P. v. Sandoval

Filed 6/17/08 P. v. Sandoval CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

Appeal from a judgment of the Superior Court of Orange County, Wendy Lindley, Judge. Affirmed.

Catherine White, 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, Lilia E. Garcia and Marilyn L. George, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

A jury convicted Miguel Sandoval of willful infliction of corporal injury resulting in a traumatic condition (Pen. Code,  273.5, subd. (a))[1] and violation of a protective order ( 166, subd. (c)(1)). The trial court found he had suffered a prior juvenile adjudication for robbery, a violent felony qualifying as a strike under the Three Strikes law ( 667, subds. (d) & (e)(1);  1170.12, subds. (b) & (c)(1)), and had served a prison term for assault with a deadly weapon, which rendered defendant eligible for a one-year enhancement of his ultimate sentence ( 667.5, subd. (b)). Defendant contends the court violated his constitutional rights by admitting evidence of prior acts of domestic violence. He also argues his trial lawyers stipulation that the court need not report the courts oral instructions deprived his appellate counsel of effectively representing him on appeal, and the courts use of his prior juvenile adjudication to double his sentence under the Three Strikes law violated his Sixth Amendment rights under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and its progeny. As we explain below, we affirm the judgment.

I

Factual and Procedural Background

On the morning of August 13, 2005, deputy sheriffs responded to a domestic disturbance call from a residence in San Juan Capistrano and found Shawna L. outside a neighbors home. She was visibly upset and had been crying. The deputies observed blood on her face, and a lacerated lip. In her 911 call, Shawna reported defendant had punched her in the face and she needed help to get her two-year-old son safely out of the house. Shawna told deputies she and defendant, her live-in boyfriend of four years, had been arguing about housecleaning when defendant kicked her legs and punched her face. Deputy Sheriff Jeffrey Hallock spoke with defendant about the incident. The deputy noticed what appeared to be blood on defendants boxer shorts and the frame of the bedroom door. Defendant refused to cooperate and was taken into custody.

On the afternoon of February 24, 2006, deputies found defendant with Shawna at their home in violation of an August 2005 no-contact restraining order.

Shawna recanted at defendants preliminary hearing and trial. She claimed she had been arguing with defendant concerning his infidelity. She tripped over a pair of shoes and hit her nose on the door. When he laughed, she called 911 and lied to deputies to get him into trouble. He had never been violent towards her. Shawna admitted she lied at the preliminary hearing when she testified she had not visited defendant in jail, and conceded she and defendant had reconciled, and had petitioned to have the protective order modified to allow nonviolent contact.

The jury convicted defendant as charged in July 2006. In January 2007, the court sentenced defendant to seven years in prison, including the midterm of six years (three years doubled) for willful infliction of corporal injury and one year under section 667.5, subdivision (b).

II

Discussion

A. Admission of Defendants Other Acts of Uncharged Domestic Violence Did Not Violate Defendants Due Process Rights

Per Evidence Code section 1109,[2] the trial court admitted evidence defendant had committed other acts of domestic violence against Shawna and a previous girlfriend. The prosecution introduced a February 2005 declaration Shawna had submitted when requesting a restraining order against defendant. In the declaration, Shawna listed eight separate incidents of violence or threats of violence occurring between August 2004 and February 2005. As to the former girlfriend, defendants trial counsel stipulated that on July 23, 1999 defendant violated [her] personal liberty . . . by violence and menace, and . . . battered her. Defendant contends section 1109, which authorizes admission of prior acts of domestic violence to prove a defendants propensity to commit similar acts, violated his right to due process. We disagree.

In People v. Falsetta (1999) 21 Cal.4th 903 (Falsetta), the California Supreme Court rejected an argument the Legislature may not constitutionally permit a jury to consider the defendants propensity to commit a particular type of crime in deciding whether the defendant committed a criminal offense. The Supreme Court explained [t]he admission of relevant evidence will not offend due process unless the evidence is so prejudicial as to render the defendants trial fundamentally unfair. (Id. at p. 913.)

Although Falsetta addressed whether evidence of prior sexual misconduct under Evidence Code section 1108 passed constitutional muster, courts have applied the same analysis to domestic violence evidence admitted under Evidence Code section 1109. (People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1097; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309‑1310; People v. Brown (2000) 77 Cal.App.4th 1324, 1334-1338; People v. Hoover (2000) 77 Cal.App.4th 1020, 1026-1030; People v. Johnson (2000) 77 Cal.App.4th 410, 417-420; People v. Fitch (1997) 55 Cal.App.4th 172.) Consequently, we need not engage in an extended analysis of defendants argument. Suffice it to say, we agree with those courts rejecting the same constitutional arguments defendant raises here and therefore decline to reexamine the basic validity of the evidentiary scheme.

In a related argument, defendant contends the court erred by instructing the jury defendants prior acts need only be proved by a preponderance of the evidence and, if proved, the jury could rely on evidence of criminal disposition to find him guilty. (CALCRIM No. 852.)[3] As recently explained in People v. Reyes (2008) 160 Cal.App.4th 246, CALCRIM No. 852 clarifies that even if the jury concludes the defendant committed the uncharged acts, that evidence is only one factor to consider, along with all the other evidence and specifies that such evidence alone is insufficient to prove the defendants guilt on the charged offenses. CALCRIM No. 852 then goes on to state that the People must still prove each element of every charge beyond a reasonable doubt. (Id. at p. 252; see People v. Pescador (2004) 119 Cal.App.4th 252, 261-262.) As noted in People v. Reliford (2003) 29 Cal.4th 1007 (Reliford), nothing in the instruction authorizes the jury to use preponderance of the evidence as the burden of proof on any issue other than preliminarily determining whether the accused committed a previous assault. (Id. at p. 1016.) Reliford rejected the notion that a jury could reasonably interpret the instruction to authorize a guilty verdict of a charged offense on the basis of a lowered standard of proof. (Ibid.) CALCRIM No. 852 cautions the jury that it is not required to draw these conclusions and that such a conclusion is alone insufficient to support a conviction.

People v. Vichroy (1999) 76 Cal.App.4th 92 (Vichroy), the case on which defendant principally relies, held that a former version of CALJIC No. 2.50.01 violated due process. There, the court observed, We do not believe proof beyond a reasonable doubt of a basic fact, that appellant committed prior sexual offenses, may act as proxy or substitute for proof of the ultimate fact, i.e., appellants guilt of the currently charged offenses. The constitutional infirmity arises in this case because the jurors were instructed that they could convict appellant of the current charges based solely upon their determination that he had committed prior sexual offenses. CALJIC No. 2.50.01, as given, required no proof at all of the current charges. (Vichroy, at p. 99.) Here, unlike the instruction in Vichroy, the trial court expressly instructed the jury that a finding defendant had committed the uncharged prior offenses is not sufficient by itself to prove beyond a reasonable doubt that he committed the charged offenses.

Based on Reliford and the other cases cited above, we reject defendants contentions that CALCRIM No. 852 violated his due process rights.

B. Trial Counsels Stipulation the Court Need Not Report Its Oral Instructions Did Not Deprive Defendant of Effective Assistance of Counsel on Appeal

Defendants trial counsel stipulated the court reporter need not report the trial courts reading of the instructions to the jury. Defendant contends this violated his right to effective assistance of counsel on appeal.

Defendants are accorded the right to have the trial courts oral instructions recorded by the court reporter (People v. Gloria (1975) 47 Cal.App.3d 1, 5-6) and transmitted for the appellate record (Cal. Rules of Court, former rule 31(c)(4), current rule 8.320(c)(4)).[4] Defendants lawyer, however, waived this right by stipulating that the court did not have to report the oral instructions. (People v. Rogers (2006) 39 Cal.4th 826, 857 (Rogers); People v. Cummings (1993) 4 Cal.4th 1233, 1333-1334, fn. 70.)

A defendants due process right to meaningful appellate review is not violated if the record is adequate to evaluate the case for error. (See Rogers, supra, 39 Cal.4th at p. 857.) Here, the record includes the written packet of instructions which the trial judge read and provided to each juror. These instructions provide an adequate basis to review the case for instructional error. Although a trial court may make a mistake during the reading of instructions, we presume defense counsel would alert the court to any problem, and lodge an objection if the court failed to cure the error. Here, defense counsel raised no objection to the accuracy of the courts oral instructions. Consequently, we will not presume any error occurred. (See Evid. Code, 664 [presumption that official duty regularly performed].)

Defendant also states that trial counsels stipulation had no tactical basis and fell below the standard of care. For the reasons provided above, the record does not show prejudice from defense counsels agreement to forego recording of the oral instructions. (Strickland v. Washington (1984) 466 U.S. 668.)

C. Defendants Aggravated Sentence Did Not Violate His Right to a Jury Trial

In a supplemental brief, defendant asserts the trial courts use of a prior nonjury juvenile adjudication to double the penalty for his offense to six years under the Three Strikes law violated his Sixth and Fourteenth Amendment rights under the Apprendi line of cases because juveniles are not entitled to a jury trial in juvenile proceedings. We disagree.

Defendant relies on United States v. Tighe (9th Cir. 2001) 266 F.3d 1187 (Tighe) to support his argument. There, the Ninth Circuit limited Apprendis prior conviction exception to prior convictions that were themselves obtained through proceedings that included the right to a jury trial and proof beyond a reasonable doubt. Juvenile adjudications that do not afford the right to a jury trial and a beyond-a-reasonable-doubt burden of proof, therefore, do not fall within Apprendis prior conviction exception. (Tighe, at p. 1194.) We find Tighe unpersuasive.

In McKeiver v. Pennsylvania (1971) 403 U.S. 528, 545, the United States Supreme Court held that due process did not require a jury trial in juvenile proceedings. Because a juvenile court may constitutionally and reliably adjudicate a delinquency matter without providing the minor a jury trial, it follows that there is no constitutional impediment to the subsequent use of the juvenile adjudication to enhance an adult offenders sentence. As the dissent in Tighe explained: Congress has the constitutional power to treat prior convictions as sentencing factors subject to a lesser standard of proof because the defendant presumably received all the process that was due when he was convicted of the predicate crime. For adults, this would indeed include the right to a jury trial. For juveniles, it does not. . . . [W]hen a juvenile receives all the process constitutionally due at the juvenile stage, there is no constitutional problem (on which Apprendi focused) in using that adjudication to support a later sentencing enhancement. (Tighe, supra, 266 F.3d at p. 1200, original italics (dis. opn. of Brunetti, J.).)

Every California appellate court and every federal appellate court besides the Ninth Circuit has rejected the reasoning of the Tighe majority. (E.g., People v. Tu (2007) 154 Cal.App.4th 735; People v. Fowler (1999) 72 Cal.App.4th 581, 585; People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Palmer (2006) 142 Cal.App.4th 724, 733; People v. Bowden (2002) 102 Cal.App.4th 387, 393-394; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-831; People v. Lee (2003) 111 Cal.App.4th 1310, 1314-1316; People v. Smith (2003) 110 Cal.App.4th 1072, 1079; United States v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1032; United States v. Jones (3rd Cir. 2003) 332 F.3d 688, 696; United States v. Burge (11th Cir. 2005) 407 F.3d 1183, 1190.)

We agree with these cases. Given that juvenile adjudications are fully consistent with constitutional principles and sufficiently reliable for juvenile court purposes, even in the absence of the right to a jury trial, we see no reason to preclude trial courts from using a juvenile adjudication to enhance a felony sentence. Accordingly, the trial court did not violate defendants right to a jury trial when it imposed an aggravated sentence based on defendants juvenile adjudication.[5]

III

Disposition

The judgment is affirmed.

ARONSON, J.

WE CONCUR:

SILLS, P. J.

RYLAARSDAM, J.

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

[2] Evidence Code section 1109 provides, in relevant part: (a)(1) Except as provided in subdivision (e) or (f), in a criminal action in which the defendant is accused of an offense involving domestic violence, evidence of the defendants commission of other domestic violence is not made inadmissible by [Evidence Code section] 1101 if the evidence is not inadmissible pursuant to [Evidence Code section] 352. (See  13700 [defining domestic violence].) Evidence Code section 1109, subdivision (e), provides evidence of acts occurring more than 10 years before the charged offense is inadmissible unless the court determines admission of the evidence is in the interest of justice.

[3] The trial court gave Judicial Council of California Criminal Jury Instructions (2006) CALCRIM No. 852, as modified: The People presented evidence that the defendant committed domestic violence that was not charged in this case, specifically prior abuse against Shawna L[.] and [his former girlfriend]. [] Domestic violence [in this case] means abuse committed against an adult or a fully emancipated minor who is a spouse, or former spouse, cohabitant or former cohabitant, or person with whom the defendant has had a child, or person who dated or is dating the defendant. [] Abuse means intentionally or recklessly causing or attempting to cause bodily injury, or placing another person in reasonable fear of imminent serious bodily injury to himself or herself or to someone else. [] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged domestic violence. Proof by a preponderance of the evidence is a different burden of proof from proof beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. [] If the People have not met this burden of proof, you must disregard this evidence entirely. [] If you decide that the defendant committed the uncharged domestic violence, you may, but are not required to, conclude from that evidence that the defendant was disposed or inclined to commit domestic violence and, based on that decision, also conclude that the defendant was likely to commit and did commit Domestic Battery on Shawna L[.], as charged here. If you conclude that the defendant committed the uncharged domestic violence, that conclusion is only one factor to consider along with all the other evidence. It is not sufficient by itself to prove that the defendant is guilty of Domestic Battery. The People must still prove each element of every charge beyond a reasonable doubt. [] Do not consider this evidence for any other purpose except for the limited purpose of determining the defendants credibility.

[4] Section 1127 provides, in part, All instructions given shall be in writing, unless there is a phonographic reporter present and he takes them down, in which case they may be given orally; provided however, that in all misdemeanor cases oral instructions may be given pursuant to stipulation of the prosecuting attorney and counsel for the defendant. (See People v. Bradford (2007) 154 Cal.App.4th 1390 [trial courts required by statute to have a court reporter transcribe all oral instructions to the jury].)

[5] We note the Supreme Court is considering the issue in People v. Nguyen (2007) 152 Cal.App.4th 1205, review granted October 10, 2007, S154847.