P. v. Bontemps
Filed 3/2/12 P. v.
Bontemps 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NOT
TO BE PUBLISHED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opinion has not been certified for publication or ordered published for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)
----
THE PEOPLE,
Plaintiff and Respondent,
v.
GREGORY BONTEMPS,
Defendant and Appellant.
C065072
(Super.
Ct. No. 08F06199)
Defendant Gregory
Bontemps appeals from his convictions for spousal
abuse (Pen. Code, § 273.5, subd. (a); statutory citations that follow are
to the Penal Code unless otherwise specified), making
intimidating a witness (§ 136.1, subd. (b)(1)).
He contends the trial court erred in admitting evidence of his criminal
history, counsel was ineffective for failing to object to that evidence, and
the trial court abused its discretion in denying his request that the court
disregard for purposes of sentencing one or both of his prior serious or
violent felony convictions. (
13 Cal.4th 497 (Romero).) We affirm the judgment.
Facts and
Proceedings
In July 2008,
Charlene and defendant, her then husband, got into an argument about her son,
Anthony. Over the next few hours,
Charlene and defendant both drank alcohol and continued to argue. After Charlene fell asleep, defendant woke
her by grabbing her by the hair, pulling her into a sitting position and saying
“Bitch, make me some dinner.” Charlene
fought back and defendant swung her down toward the ground and punched her in
the back and in the nose. Blood gushed
out of her nose covering her hands and face and spreading to her clothing, the
sheets, the bedroom and bathroom floors, furniture, and the walls.
While her nose was
still bleeding, defendant told her several times he would kill her. He also said if she called the police, she
would be “done before they hit the corner.”
He told her if she called her son, he would kill her son as well. These threats frightened Charlene because of
defendant’s “violent criminal past.”
Accordingly, she did not immediately call the police or her son.
Defendant made
Charlene clean the blood off herself, the floors, and the sheets. She continued to follow defendant’s
directions, because she remained afraid of him because of his “violent criminal
past.” After she cleaned up her blood,
defendant told her to lay down, which she did because she remained afraid of
defendant because of his “violent criminal past.” Eventually, she fell asleep. The following morning, when defendant left
the house and went to the store, Charlene called 9-1-1 and defendant’s parole agent to report the previous
evening’s assault. Then she called her
son.
The police took
Charlene’s statement and photographs of her injuries. She had bruises on her leg and back, a
contusion and swelling to her nose, a cut lip, and a sore head. Defendant was arrested away from the home.
Subsequently,
Charlene visited defendant in jail, deposited money into his jail account, and
wrote him letters. In those letters she
told him she still cared for him, but was moving his things out of the
home. Charlene acknowledged that while
defendant was in jail, she cashed some of his worker’s compensation checks and
not all of the money went to defendant.
Charlene underwent domestic
violence counseling, during which defendant wrote her letters trying to
persuade her to drop the case, stay away from court and make herself
unavailable. He assured her “it” would
never happen again. Defendant also
enlisted his mother’s aid in attempting to convince Charlene to drop the
charges against him.
Defendant sent Charlene numerous
letters, including one in which he apologized for what had happened between
them. Defendant called Charlene from
jail up to 20 times a day, until she obtained a restraining order. In January 2009, Charlene filed for divorce
and the divorce was finalized in September or October 2009.
As noted,
defendant was convicted of one count of spousal abuse (§ 273.5, subd. (a)), one
count of criminal threats (§ 422) and one count of intimidating a witness
(§ 136.1, subd. (b)(1)). In bifurcated
proceedings, the court found true the allegation defendant had two prior strike
convictions. Defendant was sentenced to
a term of 25 years to life on each of the three convictions. The terms imposed for the spousal abuse and
witness intimidation convictions were stayed pursuant to section 654.
Discussion
I
Defendant contends
the court prejudicially erred in admitting bad character evidence about his
criminal history, specifically his “violent criminal past.” He also contends trial counsel was
ineffective because he failed to object to the testimony or request a limiting
instruction.
In pretrial
motions, defense counsel sought to
limit the evidence of defendant’s prior felony convictions. He moved to bifurcate defendant’s prior
convictions, sanitize references to those convictions and exclude evidence of
uncharged acts and defendant’s parole status.
In an Evidence Code section 402 hearing, Charlene testified she was
aware of defendant’s prior convictions, including two gang-related attempted
murder convictions in which he admitted shooting two people in the head. Although they were alive at the time of
trial, defendant told her both victims ultimately died as a result of the
injuries he inflicted. He also told her
he felt guilty because his baby’s mother jumped out of a three story building trying
to escape him. Charlene testified her
knowledge of defendant’s past affected her fearfulness as a result of his
threats.
The court granted
defendant’s motion to exclude references to his gang involvement and uncharged
acts. However, the court found
Charlene’s knowledge of defendant’s prior convictions was relevant on the
sustained fear element of criminal threats and found it was admissible. Defense counsel and the prosecution then
agreed that any reference to defendant’s past convictions would be sanitized by
using the phrase “violent criminal past.”
Defense counsel indicated he thought the word “violent” was better than
“serious,” as the latter could include sexual offenses.
Defendant argues that the evidence
of his violent criminal past was not admissible under Evidence Code sections
1101 or 1109, as it did not prove motive, intent, plan or identity and did not
qualify as prior acts of domestic violence.
As defendant acknowledges, however, the evidence was not admitted as
character evidence. Rather, the evidence
was admitted for the purpose of establishing Charlene’s state of mind as a
result of defendant’s threats, specifically, whether she was in sustained fear
as a result of his threats. Defendant
contends the evidence was not admissible for this purpose under Evidence Code
section 352, because it was highly inflammatory and unduly prejudicial.
We review a trial court’s
evidentiary rulings for abuse of discretion.
(People v. Rodriguez (1999) 20
Cal.4th 1, 9–10.) All relevant evidence is admissible unless otherwise provided
by statute. (Evid. Code, § 351.) Generally, evidence of a person’s bad acts is
inadmissible to prove a person’s propensity to commit similar acts on a
separate occasion. (Evid. Code,
§ 1101, subd. (a).) However, this
rule does not affect the admissibility of evidence to prove some other relevant
fact, such as an element of the offense.
(Evid. Code, §§ 1101, subds.(b), (c), 210.) The court may exclude relevant 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.” (Evid. Code, § 352.)
To establish the offense of making a
criminal threat, the prosecution had to prove that defendant acted with the
specific intent his statement be taken as a threat, that the threat caused
Charlene to be in sustained fear and that her fear was reasonable under the
circumstances. (§ 422.) A defendant’s prior criminal and violent
conduct are relevant to establish these elements. (People
v. Garrett (1994) 30 Cal.App.4th 962, 966; see also People v. Allen (1995) 33 Cal.App.4th 1149, 1156.) “Seldom will evidence of a defendant’s prior
criminal conduct be ruled inadmissible when it is the primary basis for
establishing a crucial element of the charged offense.” (Garrett,
at p. 967.)
Here, defendant told Charlene he
had shot two people in the head and been convicted of attempted murder. He also told her the mother of his child had
jumped out of a three-story building to escape him. Then, in the course of a physical fight
during which he punched her, grabbed her by her hair and bloodied her nose, he
repeatedly threatened to kill Charlene and threatened to kill her son. Charlene’s knowledge of defendant’s violent
criminal past, related to her personally by defendant, and the specific charges
for which he was convicted were highly probative on each element of the charge
of making a criminal threat: defendant’s
specific intent that Charlene take his words as threats; whether she was in
sustained fear as a result of those threats; and, whether that fear was
reasonable. (People v. Garrett, supra, 30 Cal.App.4th at p. 967.) That the evidence was also damaging to the
defense does not make it unduly prejudicial within the meaning of Evidence Code
section 352. (People v. Zapien (1993) 4 Cal.4th 929, 958.) Referring to defendant’s prior convictions
for attempted murder as his “violent criminal past” rather than allowing
reference to the specific convictions sustained lessened the damaging effect of
the evidence without significantly reducing its probative value. Because the probative value of the evidence
outweighed any prejudicial effect, the evidence was admissible and we find no
abuse of discretion.
II
Ineffective
Assistance of Counsel
As to defendant’s claims that
counsel was ineffective for entering into the stipulation that his criminal
history would be referred to as his “violent criminal past” and his failure to
request an “immediate” instruction limiting the jury’s consideration of that
evidence, we remain unpersuaded.
To prevail on a
claim of ineffective assistance of counsel, “defendant must show that counsel’s
representation fell below an objective standard of reasonableness under
prevailing professional norms, and that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result would have been
different. [Citations.] Because we are limited to the record on appeal,
if the record sheds no light on why counsel acted or failed to act in the
manner challenged, then unless counsel were asked for an explanation and failed
to provide one, or unless there simply could be no satisfactory explanation, we
must reject the contention that counsel provided ineffective assistance.” (People
v. Farnam (2002) 28 Cal.4th 107, 201.)
Here, counsel’s
effort to sanitize defendant’s criminal history was not ineffective assistance
of counsel. To the contrary, the
stipulation to have this evidence referred to as defendant’s “violent criminal
past,” rather than allowing admission of the details of his history
significantly reduced the potential inflammatory effect of the evidence. As above, the specific nature of defendant’s
criminal past and the fact that he had shared that information with Charlene
was relevant not only to Charlene’s fear of defendant and whether it was
reasonable, but also to defendant’s specific intent. By virtue of counsel’s stipulation, rather
than being told defendant had two attempted murder convictions that he had told
Charlene about, the jury learned only that he had an unspecified violent
criminal history. This was a reasonable
tactical decision for counsel to make.
Nor can we say
that counsel’s failure to request a limiting instruction concerning defendant’s
“violent criminal past” demonstrated ineffective assistance of counsel. “‘A reasonable attorney may have tactically
concluded that the risk of a limiting instruction . . . outweighed the
questionable benefits such instruction would provide.’ [Citations.]” (People
v. Hernandez (2004) 33 Cal.4th 1040, 1053.)
The evidence was admissible to establish the fact of Charlene’s
fear and the reasonableness of that fear under the circumstances. While the jury could not consider this
evidence to show defendant was a person of bad character or disposed to violent
behavior, there was no suggestion in this case that the evidence could be used
for that purpose. Neither the nature of
defendant’s prior felony convictions nor the underlying conduct supporting them
was before the jury. Defendant’s prior
criminal conduct was not a dominant part of the evidence against him,
represented only a small portion of the trial testimony and as presented
concerned only one of the several charges against defendant. Under the circumstances, counsel
may have deemed it unwise to call further attention to defendant’s criminal
history by requesting an instruction on it.
(People v. Hinton (2006) 37 Cal.4th 839, 878;
and did not render his provision of assistance ineffective.
III
Defendant next
contends the court abused its discretion in denying his Romero motion. He claims the
trial court relied too heavily on his prior criminal history and did not give
“sufficient weight to the mitigating factors.”
He contends the “incident occurred as a result of unusual circumstances
given that both the victim and [defendant] were drinking alcohol,” most of his
convictions were for nonviolent offenses, and his record was not increasing in
seriousness.
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 ruling on a
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
scheme’s 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, at p. 161.) The
court’s discretion is limited by the concept of “furtherance of justice,”
requiring the court to consider both the defendant’s constitutional rights and
the interests of society. (
Furthermore, dismissal of a strike is a departure from the sentencing
norm. As such, in reviewing a
abuse of discretion unless the defendant shows the decision was “so irrational
or arbitrary that no reasonable person could agree with it.” (People
v. Carmony (2004) 33 Cal.4th 367, 377.)
Reversal is justified where the trial court was unaware of its
discretion to strike a prior strike or refused to do so, at least in part, for
impermissible reasons. (
discretion, “‘balanced the relevant facts and reached an impartial decision in
conformity with the spirit of the law, we shall affirm the trial court’s
ruling, even if we might have ruled differently in the first instance’
[citation].” (Ibid.)
Here, the court considered the
written motions, oral argument, defendant’s statement in mitigation and
supporting documentation, the probation report, a statement from defendant’s
mother and the evidence adduced at trial.
The documentation provided by the defense was “incredibly
thorough.” In denying the motion, the
court noted in particular the fact that defendant was on parole at the time he
committed this offense, the number of convictions defendant had sustained and
the number of acts of violence he had committed.
Defendant’s prior convictions as an
adult began in 1979. In 1987 he was
convicted of burglary, when he broke into an ex-girlfriend’s home, threatened
her and her children and stole her television and furniture. He was granted probation and probation was
revoked when he was convicted of possession of rock cocaine. Eight months after he was convicted of drug
possession, he was convicted of vehicle theft.
In February 1992, shortly after getting off parole, he committed a
battery when he punched his then girlfriend several times in the face and
threatened to kill her. He was granted
probation. In October 1992 he was
shooting dice with four other men. He
got into an argument with two of the men and shot them both in the neck. One victim remained in a coma as a result of
the shooting and the other became a paraplegic.
While in prison on those charges, he was convicted of battery by a
prisoner on an executive officer. He was
originally released on parole in July 2007 and sustained a parole violation in
September 2007. While in jail on the
current charges, he assaulted another inmate and was given restriction for
insubordination.
The probation
report also indicated defendant had a high school diploma, had been married
twice and had two adult children. He had
been in the army and honorably discharged.
Defendant sustained an injury in 2002 which precluded him from
working. Defendant was also diagnosed
with a brain disorder while in custody and was prescribed medication for that
condition.
The court
expressly considered defendant’s constitutional rights and the interests of
society, the nature and circumstances of defendant’s current offenses and his
prior convictions, the age of his prior convictions, the potential and actual
violence of his convictions, his background, including “the scope and extent of
his reformation,” and whether the aggregate sentence defendant faced was
unjust. Based on all these considerations,
the court found defendant “clearly falls within the meaning [and] purpose” of
the three strikes law.
The court here was
clearly aware of its discretion, considered all the material before it, the
relevant facts and circumstances and reached an impartial decision that
defendant fell within the meaning of the three strikes law and denied his
Disposition
The judgment is
affirmed.
HULL , J.
We concur:
RAYE , P. J.
HOCH , J.
