, the restraining order had been issued, but had not been adjudicated at a petition hearing. Therefore, Davis does not support defendants position.

C. Evidentiary Rulings

1. Felony Conviction

Defendant contends the trial court erred in admitting the details of a prior felony conviction of defendant. Defendant testified that at the age of 18 he pled guilty to extortion, did not use force or fear in committing the extortion, and was sentenced to state prison. Defendant agrees that he may be cross-examined on whether he was convicted of a felony and the underlying nature of the particular crime.

The scope of inquiry when a criminal defendant is impeached with evidence of a prior felony conviction does not extend to the facts of the underlying offense. (People v. Heckathorne (1988) 202 Cal.App.3d 458, 462.)

The only details of the felony conviction testified to by the defendant were that he was 18 when convicted, he didnt use fear or force, and that he went to state prison. Any error in the admission of this impeachment evidence was harmless. Error in the admission of impeachment evidence justifies reversal only if it resulted in a miscarriage of justice. (Evid. Code, 354.) A judgment may be overturned only if it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Watson (1956) 46 Cal.2d 818, 836.)

The admission of defendants age at the time of his conviction, or that he went to state prison, would have had minimal, if any, impact on the jurys assessment of his credibility. Therefore, it is not reasonably probable that the jury would have reached an outcome more favorable to the defendant.

2. Gang Membership

Defendant contends he was prejudiced by testimony he was a gang member. On cross-examination, defendant was asked the following:

[PROSECUTOR:] Now, isnt it true, not only did you commit extortion, . . . but you are a gang member; right?

[DEFENSE COUNSEL:] Objection.

[DEFENDANT:] I was previously a gang member. Yes I was.

[THE COURT:] Just a minute. Let me rule before you answer these questions.

[DEFENSE COUNSEL:] Your honor, can we be heard at side bar?

[THE COURT:] Yes.

After the side bar, the court gave the following admonition to the jury:

[THE COURT:] [T]he reference to gang is ordered stricken. You are to disregard it and the objection is sustained.

A jury is presumed to have followed an admonition to disregard improper evidence particularly where there is an absence of bad faith. [Citations.] It is only in the exceptional case that the improper subject matter is of such a character that its effect . . . cannot be removed by the courts admonitions. [Citation.] [Citation.] (People v. Olivencia (1988) 204 Cal.App.3d 1391, 1404.)

We find that the courts admonition cured any prejudice. The court specifically instructed the jury to disregard any reference to gang membership and ordered the reference stricken from the record. The admonition was given promptly, in detail, and in no uncertain terms. We presume that the jury followed the courts admonition.

3. Violation of Probation or Parole

Defendant contends that on cross-examination he testified, without objection, that he was on probation or parole for taking his girlfriends vehicle without her permission. He argues the evidence was not relevant and he received ineffective assistance of counsel for his attorneys failure to object.

In order to establish a claim of ineffective assistance of counsel, defendant must demonstrate (1) counsels performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsels deficient representation prejudiced the defendant, i.e., there is a reasonable probability that, but for counsels failings, defendant would have obtained a more favorable result. [Citations.] A reasonable probability is one that is enough to undermine confidence in the outcome. [Citations.] (People v. Dennis (1998) 17 Cal.4th 468, 540-541, citing, among others, Strickland v. Washington (1984) 466 U.S. 668, 687, 694.) In evaluating a counsels actions at trial, A court must indulge a strong presumption that counsels acts were within the wide range of reasonable professional assistance. [Citation.] Thus, a defendant must overcome the presumption that the challenged action might be considered sound trial strategy under the circumstances. [Citation.] Nevertheless, deference is not abdication; it cannot shield counsels performance from meaningful scrutiny or automatically validate challenged acts and omissions. [Citation.] (People v. Dennis, supra, 17 Cal.4th at p. 541.)

In order to prevail on a claim of ineffective assistance of counsel a defendant must establish both deficient performance and resulting prejudice. Defendants sole contention that the admission of his violation of probation or parole was prejudicial is that he was depicted as an irresponsible person and thief from his own girlfriend. Defendant has not established he would have had a more favorable result had his counsel objected.

Defendant entered into a stipulation wherein he agreed, for the purpose[s] of this trial and count 2 that he was a convicted felon. Count 2 charged defendant with being a felon as a result of a prior conviction for possessing a controlled substance. (Health. & Saf. Code, 11350, subd. (a).) Consequently, the fact defendant had been on parole would not have been a damaging surprise to the jurors.

Even assuming counsels deficient performance, it is not reasonably probable that the jury would have reached a more favorable result if the evidence of defendants violation of probation or parole had been excluded. While evidence of a prior criminal conviction may be prejudicial^[5] his stepfathers taped conversation with the dispatcher where he stated defendant had threatened him with a gun and to hurry, his brothers taped statement to the officer that defendant had a gun, and his sisters admission to the female officer that she saw defendant with a silver gun, provides overwhelming evidence that he made criminal threats to Mr. Jones and was a felon in possession of a firearm.

4. Employment Status

Defendant contends his trial counsel rendered ineffective assistance when she failed to object to his unemployment status. He asserts revealing his status was irrelevant and portrayed him in a bad light.

Defendant failed to cite any authority for the proposition that his attorneys failure to object to his unemployment status was ineffective assistance. Failure to support his argument with any citation to legal authority waives the matter on appeal. (People v. Stanley (1995) 10 Cal.4th 764, 793.)

Even assuming the failure to object manifests deficient performance, defendant fails to establish any resulting prejudice. The exclusion of defendants unemployed status would not have resulted in a more favorable result. Accordingly, we must reject this claim of ineffective assistance of counsel.

D. Sentencing Errors

The trial court sentenced defendant to a total of four years and eight months in state prison. On the criminal threat charge (count 1), it sentenced him to the upper term of three years. It selected the upper term because defendant was on parole at the time of the offense and had used a gun. On the charge of a felon in possession of a firearm (count 2), the trial court sentenced him to one-third the midterm of two years, or eight months. It ordered the sentence on count 2 be served consecutive to count 1. The trial court also imposed one year for one of the two prior prison terms.

Defendant contends the trial court erred in sentencing him to the upper term on the criminal threat count in violation Blakely, supra, 542 U.S. 296, and ordering the sentence on count 2 to be served consecutive to count 1.

1. Imposition of the Upper Term

In Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856], the U.S. Supreme Court held that midterm is the statutory maximum or highest term a judge may imposed based on the facts found in the jurys verdict alone, without a judge finding any additional aggravating facts. (Id., 127 S.Ct. at pp. 870-871.) Since the midterm, not the upper term, is the statutory maximum a judge may impose based on the facts reflected in the jurys verdict alone, the trial court could not impose the upper term on the principal robbery count. If the jurys verdict alone does not authorize the sentence, if, instead, the judge must find an additional fact to impose the longer term, the Sixth Amendment requirement is not satisfied. (Id. at p. 869.)

Here, the trial court imposed the upper term for two reasons: defendant used a gun to make a criminal threat and defendant committed the offenses while on parole. The jury found defendant guilty on count 2being a felon in possession of a firearm. Since the jury found defendant possessed the firearm beyond a reasonable doubt, the Sixth Amendment is satisfied. It was the jury, and not the trial judge, who found defendant had a gun. The trial judge merely used that fact, found by the jury, to impose the upper term. As the jurys verdict alone authorizes the upper term, imposition of the upper term comported with Cunningham.

Since the jurys guilty verdict on the possession of a firearm by a felon charge is sufficient to impose the upper term, we need not decide whether the trial courts finding that defendant violated his parole authorized imposing the upper term.^[6]

2. Consecutive Sentence

Defendant also complains that imposing a consecutive sentence on count 2 violates Blakely and Cunningham because the jury did not determine beyond a reasonable doubt the prosecution had proven the facts necessary to permit the judge to impose consecutive sentences. He argues that he was entitled to a jury finding whether his possession of a gun was a separate act of violence, independent of the criminal threat. He asserts that the decision to impose a consecutive sentence, based on factors such as whether the crimes had independent objectives, separate acts or threats of violence, different locations, or were related in time and space,^[7] should have been determined by a jury and not a judge.

We conclude the trial court could properly sentence defendant to consecutive terms.

The United States Supreme Court in Cunningham 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. (Cunningham, supra, 127 S.Ct. at p. 860, overruling on this point People v. Black (2005) 35 Cal.4th 1238, 1262-1264 (Black), vacated in Black v. California (2007) 549 U.S. ___ [167 L.Ed.2d 36].) Cunningham did not address whether the decision to run separate sentences concurrently or consecutively must be made by the jury.

Black holds that a jury trial is not required on the aggravating factors that justify imposition of consecutive sentences. (Black, supra, 35 Cal.4th at p. 1262.) That holding was not affected by Cunningham, which does not address the distinct issue of imposition of consecutive sentencing for separate crimes. Black is binding on this court and dispositive of defendants claim of sentencing error. (Auto Equity Sales, Inc. v. Superior Court, (1962) 57 Cal.2d 450, 455.)

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ MILLER

J.

We concur:

/s/ RAMIREZ

P. J.

/s/ McKINSTER

J.

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^[1] All further statutory references will be to the Penal Code unless indicated.

^[2] In that defendant filed his brief prior to Cunningham v. California (2007) 539 U.S. ___ [127 S.Ct. 856] (Cunningham), we will construe defendants argument on appeal to include an objection to his sentence based upon a violation of Cunningham.

^[3] Jones testified he was an ordained minister and that a spirit of discernment caused him to go to the sofa.

^[4] If, once the restraining order had been adjudicated at a petition hearing, it would be relevant, is an issue we do not need to resolve.

^[5] See People v. Ewoldt (1994) 7 Cal.4th 380.

^[6] We are aware of a split among the state courts of appeal on this issue. The Third Appellate District in People v. Abercrombie, 2007 Cal.App.LEXIS 863, found that parole is a recidivism factor arising from a prior conviction under Apprendi v. New Jersey (2000) 530 U.S. 466 and Cunningham, thus allowing imposition of the upper term without a jury finding. The Sixth Appellate District in People v. Guess (2007) 150 Cal.App.4th 148, however, held that a trial judges finding that defendant committed the offense while on parole is not a factor that can be used to impose the upper term. (Id. at p. 166) It was necessary for a jury to find defendant was on parole before the upper term may be imposed.

^[7] California Rules of Court, rule 4.425(a).