P. v. Valenzuela

Filed 1/27/09 P. v. Valenzuela 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. James S. Hawkins, Judge. Affirmed.

William Flenniken, Jr., 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, Assistant Attorney General, and Barry Carlton, Deputy Attorney General, for Plaintiff and Respondent.

INTRODUCTION

Ernest Matthew Valenzuela (defendant) argues: that the evidence was insufficient to support the trial courts finding that one of his prior convictions was a strike; that the court committed prejudicial error by admitting evidence of the contents of a bag found in his truck; and that the sentence on one of his current convictions must be stayed pursuant to the provisions of Penal Code section 654.^[1] We are persuaded by none of defendants arguments and will affirm.

FACTS AND PROCEDURAL HISTORY

In April 2007, Lisa Marie Wallace (Wallace or the victim) was staying with her boyfriend David Morgan (Morgan) in a room at the Bahamas in Palm Springs. Defendant and his roommate Bobby Saul (Saul), a tattoo artist, lived in an apartment next door to the Bahamas. Wallace, Morgan, and defendant had all been using drugs in defendants apartment the day before the following events took place.

Sometime in the very early morning of April 7, 2007, Wallace visited defendants apartment so that Saul could put a tattoo on her arm. Subsequently, at intervals over the course of the day, Wallace made three more visits to the apartmentfor a total of fourso that Saul could continue work on her tattoo. Morgan accompanied Wallace on two of the visits, and at some point left a bag of computer parts there. When defendant came home from work, he discovered that his laptop computer was missing. He was very angry and blamed Saul for allowing Wallace and Morgan to come into his apartment. Saul went to the Bahamas and asked Wallace and Morgan to come back to the apartment to speak to defendant about the missing laptop computer. Defendant was very upset and cited the bag of computer parts as evidence of Morgans guilt. When defendant went to the kitchen and returned with a knife, Morgan left the apartment by a back door. Wallace, however, stayed and tried to calm defendant. Defendant responded to her efforts by closing and locking the door, pinning her down on his bed, and repeatedly hitting her with his fist while telling her that he was going to kill her. When Wallace felt the tip of defendants knife in her ear, she grabbed the blade, cutting her fingers. Eventually, in response to Sauls requests, defendant stopped hitting Wallace and let her go.

Morgan and Wallace hid and did not report the incident to police until the following day. When they realized that Saul and defendant were conducting a door-to-door search of the Bahamas to get them, they called the police.

In an amended information filed August 10, 2007, defendant was charged with three felonies: assault with a deadly weapon ( 245, subd. (a)(1), count 1); making a criminal threat ( 422, count 2); and false imprisonment ( 236, count 3). As to counts 2 and 3, the information alleged that defendant had personally used a deadly weapon, a knife. ( 12022, subd. (b)(1), 1192.7, subd. (c)(23).) The information also alleged that in 1992 defendant had been convicted of a serious and violent felony, assault with a deadly weapon. ( 245, subd. (a)(1), 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).) In addition, the information alleged that in 2001 and 2003 defendant had been convicted of drug-related offenses: possession of controlled substances and possession for sale. (Health & Saf. Code,  11377, 11378; Pen. Code, 1203, subd. (e)(4).) In relationship to the possession for sale offense, the information alleged that defendant had served a prison term and had not subsequently remained free of custody for five years. (Pen. Code, 667.5, subd. (b).)

During defendants three-day trial, Wallace, Morgan, and Saul testified to the facts as recited above. Wallace identified photographs showing cuts and bruises on her hands and body. She said that the injuries were from defendants assault. When the prosecutor questioned Morgan about his bag of computer parts, the court permitted him to testifyover defense counsels relevancy objectionabout items he later saw police remove from the bag when they took it out of defendants truck. The items included duct tape, handcuffs, and leg shackles, all things Morgan maintained were not his. However, Morgan also testified that Saul, not defendant, was driving the truck.

Saul testified that about a week before the incident, defendant had allowed him to move into his apartment and had also allowed him to store his belongings in defendants storage unit. Defendant also allowed Saul to drive his truck. Saul believed that Morgan had taken the laptop computer. Saul tried to persuade Morgan to return the laptop computer because defendant was going to kick Saul out of the apartment and Saul had nowhere else to stay.

Palm Springs Police Officer Paola Ramos testified as to Wallaces injuries and the photographs she took of them, as well as to the type of knife allegedly involved in the attack. Ramos saw bruises on the victims chest, arms, and face, as well as scratches and cuts on her hands, neck, and ears. The injuries did not appear to be old. Some of the bruises Ramos observed did not show up in the photographs she took. The knife was flexible and serrated. Ramos also saw the bagand its contentsremoved from defendants truck.

When the prosecutor tried to question Ramos about the contents of the bag, defense counsel requested a sidebar conference and objected to that line of questioning as more prejudicial than probative. The prosecutor responded that the items in the bag had been listed in the police report, so this was not any type of surprise. The court answered: It was to me. He objected irrelevant, and I made a mistake[.] I overruled you. I had no idea we were talking about handcuffs and shackles[.] I thought it was computer parts. Addressing defense counsel, the court continued: But you recovered from that, didnt you[?] [Y]ou indicated that someone else was driving the truck with the bag in it at the time. Eventually, the court sustained the objection because the implication is more prejudicial than probative.

In closing argument the prosecutor referred to Saul as defendants boy who was driving around in [defendants] truck with some shackles, handcuffs, and duct tape.

On August 16, 2007, the jury found defendant guilty of simple battery (a lesser included offense of count 1), making a criminal threat (count 2), and false imprisonment (count 3). The jury also found the personal weapon use enhancements related to counts 2 and 3 not true. In a separate hearing on November 16, 2007, the court found defendant had suffered all the charged prior convictions and found that his 1992 conviction for assault with a deadly weapon was a strike. The court explained that its finding that the conviction was a strike was based on defendants admission in the probation report related to the case,^[2]on the abstract of judgment in the file, and on the certified section 969(b) packet of prior conviction records.

The court sentenced defendant to an aggregate term of five years in state prison: the midterm of two years for count 2, doubled because of the strike prior; plus the midterm of two years for count 3, to run concurrently with the sentence for count 2; plus six months for the misdemeanor assault conviction, also to run concurrently with the sentence for count 2; plus one consecutive year for the prison prior.

DISCUSSION

Sufficiency of the Evidence That the Prior Conviction was a Strike

As the People point out, defendants argument that the court had insufficient evidence to support its finding that his 1992 conviction for assault with a deadly weapon was a serious felony within the meaning of the Three Strikes law has recently been rejected by the California Supreme Court in its unanimous decision in People v. Delgado (2008) 43 Cal.4th 1059 (Delgado).

In Delgado, as here, the defendant argued that an abbreviated entry in the abstract of judgment was insufficient, standing alone, to prove that his prior conviction for a section 245, subdivision (a)(1), offense was in fact for assault with a deadly weapon rather than merely assault by means of force likely to produce great bodily injury, the alternative possibility under the statute. (Delgado, supra, 43 Cal.4th at p. 1065.) The distinction is important because assault with a deadly weapon is a serious felony, which counts as a strike and doubles the sentence for the current offense. Conviction for assault with a deadly weapon also subjects the defendant to a consecutive term, while assault with force likely to cause great bodily injury does not. (Ibid.)

The entry in the Delgado defendants abstract of judgment described his prior conviction as section 245(A)(1), the crime of Asslt w DWpn. (Delgado, supra, 43 Cal.4th at p. 1064.) In affirming the appellate courts decision that the conviction was a strike, the Supreme Court noted that the abstract of judgment is a contemporaneous, statutorily sanctioned, officially prepared clerical record of the conviction and sentence . . . cloaked with a presumption of regularity and reliability. (Id. at p. 1070.) Absent any rebuttal evidence, the court could reasonably infer that the words were there for a reason, that they meant what they said, and that they accurately set forth the form of violation for which the defendant was convicted. (Id. at p. 1071.) The same reasoning applies here. The entries in our defendants abstract of judgment are 245 (a)(1) and Ass. w/Dead wpn. These notations, and the absence of rebuttal evidence, are sufficient to support the trial courts conclusion that defendants 1992 conviction was for a serious and violent felony and that the conviction constituted a strike. ( 667, subds. (c), (e)(1), 1170.12, subd. (c)(1).)

Erroneous Admission of Evidence

Defendant next argues that because the trial court said that it would not have overruled defense counsels relevancy objection to the introduction of evidence of the contents of Morgans bag when it was recovered from defendants truck, error . . . has been clearly established. Defendant further insists that the erroneously admitted evidence was prejudicial because it suggested that he and Saul had something much more sinister in mind than merely interrogating Wallace and Morgan about the missing laptop. Finally, defendant concludes that there was a reasonable likelihood of a more favorable result had the jury not heard the handcuffs-leg iron evidence.

Assuming, without deciding, that evidence of the handcuffs, shackles, and duct tape should not have been introduced, we cannot follow defendant to the conclusion that the introduction was prejudicial. Regardless of whether the trial court erred in admitting this information, the admission was harmless because ample other evidence supported the jurys conclusions. It is not reasonably probable that the outcome of the case would have been more favorable to defendant absent the irrelevant evidence. (People v. Watson (1956) 46 Cal.2d 818, 836-838.)

First, as the court noted, the evidence of the contents of the bag was immediately neutralized by Morgans further testimony that Saul, not defendant, was driving the truck in which the bag was found. Thus the jury knew that the handcuffs, shackles, and duct tape were in Sauls possession, not defendants, and that Saul had an independent reason to be angry at the victim. He was being kicked out of the only place he had to stay because he was the one who let Morgan, the person defendant suspected of stealing his laptop computer, into the apartment. Second, in addition to the victims testimony, there was independent objective evidence of the assault, including Ramoss testimony and the photographs of Wallaces injuries. Third, there was no evidence that any of the items in the bag found in the truck Saul was driving had been used in the crimes of which defendant was convicted: the assault, the criminal threats, or the false imprisonment. Finally, the jury convicted defendant of simple misdemeanor assault, not assault with a deadly weapon, despite all the testimony about the knife from Wallace, Morgan, and Ramos. In other words, defendant already had a more favorable result than he might have received had the jury been less lenient or perspicacious.

Section 654 Issue

Lastly, defendant argues that his sentence on count 3 should have been stayed pursuant to the provisions of section 654.

Section 654 prohibits multiple punishments for the same criminal act. Where the statute precludes multiple punishment, sentence must be stayed on all but one count. ( 654; People v. Ortega (1998) 19 Cal.4th 686, 692.) The initial inquiry in any section 654 application is to ascertain the defendants objective and intent. If he entertained multiple criminal objectives which were independent of and not merely incidental to each other, he may be punished for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct. [Citation.] Whether the defendant maintained multiple criminal objectives is determined from all the circumstances and is primarily a question of fact for the trial court, whose finding will be upheld on appeal if there is any substantial evidence to support it. [Citation.] (People v. Porter (1987) 194 Cal.App.3d 34, 38.) When a court sentences a defendant to separate terms, there is an implicit determination that the defendant held more than one criminal objective. (People v. Osband (1996) 13 Cal.4th 622, 730-731; People v. Nelson (1989) 211 Cal.App.3d 634, 638.) Gratuitous acts of violence against an incapacitated and unresisting victim may be found not incidental to robbery for purposes of section 654. (People v. Cleveland (2001) 87 Cal.App.4th 263, 272; People v. Sandoval (1994) 30 Cal.App.4th 1288, 1299-1300.)

Here, there was substantial evidence in the circumstances surrounding defendants attack on Wallace from which the trial court could have reasonably concluded that although his acts occurred together, he harbored more than one criminal intent in committing them. First, there was absolutely no evidence that defendant thought Wallace had stolen his laptop computer; it was Morgan whom he suspected and whom he accused. And it was Saul whom defendant planned to kick out of his apartment for having let Morgan and Wallace onto the premises. There was no evidence at all that defendant thought he could recover the laptop computer by imprisoning and beating Wallace or by threatening to kill her. As the People suggest, defendants crimes were crimes of anger and vengeance: one designed to physically hurt the victim and the other designed to infuse lasting fear into her. In sentencing him to consecutive terms, the court implicitly determined that defendant had more than one criminal objective and we do not disagree. Defendants gratuitous acts of violence on an imprisoned and vulnerable victim were not, as he suggests, merely incidental to the objective of recovering his property.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P. J.

We concur:

RICHLI

J.

GAUT

J.

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^[1] All further statutory references are to the Penal Code unless otherwise indicated.

^[2] Defendant apparently told the probation officer that he had assaulted the victim, who later died, with a pipe.