P. v. Aponte
Filed 7/30/12 P. v. Aponte CA6
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opinion has not been certified for publication or ordered published for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
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
ROBERTO APONTE,
Defendant and
Appellant.
H035701
(Monterey
County
Super. Ct.
No. SS082273)
I. Statement of the Case
After a
court trial, the court convicted defendant Roberto Aponte of inflicting
corporal injury on his spouse and further found that he caused great bodily
serious felony conviction. (Pen. Code,
§§ 273.5, subd. (a), 12022.7, subd. (e), 1170.12, subd. (c)(1), 459.)
court sentenced him to four years in prison.
It gave him 623 days of presentence custody credit and, under section
2933.1, subdivision (c), limited his presentence conduct credit to
15 percent of custody credit, giving him 93 days, for total presentence
credit of 716 days. On appeal from the
judgment, defendant claims defense counsel rendered ineffective
assistance. He also claims the court
erred in applying the 15 percent credit limitation.
We affirm
the judgment.
II. Background
The Prosecution
Defendant
and his wife Jane Doe went to a barbeque on August 31, 2008, and stayed from about 1:00 p.m. to 7:30
or 8:00 p.m. Defendant and Doe were drinkers, sometimes to
excess, and both had numerous drinks at the barbeque.
with someone. Defendant got angry when a
man named Ricky brought Doe a drink.
Defendant seemed jealous and exchanged words with Ricky, warning him to
stay away from Doe.
Doe
testified that when the party ended, defendant drove them home. They stopped on the way at Burger King for
some food. At home, Doe lay down on the
bed to watch TV. Defendant accused her
of flirting at the party and tried to provoke an argument. Doe was not interested in fighting, curled
up, and continued to watch TV. Defendant
pressed his accusation. Doe told him to
“shut up.” She did not want to talk
about it and said they could discuss it in the morning. Defendant persisted, and Doe just kept
watching TV and dozing a little.
Suddenly, without warning, defendant smacked her in the ear with what
felt like a closed fist and knocked her to the floor. She grabbed her ear in pain and started
screaming. Doe told defendant to get her
car. She then took some of her things
and left for her parents’ house.
Two days
later, Doe complained to the police and filed a formal report seeking
defendant’s arrest. The officer did not
see any exterior bruising but suggested she go to the hospital to have her ear
checked. While Doe was at the police
station, defendant called and left her a voice message apologizing, admitting
that he was “wrong” and had “stepped out of our boundaries,” and wanting her to
know how much he loved her. Doe
testified that defendant’s message echoed the kinds of comments he had made
after prior incidents of violence against her.
After
defendant was arrested, his brother Domingo called Doe and asked her to drop
the charges. Doe also received a card
and love letters. The return address on
an envelope listed the name “Joseph Santos.”
However, the letters were not signed by “Joseph Santos.” Rather, on one side of the card were three
small hearts that sequentially read “I” “Love” and “You” and were followed by a
fourth larger heart that read, “Bobby,” the name she used in referring to
defendant at trial. The card was signed
“Tu Papi.” One letter was signed “Hubby”
and told her to use her maiden name if she wrote him back. Doe identified defendant’s handwriting on the
letters. The card and letters were sent
from the Monterey County Jail, where defendant was being held.
The
handwritten love letters professed defendant’s undying devotion to her and
their marriage. He talked about being
husband and wife and making their marriage stronger; he acknowledged that he
was not the easiest person to get along with; he admitted that he had been
wrong; he said he was sorry and promised this would never happen ever again; he
begged her to forgive him; and he sought reconciliation. He said that only she could pardon him. In addition, he told her that he had accepted
God and Christ into his life, was clean and sober, promised to quit drinking
and go to AA, and was willing to attend marriage counseling. He further pointed out that he could go to
prison for eight years but advised her about a “new law” that “if the person
doesn’t come to court it will be thrown out of court,” and therefore “if you
don’t come I can be set free, but I still have too [sic] do my 6 months for the violations of parole. I’m asking you please think of My Kids and
you and me! I was wrong and I don’t want
to loose [sic]
you . . . .”
name="_ftnref4" title="">[4]
A few days
after being attacked, Doe went to the hospital because she was experiencing
more pain and some hearing loss. She had
not had any problems with her ear before defendant hit her. The treating physician said she had a hole in
her ear. She was referred to Doctor Mark
Vetter, M.D., a specialist. Doe said
that she had been struck on the ear and had some hearing loss. Doctor Vetter found two perforations in her
eardrum. He could not tell whether the
perforations were caused by trauma or infection. However, he saw no signs of infection. He had Doe wait three months to see if her
eardrum would heal naturally. It did
not, and he surgically repaired it and restored her hearing.
Doctor
Vetter testified that it was possible for an old perforation that had healed to
spontaneously reappear. He also
testified that one could perforate an eardrum twice with a Q-tip. However, he considered such a scenario
unlikely because of the pain the first perforation would cause. The more likely cause of multiple
perforations would be an abrupt and traumatic change in pressure inside the ear
due to, for example, being slapped on the ear with an open hand, although it
could also happen with a closed fist.
The
Defense
Defendant testified that he saw Doe take medication on
the day of the barbeque. He also said
she drank heavily during the party and was still intoxicated when they got
home. She seemed angry at him. They argued, and at one point, she came at
him. He instinctively raised his hands
in self-defense but then backed up, turned around, and left the room. He did not touch her. Defendant admitted that when he explained
what happened to the police, he gave two stories, and in one, he falsely said
that Doe had actually hit him on the head.
Defendant
testified that during their relationship, Doe often complained about pain in
her ear, and when she was drunk, she would dig in her ear with a Q-tip.
III. Ineffective Assistance of Counsel
Defendant
contends that counsel rendered ineffective assistance in failing to request a
limiting instruction concerning evidence that defendant’s brother Domingo had
called Doe and urged her to drop the charges.
He asserts that the evidence was admissible for some purposes—for
example, to explain Doe’s state of mind and credibility, show that she was
afraid to testify and feared retaliation, and reveal Domingo’s bias as a
witness for the defense. However, it was
not admissible to prove an attempt to dissuade Doe from testifying or suppress
evidence because there was no evidence that defendant authorized, directed, or
was otherwise connected with Domingo’s call.
Accordingly, defendant argues that if counsel had requested a limiting
instruction, the court “would have been put on notice that the testimony was
inadmissible to show any wrongdoing on [defendant’s] part.” He argues that without the requested
instruction, the court would tacitly impute Domingo’s conduct to him, which
would then undermine the court’s evaluation of defendant’s credibility.
Applicable Principles
To obtain
reversal due to ineffective assistance, a defendant must first show “that
defense counsel’s performance fell below an objective standard of reasonableness,
i.e., that counsel’s performance did not meet the standard to be expected of a
reasonably competent attorney[.]” (
926, 1003 (Cunningham);
668, 688 (Strickland).) Second, the defendant must show that there is
“a reasonable probability that defendant would have
obtained a more favorable result absent counsel’s shortcomings.” (Cunningham,
supra, 25 Cal.4th at p. 1003.) “A
reasonable probability is a probability sufficient to undermine confidence in
the outcome.” (
p. 694; People v. Staten (2000)
24 Cal.4th 434, 450-451.)
Because the
defendant bears this burden, “[a] reviewing court will indulge in a presumption
that counsel’s performance fell within the wide range of professional
competence and that counsel’s actions and inactions can be explained as a
matter of sound trial strategy.” (
1211.) Moreover, where the record on
direct appeal “does not show the reason for counsel’s challenged actions or
omissions, the conviction must be affirmed unless there could be no
satisfactory explanation.” (
543, 569.) Under such circumstances,
claims of ineffective assistance are generally rejected on direct appeal and
more properly raised in a petition for habeas corpus, which can include
declarations and other information outside the appellate record that reveal the
reasons for the challenged conduct. (
188 [“tactical choices presented . . . on a silent record” are “better
evaluated by way of a petition for writ of habeas corpus” and will be rejected
on direct appeal].)
In this
case, the record on appeal does not shed light on why counsel failed to request
a limiting instruction. Moreover, he
reasserts this claim in his petition for a writ of habeas corpus and provides a
response from trial counsel concerning his performance.
Under the
circumstances, we reject defendant’s claim on appeal and shall address it in
connection with his petition.
IV. Presentence Conduct Credit
Defendant
contends that the trial court erroneously capped his presentence conduct credit
at 15 percent of his presentence custody credit under sections 2933.1 and 667.5,
subdivision (c)(8), which together limit credit for those convicted of “[a]ny
felony in which the defendant inflicts great bodily injury on any person other
than an accomplice which has been charged and proved as provided for in Section
12022.7 . . . .” Defendant asserts that properly construed, the
applicable statutes limit conduct credit only if the prosecutor proves that the
defendant inflicted great bodily injury with
the specific intent to do so.
Because the prosecutor here did not prove that he attacked Doe with that
specific intent, the credit limitation was inapplicable. In his opening brief, defendant argued that
he was entitled to conduct credit at the rate of 50 percent of his presentence
custody credit. In a supplemental
opening brief, however, defendant claims that under the Equal Protection
Clauses of the state and federal Constitutions, he is entitled to retrospective
application of more recent amendments to sections 2933 and 4019, which allow
one-for-one credit equal to the amount of presentence
A. Applicable Statutes
Section
2933.1, subdivision (a) provides, “Notwithstanding any other law, any person
who is convicted of a felony offense listed in subdivision (c) of Section 667.5
shall accrue no more than 15 percent of worktime credit, as defined in Section
2933.”
Section
2933.1, subdivision (c) provides, “Notwithstanding Section 4019 or any other
provision of law, the maximum credit that may be earned against a period of
confinement in, or commitment to, a county jail, industrial farm, or road camp,
or a city jail, industrial farm, or road camp, following arrest and prior to
placement in the custody of the Director of Corrections, shall not exceed 15
percent of the actual period of confinement for any person specified in
subdivision (a).”
Section
667.5, subdivision (c) lists numerous felonies and includes “[a]ny felony in
which the defendant inflicts great bodily injury on any person other than an
accomplice which has been charged and proved as provided for in Section
12022.7 . . . . ”
(§ 667.5, subd. (c)(8).)
Section
12022.7 sets forth a number of enhancements for those who inflict great bodily
injury in the commission of a felony.
Among them is section 12022.7, subdivision (e), the enhancement alleged
and found true by the court in this case, which provides, in relevant part,
“Any person who personally inflicts great bodily injury under circumstances
involving domestic violence in the commission of a felony or attempted felony
shall be punished by an additional and consecutive term of imprisonment in the
state prison for three, four, or five years.”
B. Discussion
The rules
governing interpretation of statutes are settled. “ ‘As in any case involving statutory
interpretation, our fundamental task here is to determine the Legislature’s
intent so as to effectuate the law’s purpose.’
[Citations.] The well-established
rules for performing this task require us to begin by examining the statutory
language, giving it a plain and commonsense meaning. [Citation.]
We do not, however, consider the statutory language in isolation;
rather, we look to the statute’s entire substance in order to determine its
scope and purposes. [Citation.] That is, we construe the words in question in
context, keeping in mind the statute’s nature and obvious purposes. [Citation.]
We must harmonize the statute’s various parts by considering it in the
context of the statutory framework as a whole.
[Citation.] If the statutory
language is unambiguous, then its plain meaning controls. If, however, the language supports more than
one reasonable construction, then we may look to extrinsic aids, including the
ostensible objects to be achieved and the legislative history. [Citation.]”
(Los Angeles County Metropolitan Transp. Authority v. Alameda Produce
Market, LLC (2011) 52 Cal.4th 1100, 1106-1107.)
As
applicable here, sections 2933.1, subdivision (c), 667.5, subdivision (c), and
section 12022.7, subdivision (e), both individually and collectively, are
simple, direct, and unambiguous: the 15
percent limitation on conduct credit applies to those who were charged with an
enhancement under section 12022.7, subdivision (e) and found to have personally
inflicted great bodily injury under circumstances involving domestic
violence. Moreover, as the Attorney
General correctly points out, section 12022.7, subdivision (e), formerly
subdivision (d), does not require proof that the perpetrator acted with
specific intent to inflict injury. (
752, 754-755; see People v. Poroj
(2010) 190 Cal.App.4th 165, 172-173; compare Stats. 1993, ch. 608, § 2, p. 3262
[§ 12022.7 originally required specific intent] with Stats. 1995, ch. 341,
§ 1, pp. 1851-1852 [deleting requirement from all subdivisions].) Thus, the fact that the prosecutor did not
prove, and court did not find, that defendant hit Doe with the specific intent
to cause great bodily injury is irrelevant and does not preclude application
the 15 percent credit limitation.
In claiming
that the limitation required a finding of specific intent, defendant invokes
the rule of statutory construction that “where a statute incorporates by
reference another specific law, the reference is to that law as it then existed
and not as subsequently modified.” (See
(1948) 32 Cal.2d 53, 58-59.) Thus,
according to defendant, the reference to section 12022.7 in section 667.5,
subdivision (c)(8) must be read to incorporate the version of section 12022.7
that existed when that reference was added to section 667.5, subdivision (c)(8)
in 1977. He notes that at that time,
section 12022.7 required proof of specific intent to cause great bodily injury. We are not persuaded.
Even when
one statute specifically refers to another, the rule of construction invoked by
defendant cannot be used to achieve a result contrary to a
unambiguous language of the statute.
(See In re Jovan
& fn. 10 [legislative intent governed despite specific statutory
reference].) In other words, “ ‘ “ ‘the Legislature is presumed to have meant what it
said and the plain meaning of the language governs.’ ” [Citation.]
Therefore, if a statute is unambiguous, it must be applied according to
its terms. Judicial construction is neither necessary nor permitted.’ [Citations.]”
(People v. Pecci (1999) 72
Cal.App.4th 1500, 1505, italics added.)
For
example, in People v. Van Buren (2001)
93 Cal.App.4th 875 (Van Buren)
(disapproved on other grounds in People
v. Mosby (2004) 33 Cal.4th 353, 365, fn. 3), the defendant was convicted of
second degree robbery. The court applied the 15 percent credit
limitation. He invoked the same rule of
construction and asserted that the reference to section 667.5 in section 2933.1
referred to the version of section 667.5 applicable at the time of the
reference in 1994, and at that time, section 667.5 listed only residential
robbery with a personal use of a deadly or dangerous weapon as a violent
felony; did not include all robberies until 1998. Thus, defendant argued that the credit
limitation did not apply to him. The
court rejected this analysis holding instead that section 2933.1 incorporated
the contemporaneous version of section 667.5, subdivision (c) along with all
subsequent amendments. (
The court
acknowledged that the “special rule of statutory interpretation has been
developed for statutes that incorporate other statutes” but explained that
“[w]hen interpreting a statute . . . our primary task is to
determine the Legislature’s intent. [Citation.]
In cases ‘where it is questionable whether only the original language of
a statute is to be incorporated or whether the statutory scheme, along with
subsequent modifications, is to be incorporated, the determining factor will be
the legislative intent behind the incorporating statute.’ ” (Van
Buren, supra, 93 Cal.App.4th at p. 879.)
The court
held, “Here, section 2933.1 adopted a list of violent felonies set forth in
section 667.5, subdivision (c), through a specific reference to section
667.5. Nevertheless, section 667.5 is a
general statute which provides for enhanced punishment for persons convicted of
violent felonies. And, although it
enumerates specific crimes, section 667.5, subdivision (c), is a critical
element in the general body of law concerning treatment of violent
criminals. The scope of the statute,
together with its legislative history, establishes that section 2933.1 was
intended to apply generally to felonies listed in section 667.5, subdivision
(c), as that subdivision is amended from time to time.” (Van
Buren, supra, 93 Cal.App.4th at pp. 879-880.)
The court
further explained, “Section 2933.1 is not a sentencing statute. It is an expression of the Legislature’s
desire to delay the parole of violent felons, a common purpose it shares with
section 667.5, subdivision (c), and was enacted as a counterpart to the Three
Strikes law sentencing scheme. Section 667.5, subdivision (c), is intended to
identify ‘violent felonies’ and to single them out for special consideration
‘when imposing a sentence to display society’s condemnation for these extraordinary
crimes of violence against the person.’
(§ 667.5, subd. (c) [last paragraph]; [citation].) [¶] Similarly, section 2933.1 is
intended to protect the public from dangerous offenders who might otherwise be
released on parole on an earlier date. [Citation.]
By limiting custody credits for defendants convicted of violent
felonies, section 2933.1 complements the purpose of the Three Strikes law to
ensure longer prison sentences and greater punishment for those who commit
serious or violent felonies.
[Citation.] This intent can be
fully effectuated only if section
2933.1 incorporates offenses defined as ‘violent felonies' at the time of
enactment and thereafter.” (
880, italics added.)
The court
reviewed the legislative history of section 2933.1 and found confirmation that
“the Legislature contemplated application of section 2933.1 to the evolving
scheme of ‘extraordinary crimes of violence against the person’ to which
section 667.5, subdivision (c), is directed.
Certainly, the Legislature did not believe that the list of felonies in
section 667.5, subdivision (c), was immutable.
At the time section 2933.1 was passed in 1994, the Legislature had
already enacted several amendments to section 667.5, subdivision (c), adding to
the list of violent felonies.
[Citations.] [¶] The Legislature
must have contemplated that the category of violent felonies would continue to
change as offenses were added to or deleted from section 667.5, subdivision
(c), to reflect the experience of law enforcement, changes in crime statistics,
and the will of the public. Since these
changes would not alter the statute’s purpose to single out violent crimes for
special treatment, it is unlikely the Legislature intended to restrict section
2933.1 to the 1994 version of section 667.5, subdivision (c). [¶] Stated differently, there is no basis to
believe that the Legislature intended that the same defendant could be
sentenced as a violent felon without suffering a corresponding limitation on
custody credits, or that he or she could suffer a limitation on custody credit
without being sentenced as a violent felon.
It is also not reasonable to believe that the Legislature intended to
require a parallel amendment to section 2933.1 each time section 667.5,
subdivision (c), was amended.” (
881-882.)
We
find the analysis in Van Buren
persuasive and applicable here. We
recognize that in Van Buren, the
court dealt with whether section 2933.1 incorporated an amendment to section
667.5, not an amendment to section 12022.7.
However, we find this to be a distinction without a difference. Sections 667.5 and 12022.7 were both part of
the overall statutory scheme for dealing with violent offenders when section 2933.1
was enacted and bolstered that statutory scheme by adding a credit limitation
that would further protect the public by delaying the release of those
convicted violent acts and offenses.
(See Stats.1994, ch. 713, § 2, p. 3448 [§ 2933.1, declaration of urgency];
intended to apply generally to the felonies listed in section 667.5,
subdivision (c), as that subdivision is amended from time to time, so too, in
our view, sections 2933.1 and section 667.5, subdivision (c) were intended to
apply to any felony in which the defendant inflicts great bodily injury as
charged an proved under section 12022.7, as that
section is amended from time to time. Indeed, given the purpose of the statutory
scheme for protecting the public from violent offenders, we consider it
unreasonable to find that the 15 percent credit limitation does not apply to a
defendant who personally inflicted great bodily injury under circumstances
involving domestic violence and who, as a result, was subject to enhancement
punishment under 12022.7, subdivision (e).
VI. Disposition
The
judgment is affirmed.
______________________________________
RUSHING, P.J.
WE CONCUR:
____________________________________
ELIA, J.
___________________________________
WALSH, J.
name="_ftn1" title=""> [1] Apparently, in a separate case, defendant was
charged with knowingly violating a protective order. (Pen. Code, § 166, subd. (c)(1).) The two cases were consolidated, and after
trial, the court acquitted defendant of that charge.
All
unspecified statutory references are to the Penal Code.
name="_ftn2" title=""> [2] In addition to this appeal, defendant has
filed a petition for a writ of habeas corpus in which he asserts the same claim
of ineffective assistance (H037509).
Defendant has also filed an appeal from the denial of his post-judgment
motion for additional presentence conduct credit (H036822). In that appeal, defendant reasserts his claim
the court erred in limiting his conduct credit.
We
ordered that all three cases would be considered together.
In a
separate order, we dismiss the appeal in H036822 as moot; and in a separate
opinion, we deny the petition for a writ of habeas corpus.
