P. v. Johnson
Filed 1/30/14 P. v. Johnson CA4/1
OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a),
prohibits courts and parties from citing or relying on opinions not certified
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8.1115(b). This opinion has not been
certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE,
Plaintiff and Respondent,
v.
RODERICK
JOHNSON,
Defendant and Appellant.
D063259
(Super. Ct. No.
SCS258692)
APPEAL
from a judgment of the Superior Court of
San Diego County, Kathleen M. Lewis, Judge.
Affirmed.
Laurel
M. Nelson, under appointment by the Court
of Appeal for Defendant and Appellant.
Kamala
D. Harris, Attorney General, Dane R.
Gillette, Chief Assistant Attorney General, Julie L. Garland, Assistant
Attorney General, Melissa Mandel and Sabrina Y. Lane-Erwin, Deputy Attorneys
General, for Plaintiff and Respondent.
Roderick
Johnson pleaded guilty to corporal
injury on his girlfriend resulting in a traumatic condition. The trial court sentenced him to the middle
term of three years in prison. He
appeals, contending his sentence should be reversed because: (1) the trial
court improperly relied on the victim's unsworn statements at the sentencing
hearing and to the probation officer; and (2) the
allocution and to present evidence on his own behalf. We reject these contentions and affirm the
judgment.
FACTUAL
AND PROCEDURAL BACKGROUND
In
August 2012, Johnson and his girlfriend, Kimberly Stevens, were staying at a
motel in San Ysidro. After an argument
regarding financial matters, Johnson backed Stevens into a corner and placed a
hot iron on her neck,
resulting in a second degree burn.
Stevens escaped and ran to the motel's office where she asked the staff
to call the police.
Johnson
was charged with one count of corporal injury to a spouse or cohabitant and one
count of false imprisonment by violence, menace, fraud, or deceit. The court issued a criminal protective order
requiring Johnson to stay away from Stevens and not to contact her.
At the
preliminary hearing, Stevens testified regarding the August 2012 incident and
stated there had been other occasions of
Johnson. Stevens did not call the police
on the other occasions because Johnson told her he would get out of jail and "whoop
[her] ass again."
Johnson
pleaded guilty to corporal injury on Stevens resulting in a traumatic
condition. At the change of plea
hearing, the district attorney told the court that Stevens reported that Johnson
had violated the criminal protective order by calling her and sending her
mail. Johnson denied the
allegations. The court informed Johnson
that he was subject to additional violations if he contacted Stevens and that
it would significantly impact sentencing.
Stevens provided
a victim impact letter, which was included in the probation report. She read a substantial portion of that letter
to the court at Johnson's sentencing hearing.
In her letter and statement to the court, Stevens recalled other incidents
of domestic violence by Johnson against her, alluded to abuse of other women,
and stated that Johnson had violated the protective order by writing to her and
calling her.
The trial court
considered the probation report at the sentencing hearing. The report included details from the
probation officer's interview with Stevens.
Stevens reported her fear of Johnson.
She told the probation officer that Johnson had abused her in the past,
in one instance strangled her, and threatened to kill her. She also stated that "[Johnson] was
supposed to go to anger management for a case where he broke a girl's
finger. He never did. Then he jumped on that woman again."
At the
sentencing hearing, the trial court questioned Stevens regarding her
allegations that Johnson violated the protective order. Stevens stated that Johnson had contacted her
multiple times after the protective order was issued, but had not done so since
he was warned at the readiness hearing.
The trial court found
Johnson was presumptively ineligible for probation and sentenced him to the
middle term of three years in prison. The
court noted its concerns about the aggravated facts of the offense, Stevens's
reports that Johnson had violated the protective order, and the ongoing history
of domestic violence. The court also
expressed concern that Johnson had told the probation officer that he still
loved Stevens and wanted to be with her.
At that point, Johnson interrupted the court and asked to speak. The trial court denied his request and continued
to pronounce sentence.
The trial court
stated the circumstances supporting a denial of probation, including that
Johnson inflicted emotional and physical injury with permanent scarring, he had
a significant prior criminal record, he appeared to have no remorse, and it is
likely that he will be a danger to others if not imprisoned. As a mitigating factor, the court noted that
Johnson remained law abiding for approximately nine years; however, there was a
history of domestic violence during that period. As aggravating factors, the court stated that
the crime involved the threat of great bodily harm and acts involving a high
degree of cruelty, Johnson had engaged in violent conduct that indicates a
serious danger to society, he violated the restraining order, and Stevens
reported a history of domestic violence, which the court found credible. Accordingly, the court found that the
circumstances in support of a denial of probation outweigh the circumstances in
support of a grant of probation and sentenced him to the middle term of three
years in prison.
DISCUSSION
I. Victim's
Unsworn Statements
Johnson
argues his sentence should be reversed because the trial court relied on
Stevens's unsworn statements that he had a history of domestic violence against
her and others and had violated the restraining order. We reject his arguments.
Penal
Code section 1204 provides that circumstances in aggravation or mitigation of
punishment "shall be presented by the testimony of witnesses examined in
open
court. . . . No affidavit or testimony, or representation
of any kind, verbal or written, can be offered to or received by the court, or
a judge thereof, in aggravation or mitigation of the punishment, except as
provided in this and the preceding section." (Undesignated statutory references are to the
Penal Code.) "[S]ection 1204
applies only to evidence of mitigating and aggravating factors, not generic
victim statements." (
581, 588 (Mockel).) Thus, the sentencing court may "consider
responsible out-of-court or unsworn statements concerning the circumstances of
the crime and/or the characteristics of the defendant relative to sentencing." (Id. at
p. 587.)
Here,
the trial court noted aggravating factors, including that Johnson had violated
the restraining order and Stevens reported a history of domestic violence,
which the court found credible. Johnson
did not object to the inclusion of Stevens's letter in the probation report or
to her statement at the sentencing hearing.
"[Johnson] was required to raise an objection to the statements at
the hearing when the sentencing court could respond accordingly. Because no objection was made, [Johnson] has
waived his right to complain and may not raise the issue for the first time on
appeal." (Mockel, supra, 226
Cal.App.3d at p. 587.) In any event, we
reject Johnson's argument on the merits.
In
regard to Stevens's statements that Johnson had committed other acts of
domestic violence against her, the trial court's consideration of that
information was not improper. While
Stevens's victim impact letter and comments during the sentencing hearing may
have been unsworn statements, she made the same allegations in sworn testimony
during the preliminary hearing. Defense
counsel had an opportunity and did cross-examine Stevens about the
allegations. Thus, the court could
properly consider the information.
As
to Stevens's claims that Johnson had violated the restraining order, we find no
error in the court's consideration of that information. The issue was first raised at the change of
plea hearing. At that point, Johnson
informed the court that he disputed the claims, stating that he had not
contacted Stevens. Thus, the court was
aware of his response to the allegations.
The issue was subsequently raised in Stevens's letter and at the
sentencing hearing. Stevens's statements
about violations of the restraining order were unsworn; however, the court
could receive and consider them because they were included in the probation
report and thus fell within an exception to section 1204. (Mockel,
supra, 226 Cal.App.3d at p.
588.) "They were submitted pursuant
to a statutorily established procedure with proper procedural safeguards." (Id. at
pp. 588-589.)
Similarly, we
also reject Johnson's argument that the trial court improperly considered
Stevens's allegation that he committed acts of domestic violence against other
women. Stevens made a vague statement
requesting the maximum sentence "[n]ot only for [her], but for the women
that came before [her]." She also
alleged that Johnson was supposed to go to anger management for breaking a girl's
finger, but he never did. These
statements were included in the probation officer's report and thus the trial
court was permitted to consider them. (
Accordingly, Johnson's argument has no merit.
Lastly,
any error in the court's consideration of Stevens's unsworn statements was
harmless. Even without Stevens's unsworn
statements, there was sufficient admissible evidence supporting the court's
imposition of the middle term and denial of probation. As the sentencing court noted, Johnson was
presumptively ineligible for probation because he used a deadly weapon. (§ 1203, subd. (e)(2).) Additionally, the trial court properly noted
that probation was not appropriate in this case because Johnson inflicted great
physical and emotional injury on his victim, had a prior record of criminal
conduct, lacked remorse, and was likely to be a danger to others if not imprisoned. (Cal. Rules of Court, rule 4.414.)
Under California's
determinate sentencing law, where a penal statute provides for three possible
terms for a particular offense, the sentencing court is required to impose the
middle term unless it finds, by a preponderance of the evidence, that the
circumstances in aggravation outweigh the circumstances in mitigation. (§ 1170, subd. (b).) Because this sentencing scheme requires
selection of the middle term unless the court finds aggravating or mitigating
circumstances, the middle term is viewed as the sentence to which the defendant
is presumptively entitled. (
1569, 1582-1583 ["midterm is statutorily presumed to be the appropriate
term"].)
Johnson has
failed to show that it was reasonably probable that a result more favorable to
him would have been reached in the absence of the court's consideration of
Stevens's unsworn statements. (
233, citing People v. Watson (1956)
46 Cal.2d 818, 836.) He argues that a
more favorable result was probable because, if given the opportunity, he would
have contradicted Stevens's statements.
Johnson, however, forfeited his right to testify in mitigation of
punishment by failing to make that request before the court commenced imposing
his sentence. (See post, pt. II.B.)
II. Right
to Allocution and to Present Mitigating Evidence
Johnson
argues the trial court denied him his right to allocution and to present
evidence contradicting Stevens's unsworn allegations, some of which
contradicted her testimony at the preliminary hearing. We reject these arguments.
A.
Allocution
Allocution is an
old concept, which generally refers to the court's duty to inquire whether
there is any reason why judgment should not be pronounced. (People
v. Evans (2008) 44 Cal.4th 590, 592-593 (Evans).) The statutory
allocution process in California does not provide an opportunity for the defendant to make a
personal statement in mitigation of punishment. (Id.
at pp. 597-598.) Rather, the right of
allocution is limited. A defendant may
address only two things: insanity or good cause to arrest judgment or for a new
trial. (§ 1201.)
Here,
the trial court did not specifically inquire as to whether there was a reason
why judgment should not be pronounced.
However, after Stevens made her statement at the sentencing hearing, the
trial court received arguments from the district attorney and defense
counsel. Defense counsel never stated
there was a reason as to why judgment should not be pronounced. Instead, he only argued for a lesser
punishment. When "the defendant asks
for lesser punishment, the defendant is not providing the court with reasons
defendant is giving reasons why the court should pronounce a more lenient sentence." (Evans,
supra, 44 Cal.4th at p. 597.)
Although the
trial court did not expressly inquire whether there were reasons why judgment
should not be pronounced, we find any error harmless because Johnson did not
argue in the court below or on appeal that there were proper bases for judgment
not to be pronounced. Specifically, he
does not claim that he was insane or that there was good cause to arrest
judgment or for a new trial. (§
1201.) Rather, he claims the judgment was
based on materially false information, namely Stevens's unsworn statements. This argument does not pertain to Johnson's
right to allocution, but instead to his right to make a statement in mitigation
of punishment.
B. Statement in Mitigation
A defendant in a
noncapital case has a "right at sentencing to make a sworn personal
statement in mitigation that is subject to cross-examination by the
prosecution." (Evans, supra, 44 Cal.4th
at p. 600, italics deleted.) To the
extent a defendant wishes to make a statement in mitigation of punishment, he
or she must make that request before the court pronounces sentence. (Ibid.)
Here, the court
started to impose sentence by stating that Johnson was presumptively ineligible
for probation. It then went on to discuss
the circumstances of the crime and its concern that Johnson still wants to be
with Stevens. It was only at that point
that Johnson asked to speak. Even
assuming that this may be considered as a request to testify in mitigation of
punishment, it was too late. Johnson was
required to make the request before the court started to pronounce his
sentence. (Evans, supra, 44 Cal.4th
at p. 600.)
DISPOSITION
The
judgment is affirmed.
McINTYRE, J.
WE CONCUR:
BENKE, Acting P. J.
HALLER, J.
