P. v. Tuschen
Filed 9/5/07 P. v. Tuschen 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
(Shasta)
THE PEOPLE, Plaintiff and Respondent, v. CATHERINE ELAINE TUSCHEN, Defendant and Appellant. | C053757 (Super. Ct. No. 04F8744) |
The trial court sentenced defendant Catherine Elaine Tuschen to a three year prison term after she pleaded no contest to being an accessory after the fact (Pen. Code, 32) and destruction of evidence (Pen. Code, 135) in connection with the murder of Christopher McAuliffe. The trial court imposed the upper term of three years on the accessory conviction based on its finding of several aggravating factors.
On appeal, defendant argues the trial court improperly decided the aggravating factors based on a burden of proof that was less than beyond a reasonable doubt, and that there was insufficient evidence to find the aggravating factors beyond a reasonable doubt.
We shall conclude defendant has failed to show that the trial court employed the incorrect standard, and that in the face of the trial courts silence as to the standard employed, we must presume it used the proper standard. We shall further conclude defendant has waived her claim of insufficiency of the evidence by failing to set forth in her brief all of the material evidence.
FACTUAL AND PROCEDURAL BACKGROUND
Because defendant pleaded no contest to the charges, the following factual statement is based upon the probation report.
Defendant met McAuliffe at a bar on November 20, 2004. From the bar they went to defendants house, where they were engaging in sexual activity when defendants oldest son, Tim Stayer, observed them through the bedroom window. Tim Stayer entered the house and began fighting with McAuliffe. After the fight, Tim Stayer told McAuliffe to sit on the front porch. Tim Stayer called his younger brother, Robert, and told him to come over.
Robert came to the house with two friends, Kevin Skelton and Daniel Coyne. Robert proceeded to hit McAuliffe, knocking him to the ground. He punched McAuliffe in the face several more times. McAuliffe was taken to the garage and thrown on the floor. When McAuliffe tried to use his cell phone to call for help, he was doused in bug poison.
McAuliffe was placed into Coynes pickup bed and taken to a boat ramp, where he was dumped. Skelton kicked McAuliffe, and Robert began stomping and jumping on his head. The trio returned to defendants house, where they found defendant and Tim cleaning up blood and other evidence from the scene.
Robert admitted to police that he, his brother, and his wife, Kimberly, picked up supplies at Wal-Mart the day after the assault and went to defendants house to clean up. Defendant had already cleaned up some of the blood by the time they got there. Robert burned his mothers sheets after they cleaned up the house. He also hosed all the blood off of the garage floor, and he and Coyne took Coynes truck to a car wash, where they cleaned out the back of the truck.
Kimberly Stayer stated that defendant had been the only one to clean up the house, and that defendant asked her to purchase new bed sheets and a new mattress. Kimberly purchased new sheets, but not a new mattress.
Laura Minkoff, McAuliffes girlfriend, reported that Tim Stayer told her his mother planned to tell the police she had dropped off McAuliffe at the home of a man named Everett, and that she had no other knowledge of the incident.
Defendant entered a plea of no contest to the charges of accessory after the fact and misdemeanor destruction of evidence. Among the provisions of the written plea agreement was her agreement to give up the right to a jury trial on the existence of any sentencing factors and consent to the judge determining, by proof beyond a reasonable doubt, the existence of any aggravating sentencing factors within the judges discretion. (Italics added.)
The trial court sentenced defendant to the upper term of three years for violating Penal Code section 32, being an accessory after the fact. The trial court imposed a term of six months in county jail for violation of Penal Code section 135, destruction of evidence, to be served concurrently with the state prison term.
The trial court set forth several aggravating circumstances in support of the sentence. First, the court found the crime to which she was an accessory involved incredible violence and cruelty. Second, her failure to stop the violence, obtain help for the victim, or cooperate with the police investigation exemplified a profound lack of remorse. Third, the court found that defendant was diligent in destroying the inculpatory evidence, and that as the matriarch of the family she took a leadership role in destroying evidence and directing others to destroy evidence. Fourth, defendants demeanor on the stand was a substantial factor.[1] The trial court found her testimony to be dishonest. Fifth, defendant was heard on recorded jail house conversations expressing an alarming apathy for the crime that had been committed. Finally defendant violated court orders that she not talk to other witnesses.
DISCUSSION
I
Standard of Proof
Citing Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403], and Cunningham v. California (2007) 549 U.S. __ [166 L.Ed.2d 856], defendant argues she had a right to have the aggravating factors proved beyond a reasonable doubt. She concedes she waived the right to a jury trial as to the existence of sentencing factors.
She claims that even though the trial court failed to mention any standard of proof, it presumably applied the preponderance of evidence standard set forth in the then-current version of Rules of Court, rule 4.420(b). We disagree.
The plea agreement set forth the terms of defendants waiver of rights regarding sentencing factors. It specifically stated defendant was consenting to trial of the sentencing factors by a judge, by proof beyond a reasonable doubt . . . . The trial court did not recite the standard of proof in connection with its findings of aggravating factors.
Error is never presumed, but must be affirmatively shown, and any uncertainty in the record must be resolved against the appellant. (People v. $17,522.08 United States Currency (2006) 142 Cal.App.4th 1076, 1084.) In the face of a silent record, we presume the trial court performed its official duty and applied the correct standard of proof. (People v. Waite (1983) 146 Cal.App.3d 585, 595, disapproved on other grounds in People v. Jones (1988) 46 Cal.3d 585, 592, fn. 4; People v. Jackson (1985) 171 Cal.App.3d 609, 618, abrogated on another ground in Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1091, fn. 10.)
II
Sufficiency of the Evidence
Defendant claims there was insufficient evidence to support the finding of aggravating factors beyond a reasonable doubt. The factual statement and argument in her appellate brief is taken largely from her own testimony in her co-defendants trial, in addition to portions of the probation report and exhibits attached to her points and authorities in her sentencing brief. She makes no attempt to set forth any facts that support the trial courts findings in aggravation. Moreover, her arguments are based upon her testimony in the co-defendants action, but no other testimony in that action is a part of the record on appeal.
An appellant is required to demonstrate that there is no substantial evidence to support the challenged findings, and a recitation of only the evidence favorable to the appellant is not a demonstration of error. (People v. Dougherty (1982) 138 Cal.App.3d 278, 282.) Unless an appellant sets forth all of the material evidence on a point, as opposed to merely their own evidence, the error is deemed waived. (Ibid.) Accordingly, we summarily reject this argument.
DISPOSITION
The judgment is affirmed.
BLEASE , Acting P. J.
We concur:
SIMS , J.
DAVIS , J.
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[1] Defendant was originally charged with co-defendants Timothy and Robert Stayer, Kevin Skelton, and Daniel Coyne. The trial court denied defendants motion to sever. Defendant subsequently changed her plea, with the agreement that judgment and sentencing would be continued to a date after the trial of her co-defendants. She testified at the trial of her co-defendants.
