P. v. Sorrells
Filed 2/22/13 P. v. Sorrells CA2/3
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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
KEVIN DRATTON SORRELLS,
Defendant and Appellant.
B226997
B242513
(Los Angeles
County
Super. Ct.
No. MA042981)
APPEAL
from a judgment of the Superior Court
of
County, Jared D. Moses, Judge, and from the denial
of a post-judgment order. Affirmed.
Roberta
Simon, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Assistant Attorney General, Lawrence M. Daniels and Eric E.
Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Kevin
Dratton Sorrells appeals the judgment entered following his conviction by jury
of assault with a firearm, criminal
threats, dissuading a witness, false imprisonment by violence, child abuse,
assault by means likely to produce great bodily injury and two counts of
corporal injury to a spouse or cohabitant.
(Pen. Code, §§ 245, subd. (a)(2), 422, 136.1, subd. (b)(3),
236, 273a, subd. (a), 245, subd. (a)(1),
273.5, subd. (a).) With respect to the
convictions of assault with a firearm, criminal threats, dissuading a witness
and false imprisonment by violence, the jury found Sorrells personally used a
firearm within the meaning of Penal Code section 12022.5, subdivision (a). Sorrells admitted a prior conviction within
the meaning of the Three Strikes law (Pen. Code, § 667, subds. (b)-(i)) and
within the meaning of Penal Code section 667, subdivision (a). The trial court sentenced Sorrells to a term
of 41 years in state prison.
The evidence showed
Sorrells perpetrated domestic violence against five successive female
partners. The last two, Osada and Moore,
are the victims in this case. Sorrells
contends the trial court committed evidentiary
error, inter alia, in admitting evidence of uncharged incidents of domestic
violence committed against Sorrells’s three other victims. He also claims sentencing error and
inappropriate use of peremptory challenges.
We reject these claims of error and affirm the judgment. We also reject Sorrells’s claim of error in
the imposition of a $10,000 restitution fine pursuant to Penal Code
section 1202.4, subdivision (b).
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FACTS
AND PROCEDURAL BACKGROUND
1. Uncharged acts of domestic violence admitted to show propensity.
a. Rocio Sotelo.
Rocio Sotelo
was in a relationship with Sorrells from 1990 to 1996 and had a daughter with
him. On November 9, 1996, after Sorrells
and Sotelo separated, Sotelo arrived at her apartment and found Sorrells
present. Sorrells grabbed Sotelo’s
throat and choked her with both hands.
Sorrells began breaking things in the apartment with a baseball bat,
including a glass table and a television.
Sotelo’s oldest daughter ran from the apartment and had a neighbor call
the police. Sorrells hit Sotelo in the
head with the bat, rendering her semi-conscious and bleeding. She had several bruises and cuts from broken
glass. As a result of this incident,
Sorrells was convicted of corporal injury to a spouse or cohabitant in
violation of Penal Code section 273.5.
On May 16,
1998, Sorrells telephoned Sotelo and asked to see his daughter. Sotelo refused. Sorrells threatened that if Sotelo did not
let him pick up his daughter he would kill Sotelo’s family. Later that night, Sotelo’s daughter found
Sorrells inside the apartment. While Sotelo
called 911, Sorrells screamed at Sotelo, grabbed their child from her bed,
pushed Sotelo into a dresser and ran from the apartment with the child. As a result of this incident, Sorrells
was convicted of criminal threats in violation of Penal Code section 422.
b.
Brenda Macias
dated Sorrells from late 2001 to late 2002.
They have a daughter together.
After they started dating, Sorrels began to drink heavily and became
abusive. He threatened to kill Macias
and her family and he violently assaulted Macias numerous times. In one incident that occurred while Macias
was pregnant, Sorrells arrived home drunk, choked Macias with both hands and
said he would kill her.
At a barbeque
at the home of Sorrell’s father, Sorrells fought with Macias’s brothers and
called his father’s dogs to attack her brothers. After Macias moved to her mother’s house, she
saw Sorrells at a bar. He cursed her,
pushed her to the ground and dragged her.
Macias did not press charges because Sorrells claimed to have friends in
the Mexican mafia and he had threatened to have his friend shoot her mother and
brothers.
c. Tandy
Hall.
Tandy Hall dated Sorrells and then lived with him at his
father’s house. Their relationship began
in May of 2004 and lasted approximately five months. In June of 2004, after Hall became pregnant,
Sorrells began calling her names, punched her in the face and said he knew
people who would kill her. In June 2004,
Sorrells yelled at her while she was driving and punched her in the head. Hall left Sorrells for about a week but
returned when he agreed to stop drinking.
In late July or
early August 2004, Sorrells came home drunk and they argued. Hall tried to leave but Sorrells smashed her
driver’s side window, opened the car door and kicked her in the face and
arms. Her nose was gushing blood. Hall went inside, changed her clothes and
gathered her belongings. Sorrells yelled
Hall was not going to take his dog, kicked Hall to the ground and had his
father’s Rottweiler bite Hall while Sorrells kicked Hall in the stomach and
legs. Sorrells cleaned Hall’s wounds and
she fell asleep. She did not call the
police because she was afraid of Sorrells.
Hall has scars on her buttocks where the dog bit her.
2. The
charged offenses.
a.
Cheryl Osada
started dating Sorrells in July of 2005 and married him a year later. Approximately 10 months into the
relationship, Sorrells became abusive and there were several violent incidents.
In June of 2005, Osada, Sorrells,
and Sorrells’s daughter went to the beach.
Sorrells got drunk and called Osada names. While Osada drove home, Sorrells slapped her
and tried to grab the steering wheel.
Osada took Sorrells to his father’s house. As she drove home, Sorrells was suddenly
behind her, bumped into her car and followed Osada to her apartment where he
struck her face with the back of his hand.
Osada did not call the police because she thought it was an isolated
incident.
On another occasion, while Osada was bowling with coworkers,
Sorrells drunkenly accused one of Osada’s coworkers of wanting to date Osada
and the police were called. In another
incident, Sorrells pushed Osada to the ground, produced a handgun and struck
her with it on the head.
A couple of
months later, Sorrells told Osada to get out of bed. When she did, Sorrells knocked her to the
ground and put a pillow over her face, removing it just before Osada lost
consciousness. During another incident,
Sorrells knocked Osada down, held a knife to her throat and said he was going
to kill her. Osada’s hand was cut when
she tried to push the knife away.
Count 11: On October 31, 2006, Sorrells asked Osada to
bring him a towel and became angry when Osada stopped to give candy to trick or
treaters. He accused Osada of speaking
with a boyfriend at the door and struck her in the nose, knocking her
down.
In early 2007,
Sorrells suddenly grabbed Osada in bed, threw her on the ground and stepped on
her shoulder, resulting in a torn rotator cuff.
Counts 12 and
13: At a party at Osada’s house in July
of 2007, Sorrells yelled at Osada and threw a glass of wine at her. Osada tried to enter the house but Sorrells
pulled Osada down some stairs and hit her in the back of the head with the back
of his hand. When Osada’s son attempted
to intercede, Sorrells put his forearm to his throat and leaned him over the
balcony railing.
In July 2007,
Osada left Sorrells and moved to Florida.
On cross-examination, Osada admitted she kept in touch with Sorrells for
about six months after she moved.
b. Lori Moore (Counts 2 through 6, and 8).
Lori Moore
started dating Sorrells in August of 2007.
Four months later, Moore became pregnant and, a month after that, Moore
realized Sorrells had a drinking problem.
When he was drunk, Sorrels was violent and said he was a “shot callerâ€
who could order people’s deaths. Moore
believed Sorrells’s claims. Moore owned
an exotic bird shop. Sorrells frequently
worked at the shop.
Count 8: In January
2008, Sorrells telephoned Moore at 2:00 a.m., and said he was drunk and needed
her to give him a ride. Moore refused
because it was raining and she was in bed with her daughter. Sorrells called Moore several times and said,
“if you know what’s good for you, you better fucking come get me.†About an hour later, Moore heard Sorrells
enter the house. Moore went to the
living room where she saw Sorrells taking money from her purse. Sorrells said the money was his. He grabbed Moore’s neck and slammed her head
into the wall. When Sorrells released
Moore, she walked to the table and picked up her cell phone. Sorrells said, “no fucking way,†and grabbed
Moore’s neck with both hands. He took
Moore to the ground and squeezed her throat.
Moore lost consciousness. She did
not call the police because she was scared.
In May 2008,
Moore and Sorrells moved into a house in Palmdale. One afternoon, Sorrells came home drunk and
asked Moore if she had been cheating on him.
They argued and Sorrells grabbed Moore by the neck but released her when
Moore said, “real men don’t hit women.â€
Counts 2 through 6: On July 28, 2008, Sorrells came home drunk at
around midnight. Moore was in bed with
their six-day-old baby. When Moore spoke
about Sorrells not seeing the baby, Sorrells became irate and punched Moore in
the back of the head. Moore jumped up
and yelled he had almost hit the baby.
Sorrells demanded the baby and, when Moore refused to give him the
child, Sorrells produced a handgun from under the pillow, shoved it at Moore
and demanded the baby. After Moore
handed the child to Sorrells, he ordered Moore at gunpoint to move from the
doorway to the other side of the bedroom and told her to get on the
ground. Moore realized she had her cell
phone in her hand and asked to go to the bathroom where she intended to call
911. Sorrells refused the request and,
when Sorrells saw the phone in Moore’s hand, he said, “No fucking way. Give me the phone.†Sorrells opened the phone and called people
for a few minutes, then forcefully threw the phone over the bed where it broke
into pieces. The baby started to cry and
Sorrells told Moore to feed her. As
Moore breastfed the baby, Sorrells said he would kill Moore, her parents and
her sister and he would raise his daughter the way he wanted. Sorrells was rambling and in a rage, pointing
the gun “back and forth.â€
When Sorrell eventually went
downstairs, Moore tried to find the pieces of her cell phone and checked on her
six-year-old daughter. Moore then looked
downstairs and saw Sorrells had moved large boxes in front of the door to the
house. He returned to the bedroom with
the gun and told Moore to go to sleep.
The next
morning, Moore packed clothes for her older daughter and told Sorrells she had
to take the baby to the hospital.
Although Sorrells had returned Moore’s phone, she did not call the
police because Sorrells previously had threatened to harm her family if she
reported him. However, Moore’s doctor
notified the police. When Moore arrived
at her store, Sorrells ran to meet her and told her not to worry about what had
happened, explaining he had been drunk.
A social worker telephoned Moore and told her the police would come to
the store if she did not return to the hospital. Moore returned and told the police what had
occurred. A few days later, she also
told a detective what had happened.
At the
preliminary hearing, Moore testified she fabricated the allegations against
Sorrells, including his use of a gun, because she was angry at him. Moore also wrote letters to the Department of
Children and Family Services and the District Attorney’s Office stating she had
made everything up. At trial, Moore
testified she wrote the letters because Sorrells telephoned her from jail
almost every day begging her to change her story. Sorrells claimed he would stop drinking and
said the mafia may come after her for money he owed. Sorrells told Moore what to write in the
letters. At the end of November 2008,
Moore decided to tell the truth and ended contact with Sorrells.
c. Other
evidence.
Ron Garner was
an owner of a store near Moore’s store.
At the end of July or early August 2008, Sorrells told Garner the police
were looking for him and Sorrells needed Garner to hold a gun for him. Garner agreed but Sorrells later telephoned
and told Garner the gun already had been taken care of.
Carol Crabson, Chief Executive Officer of the Antelope
Valley Domestic Violence Council, testified as an expert on domestic
violence.
3. Defense case.
a. Sorrell’s
testimony.
Sorrells
testified in his own defense. Regarding
the incident involving Moore on July 28, 2008, Sorrells indicated he returned
to Palmdale at 11:30 p.m. after having worked at Moore’s shop and having
gone to his father’s house. He was not
drunk, they did not argue and Sorrells did not strike Moore, point a gun at
her, threaten to kill her or barricade the front door. Sorrells denied any violence or threats
against Moore or that he ever almost hit their baby. He does not own a gun. Sorrells claimed Moore was controlling and
accused him of cheating. Sorrells denied
attempting to get Moore to change her story or write letters. Sorrells testified Moore visited him in jail
twice a week and told him she was sorry that she lied to the police.
Sorrells
similarly denied every other instance of domestic violence related by Moore,
Osada, Hall, Macias and Sotelo and claimed he was not abusive to any of the
women who testified. Sorrells testified
he entered a plea in Sotelo’s case because his attorney at the time advised him
to do so.
b. Sorrell’s
father.
Felix Sorrells,
Sorrells’s father, testified Sotelo, Macias, and Hall lived with Sorrells in
Felix’s home at various times. At a
barbeque in 2007, Felix did not see Sorrells strike Osada, throw wine on her or
pull her down stairs. Felix recalled
Osada was drunk and she tripped and fell.
After Sorrells went to jail, Moore told Felix she lied to the police
because she was mad at Sorrells. Felix
was not aware that Sorrells had ever abused any woman. He never saw Sorrells drunk at the house and
never saw Sorrells with a gun.
CONTENTIONS
Sorrells contends the trial court
erroneously admitted evidence of uncharged incidents of domestic violence
against Sotelo, Macias and Hall. He
claims some of the acts were more than 10 years old and should have been excluded
under Evidence Code section 1109, subdivision (e). Also, the trial court abused its discretion
in admitting evidence of too many uncharged acts and in not excluding the
evidence under Evidence Code section 352 as more prejudicial than probative,
especially the dog-biting incident involving Hall which was more inflammatory
than the charged offenses.
Sorrells also
claims the trial court erroneously excluded evidence of the acquittal of
Moore’s ex-husband on charges similar to those she had made against
Sorrells. He further asserts the
trial court committed sentencing error
and the prosecutor made inappropriate use of peremptory challenges within the
meaning of Batson v. Kentucky (1986)
476 U.S. 79, 85 [90 L.Ed.2d 69] and People
v. Wheeler (1978) 22 Cal.3d 258, 276, overruled in
part by Johnson v. California (2005)
545 U.S. 162, 168 [162 L.Ed.2d 129].
In a separate
appeal from the denial of a post judgment order, which we previously ordered to
be considered concurrently with this appeal, appointed appellate counsel filed
a Wende brief. (People
v. Wende (1979) 25 Cal.3d 436, 443.)
In a supplemental opening brief filed in propria persona, Sorrells
contends the trial court’s order directing payment of a $10,000 restitution
fine was excessive and was not supported by substantial evidence.
1.
The trial court committed no reversible error in the admission of
evidence of uncharged acts of domestic violence to show propensity.
a. Evidence
Code section 1109.
Evidence Code section 1109 creates an exception to the
general prohibition against evidence of a defendant’s propensity to commit
crime found in Evidence Code section 1101.
Section 1109, subdivision (a)(1) provides: “[I]n a criminal action in which the
defendant is accused of an offense involving domestic violence, evidence of the
defendant’s commission of other domestic violence is not made inadmissible by
Section 1101 if the evidence is not inadmissible pursuant to Section 352.â€
The exception
of Evidence Code section 1109 was created “ ‘because of the typically
repetitive nature of domestic violence crimes, and because of the acute
difficulties of proof associated with frequently uncooperative victims and
third-party witnesses . . . who may fear retaliation from the abuser and do not
wish to become involved.’
[Citation.]†(People
v. Brown (2000) 77 Cal.App.4th 1324, 1333.) If evidence is
admitted under Evidence Code section 1109, a jury may infer from the evidence
that the defendant had a disposition or propensity to commit other offenses
involving domestic violence and may infer he was likely to commit and did
commit the current domestic violence offense.
(People v. Johnson (2010) 185 Cal.App.4th 520, 528.)
We apply an abuse of discretion standard to a trial court’s
admission of prior acts of domestic violence under Evidence
Code section 1109 and its refusal to exclude the evidence under section
Johnson, supra, 185 Cal.App.4th at p. 531; People v. Poplar (1999)
70 Cal.App.4th 1129, 1138.)
b. Additional
background.
Prior to trial,
the defense moved to exclude the testimony of Hall and Macias regarding
Sorrells’s prior acts of domestic violence.
At the hearing on the motion, the trial court summarized Sorrells’s
relationships with the witnesses and found an ongoing, consistent course of
domestic violence commencing in 1996 and ending with the arrest in this
case. The trial court indicated
Sorrells’s conduct fell “squarely within the purview of Evidence Code section
1109.†Thus, the trial court was
inclined to allow evidence related to Sorrells’s treatment of Hall and
Macias.
In attempting
to dissuade the trial court from its indicated ruling, defense counsel
addressed the dog attack on Hall, referencing the inflammatory pictures of her
injuries and noting Hall previously had testified the dog’s eyes rolled back
and Hall thought she was going to die.
The trial court ruled the dog attack was highly probative and Evidence
Code section 352 did not require its exclusion.
The trial court also indicated the prosecutor could corroborate Hall’s
testimony with photographs of the injuries, subject to the trial court’s
approval.
The trial court
then inquired whether defense counsel wished to be heard with respect to
Sotelo. After defense counsel and
Sorrells conferred sotto voce, defense counsel stated, “Your Honor, we have no
issue with Ms. Sotelo’s testimony, whatever that may be.†The trial court responded: “All right.
So I will permit that . . . .â€
As to Macias,
defense counsel argued lack of corroboration.
Defense counsel also asserted Macias had been in contact with other
victims and her allegations were contrived.
The trial court ruled Sorrells’s conduct with Macias was similar to his
conduct with the other victims, noted Macias filed police reports and ruled
Macias could testify with respect to acts of prior domestic violence. Also, evidence of Sorrell’s prior convictions
of criminal threats and corporal injury to a spouse or cohabitant could be
introduced. (Pen. Code, §§ 422, 273.5.)
c. Sorrells
invited any error in the admission of Sotelo’s testimony.
Sorrells
contends the trial court erroneously admitted evidence of prior acts of
domestic violence more than 10 years old in violation of Evidence Code section
1109, subdivision (e) which states:
“Evidence of acts occurring more than 10 years before the charged
offense is inadmissible under this section, unless the court determines that
the admission of this evidence is in the interest of justice.â€
Specifically, Sorrells asserts the
first offense against Sotelo occurred on November 9, 1996, more than 10
years before the latest charged offenses against Moore, which occurred in July
of 2008. Further, the trial court did
not consider whether evidence of these remote offenses would serve the interest
of justice as required by Evidence Code section 1109, subdivision (e).
However, at the
hearing on the admissibility of the evidence, defense counsel conferred with
Sotelo, then advised the trial court the defense had “no issue with
Ms. Sotelo’s testimony, whatever that may be.†Thus, Sorrells not only failed to object but
affirmatively indicated it had no concern with respect to Sotelo’s
testimony. He cannot now complain
the testimony erroneously was admitted.
Indeed, Sorrells essentially invited any error. (See, e.g., People
v. Seaton (2001) 26 Cal.4th 598, 638-639 [defendant’s stipulation to excuse
juror rendered any error in excusing juror
Homes, LP v. California Costal Com. (2008) 167 Cal.App.4th 830, 842 [a
party who induces an error is estopped under the doctrine
of invited error from asserting the
alleged error as grounds for reversal].)
Alternatively,
Sorrells claims defense counsel’s failure to object to Sotelo’s testimony on
the ground it was too remote constituted ineffective assistance of counsel as
there is a reasonable probability of a more favorable result absent counsel’s
omission. (See Strickland
v. Washington (1984) 466 U.S. 668, 687 [80
L.Ed.2d 674].) However, the first
uncharged offense against Sotelo on November 9, 1996, occurred within 10 years
of the first charged offense against Osada on October 31, 2006. Because Evidence Code section 1109,
subdivision (e) did not apply, any objection under Evidence Code section 1109,
subdivision (e) would have been futile.
(See People v. Anderson
(2001) 25 Cal.4th 543, 587 [counsel is not required to proffer futile
objections]; People v. Constancio (1974) 42 Cal.App.3d 533, 546
[counsel need not undertake useless procedural challenges].)
Additionally,
even had defense counsel objected, it is apparent, based on the trial court’s
remarks at the hearing, evidence of Sorrells mistreatment of Sotelo would have
been admitted in the interest of justice to establish the complete picture of
Sorrells’s propensity to commit domestic violence. Thus, Sorrells is unable to demonstrate
prejudice attributable to counsel’s asserted omission.
d. The
trial court committed no error in weighing prejudice against
probative value.
Sorrells
contends the trial court erred in finding the uncharged offenses more probative
than prejudicial and in admitting evidence of too many uncharged acts. He claims the sheer number of prior
offenses required numerous minitrials which consumed a great deal of time and
the evidence confused the jury. Also,
the dog-biting incident involving Hall was more inflammatory than the charged
offenses. (See People
v. Harris (1998) 60 Cal.App.4th
727, 738-741.)
Sorrells assert
the trial court should have, at minimum, excluded some of the uncharged
acts. He claims that, absent the
uncharged offenses, or with fewer of them, it is reasonably likely the jury
would have believed Sorrells rather than Osada and Moore. Sorrells notes no gun was ever found, his father
testified Osada tripped and Moore recanted her allegations. Further, at Sorrells’s first trial, Sotelo
and Macias did not testify and the jury hung.
Sorrells concludes a more favorable result is reasonably likely absent
the uncharged acts of domestic violence.
Sorrells’s
claims are not persuasive.
In
enacting Evidence Code section 1109, the Legislature
intended to allow evidence of prior acts of domestic violence to prove current
crimes of domestic violence because such crimes are frequently credibility
contests between the victim and the perpetrator. (See People v. Jennings (2000) 81
Cal.App.4th 1301, 1313.) Recognizing the
likelihood a defendant who has previously committed these acts will repeat this
type of offense, the Legislature intended to allow propensity evidence to
promote the victim’s version of the incident, unless the evidence is unduly
inflammatory or would create confusion or mislead the jurors. (See People v. Hoover (2000) 77
Cal.App.4th 1020, 1027-1028.) Thus, the
fact the trial was a credibility contest between Sorrells and the victims is
not a reason to exclude the evidence but is precisely why the Legislature
enacted the provision.
Moreover, the
trial court found this case fell “squarely within†Evidence Code section 1109. The trial court engaged in the required
balancing of probative value, which the trial court found was extremely high,
against the prejudicial effect of the evidence, and found the evidence
admissible. The trial court’s ruling was
reasonable and sufficient to indicate it carefully had applied Evidence Code
section 352, and properly found good cause to admit the domestic violence
evidence.
Regarding
Sorrells’s claim the trial court admitted too many prior incidents, although
the testimony of Sotelo, Macias and Hall increased the length of the trial,
Sorrells cannot show he was unduly prejudiced by an undue consumption of time
required to elicit their testimony.
Further, because the charged and uncharged acts were upon different
women, it is unlikely the jury confused the uncharged acts with the charged
acts. Also, even the most inflammatory
of the uncharged acts, the dog biting incident, was less inflammatory than the
charged conduct, which included the use of a handgun by Sorrells. Additionally, evidence
of the prior assaults came from independent sources, which reduced the danger
of fabrication. (See People v. Ewoldt
(1994) 7 Cal.4th 380, 404-405.) Finally,
Sorrells was convicted of offenses committed against Sotelo, thereby reducing
the likelihood the jury might convict Sorrells in this case in order to punish
him for prior offenses. (
In sum, the
value of the evidence was great and the uncharged acts bore strong similarities
to the charged acts. The uncharged acts
also demonstrated Sorrells’s unrelenting pattern of domestic violence. “Painting a person faithfully is not, of
itself, unfair.†(People v. Harris,
supra, 60 Cal.App.4th at p. 737.)
We therefore conclude the trial court properly admitted evidence of
uncharged acts of domestic violence perpetrated against Hall, Macias, and
Sotelo.
indicating Moore’s ex-husband had been acquitted of charges he committed
domestic violence against Moore.
During
cross-examination of Moore, Sorrells sought to inquire whether Moore had
prosecuted a criminal action against Siavashrastegar Aria, Moore’s ex-husband,
in which Aria had been acquitted of domestic violence against Moore based on
the same type of allegations Moore currently was making against Sorrells. The trial court indicated that, under
Evidence Code section 352, the evidence was “very far afield†from whether
Moore had experienced prior domestic violence and was not relevant, would consume
an undue amount of time and may tend to confuse or mislead the jury. The trial court noted the defense nonetheless
could call Aria as a witness and question him regarding Moore’s allegations of
domestic violence. The trial court also
indicated it would permit the defense to ask Moore, “Did you falsely accuse
your ex-husband?†The trial court
reiterated its view the trial and its result were irrelevant but indicated the
defense could inquire if Moore made accusations against a former husband and
whether they were true, and then call Aria and ask if Moore made false
accusations.
Sorrell’s
contends Aria’s acquittal on charges of domestic violence against Moore was
probative on the issue of Moore’s credibility, would have helped to offset the
risk of prejudice from the propensity evidence and its exclusion was
prejudicial error.
We
disagree. As the trial court noted, the
result of Aria’s prosecution for domestic violence against Moore, at best, was
tangential to the truth of the allegations against Sorrells. Also, the trial court was concerned the
evidence would lead to an undue consumption of time litigating the facts of
Aria’s criminal case and would confuse the jury. On the record presented, these were
appropriate concerns.
Further, the trial court allowed
Sorrells to question Moore about her allegations against Aria and indicated
Sorrells could ask Aria whether Moore’s allegations were false. However, Sorrells did not call Aria as a
witness. The trial court’s rulings
struck an appropriate balance between Sorrells’s right to present evidence and
the trial court’s obligation to control the proceedings.
People
v. Griffin (1967) 66 Cal.2d 459, cited by
Sorrells, is distinguishable. In
evidence indicating the defendant
committed offenses similar to the offense for which he was on trial. Griffin held
the defendant was entitled to present evidence of the defendant’s acquittal, if
any, of such crimes. (
charged with crimes. Accordingly, Griffin
is inapplicable.
In sum,
Sorrells’s claim of error fails.
3. No
cumulative evidentiary error.
Sorrells
contends that, even if none of the foregoing errors warrants reversal, the
cumulative impact of all of the errors caused substantial prejudice and rendered
the trial fundamentally unfair. However,
there was no error, and, to the extent there was error, Sorrells has failed to
demonstrate prejudice. Moreover, the
evidence overwhelmingly established Sorrells’s guilt. Therefore, whether considered individually or
collectively, any claimed evidentiary error was harmless.
4.
a.
The trial court commenced imposition of sentence by stating
the evidence had shown Sorrells to be a serial abuser of women with a long, violent
history. The trial court noted five
separate women had testified about his abuse, “telling stories that were
remarkably similar . . . .†The trial
court found this evidence credible and indicated, in imposing sentence, it
would consider that Sorrells “took the stand and said that essentially nothing
ever happened, it never happened, and that each and every one of these women
lied about each and every event. And the
jury rejected that testimony out of hand, and I reject it, as well. I find the defendant perjured himself.â€
The trial court selected count 5, assault with a firearm on
Moore during the bedroom incident of July 28, 2008, as the principal term. The trial court imposed the high base term
because Sorrells engaged in violent conduct that indicated a serious danger to
society (Cal. Rules of Court, rule 4.421, subd. (b)(1)), his prior convictions
as an adult were numerous and of increasing seriousness (Cal. Rules of Court,
rule 4.421, subd. (b)(2)), he had served a prior prison term (Cal. Rules of
Court, rule 4.421, subd. (b)(3)), and his prior performance on probation or
parole was unsatisfactory. Also, the
victim was particularly vulnerable in that a baby was present during the
incident (Cal. Rules of Court, rule 4.421, subd. (a)(3)), Sorrells was
intoxicated and “waving a gun around,†and there were no factors in
mitigation. For the same reasons, the
trial court imposed the high base term on the firearm enhancement. The trial court imposed a consecutive term
for child abuse, noting the offense had a separate victim and Sorrell’s conduct
placed the child at very high risk.
The trial court
indicated it was not convinced by defense counsel’s argument Penal Code
section 654 applied to count 3, criminal threats. The trial court reviewed the facts of the
incident which indicated Moore was in bed with her baby when Sorrells arrived
home angry and intoxicated. Sorrells
punched Moore in the back of the head, almost striking the baby. Sorrells cursed Moore, produced a gun from
under a pillow and demanded the baby.
After Moore handed Sorrells the baby, he pointed the gun at Moore and
ordered her to the floor. During this
time, Moore had a phone in her hand, which Sorrells took from her, saying, “No
fucking way.†Sorrells went through the
phone’s call log, telephoned people and threw the phone across the room,
breaking it. During this time, the baby
was crying and Sorrells told Moore to feed the child. When Sorrells threatened to kill Moore and
her parents, he was holding the gun and pacing, rambling.
The trial court
found the criminal threats constituted a separate offense. Although any term imposed for false
imprisonment had to be stayed, the criminal threats occurred “after the assault
with a firearm, and came after the false imprisonment, [and] was a separate,
criminal act†with the objective of terrorizing Moore by threatening her and
her family.
The trial court
imposed a consecutive term on count 3.
The trial court noted that, although counts 3, 4 and 5 were committed in
the same general time frame, count 3 constituted a separate crime of violence
against the same victim. (Cal. Rules of
Court, rule 4.425 (a)(1).)
The trial court
found count 4, dissuading a witness, also constituted a separate act of
violence or threat of violence in which Sorrells took Moore’s telephone to
prevent her from calling the police. The
trial court found this was “a completely separate objective†and imposed a
consecutive term and firearm use enhancement.
b. Penal
Code Section 654 does not apply to counts 3 and 4.
Sorrells
contends the sentences imposed for criminal threats and dissuading a witness,
counts 3 and 4, should have been stayed pursuant to Penal Code section
654. Sorrells claims he engaged in an
indivisible course of conduct on July 28, 2008, and counts 3 and 4, as well as
count 5, assault with a firearm which the trial court selected as the principle
term, had but one objective, to control Moore.
Sorrells claims the criminal threats were incident to forcing Moore to
the ground and confining her. Also,
Sorrells needed to take Moore’s phone in order to continue to confine her. Therefore, the sentences imposed for criminal
threats and dissuading a witness must be stayed. (People v.
Mendoza (1997) 59 Cal.App.4th
1333, 1346.)
Sorrells’s claims are
unavailing. “The
purpose of section 654 is to prevent multiple punishment for a single act or
omission, even though that act or omission violates more than one statute and
thus constitutes more than one crime.
Although the distinct crimes may be charged in separate counts and may
result in multiple verdicts of guilt, the trial court may impose sentence for
only one offense . . . .†(People v.
Liu (1996) 46 Cal.App.4th 1119, 1135.)
“ ‘Whether a course of criminal conduct is divisible and
therefore gives rise to more than one act within the meaning of section 654
depends on the intent and objective of the actor. If all of the offenses were incident to one
objective, the defendant may be punished for any one of such offenses but not
for more than one.’ †(
336.) “Our case law has found
multiple criminal objectives to be a predicate for multiple punishment . . . in
circumstances that involve, or arguably involve, multiple acts.†(People v. Mesa (2012) 54 Cal.4th 191,
199.)
trial court’s express or implied determination that two crimes were separate,
involving separate objectives, must be upheld on appeal if supported by
substantial evidence.†(People v.
Brents (2012) 53 Cal.4th 599, 618.)
Here, the trial
court reasonably could find Sorrells assaulted Moore with the firearm in order
to force her to give him the baby. When
he later took her telephone and broke it against the wall, his intent was to
prevent her from calling the police.
After Sorrells smashed Moore’s phone, the baby began to cry and Sorrells
told Moore to feed the child. While
Moore breastfed the baby, Sorrells threatened to kill Moore, her parents and
her sister. Because the fear instilled
by this threat was not the same fear engendered by the assault with a firearm,
the trial court properly could conclude Sorrells entertained multiple criminal
objectives.
We find no
abuse of discretion or lack of substantial evidence to support these findings.
c.
imposed.
Sorrells contends the trial court erred in imposing
consecutive rather than concurrent terms on counts 3 and 4, criminal threats
and dissuading a witness. He claims
there was not substantial evidence to support the trial court’s finding the
crimes and their objectives were predominantly independent of each other and
the acts did not constitute separate acts of violence or threats of violence
but were a single violent action.
Rule 4.425 of
the California Rules of Court sets out “[c]riteria affecting the decision to
impose consecutive rather than concurrent sentences,†which include that the
“crimes and their objectives were predominantly independent of each other,†the
crimes “involved separate acts of violence or threats of violence†and the “crimes
were committed at different times or separate places, rather than being
committed so closely in time and place as to indicate a single period of
aberrant behavior.†(Cal. Rules of
Court, rule 4.425(a)(1)-(3).)
Here, the trial court determined counts 3, 4, and 5 were
independent of each other, involved separate acts of violence, and were
committed at separate times.
Accordingly, the court did not abuse its discretion in imposing
consecutive sentences.
d. Perjury
properly considered as an aggravating factor.
Sorrells
contends the trial court erred in considering perjury as an aggravating factor
in sentencing. He claims the trial court
failed to make necessary on-the-record findings as to each element of perjury. (People
v. Howard (1993) 17 Cal.App.4th
999, 1001, 1004 [a willful statement, under oath, of any
material matter the witness knows to be false].) Sorrells asserts he may raise the issue for
the first time on appeal because imposition of a greater punishment without a
finding Sorrells committed perjury amounts to constitutional error. He also asserts defense counsel rendered
ineffective assistance in failing to object to the trial court’s consideration
of an improper aggravating factor that might have unfairly tipped the
sentencing balance. (See Strickland
v. Washington, supra, 466 U.S. at pp.
687-688.)
Even if Sorrells’s claim is not forfeited for failure to
object to the trial court’s use of perjury as an aggravating factor (but see People
v. Scott (1994) 9 Cal.4th 331, 353), the trial
court properly could consider Sorrell’s perjury in this case. People
v. Howard stated
“an aggravated sentence should not be imposed routinely simply because the
jury, by convicting the defendant, obviously did not accept his or her
testimony. We are particularly concerned
because in so many cases, as is true here, the only evidence before the jury is
the conflicting testimony of the victim and the defendant. The routine use of perjury as an aggravating
factor in such cases would violate due process by chilling the defendant’s
constitutional right to testify.†(People v. Howard, supra, 17 Cal.App.4th at p.
1005.)
The trial court
in this case did not rely on the fact the defendant was convicted to support a
finding he committed perjury, as was the fear in Howard. Rather, the trial
court found Sorrells testified each of the five women who testified against him
“lied about each and every event.†The
trial court indicated it rejected Sorrells’s testimony as unworthy of
belief. Thus, the trial court found
Sorrells made willful statements under oath regarding material matters Sorrells
knew to be false. These findings
fulfilled the elements of perjury, thereby permitting the trial court to
consider Sorrells’s perjury as an aggravating factor.
Moreover, even
if the trial court did not make the necessary findings, any error was
harmless. The trial court cited numerous
aggravating factors to support its sentencing choices. Even removing perjury from the equation, a
plethora of aggravating factors remains.
Thus, a different outcome is not reasonably probable. (People
v. Osband (1996) 13 Cal.4th 622, 728.)
In sum, the
trial court’s consideration of Sorrells’s perjury was not inappropriate and,
even if error is assumed, it was harmless on the facts presented.
5.
No reversible error in the denial
of Sorrells’s Batson/Wheeler motion.
a.
prosecutor’s use of peremptory challenges to strike prospective jurors on the
basis of group bias - that is,
bias against ‘members of an identifiable group distinguished on racial,
religious, ethnic, or similar grounds’ - violates the right of a criminal
defendant to trial by a jury drawn from a representative cross-section of the
community under article I, section 16 of the state Constitution. [Citations.]â€
[Citation.] “Such a practice also
violates the defendant’s right to equal protection under the 4teenth
Amendment. [Citations.]†’ â€
(2010) 48 Cal.4th 574, 611.)
the exercise of peremptory strikes, the trial court follows a three-step
procedure. “First, the defendant must
make out a prima facie case ‘by showing that the totality of the relevant facts
gives rise to an inference of discriminatory purpose.’ [Citations.]
Second, once the defendant has made out a prima facie case, the ‘burden
shifts to the State to explain adequately the racial exclusion’ by offering
permissible race-neutral justifications for the strikes. [Citations.]
Third, ‘[i]f a race-neutral explanation is tendered, the trial court
must then decide . . . whether the opponent of the strike has proved purposeful
racial
discrimination.’ [Citation.]â€
(Johnson v. California, supra, 545 U.S. at p. 168, fn. omitted.)
a prima facie case “by producing evidence sufficient to permit the trial judge
to draw an inference that discrimination has occurred.†(Johnson v. California, supra, 545
U.S. at p. 170; see also People v. Taylor, supra, 48 Cal.4th at
p. 614.) When the defendant makes a
prima facie case, the burden shifts to the prosecutor to offer permissible
race-neutral justifications for the peremptory challenge. (People v. Lenix (2008) 44 Cal.4th
602, 612.)
The proffered
explanation need not rise to a challenge for cause. Even trivial reasons, if genuine and neutral,
will suffice to justify a peremptory challenge.
(People
v. Arias (1996)
13 Cal.4th 92, 136.) The trial court must
determine whether the proffered explanation is a
1083, 1122.)
the genuineness of the stated reason for a peremptory challenge often depends
upon viewing demeanor and assessing the credibility of the attorney who offers
the reason, and a determination of an attorney’s state of mind based on such
factors is best left to the direct observer, i.e., the trial judge. (People v. Stevens (2007) 41 Cal.4th
182, 198.) Thus, a trial court’s
conclusion a race-neutral reason is genuine will be upheld on appeal when it is
supported by substantial evidence in the record. (People v. Ward (2005) 36 Cal.4th 186,
200.)
b. Factual
background.
During voir
dire, Sorrells asserted the prosecution had exercised peremptory challenges as
to each of the three African-American prospective jurors on the panel, Number
5, Number 9 and Number 16. The trial
court agreed, noting it appeared no African-Americans remained and asked the
prosecutor to justify the challenges.
As to Number 5,
the prosecutor explained the prospective juror was an engineer and the
prosecutor never allowed engineers on a jury, stating they are “hypercriticalâ€
and expect perfection. The prosecutor
noted the People also had exercised a peremptory challenge to excuse a
Caucasian who was an engineer.
Regarding
Number 9, an African-American female, the prosecutor was concerned because she
had spoken of people “getting the short end of the stick.†Also, Number 9 and Number 18 had been sitting
in the back of the courtroom joking and laughing. The trial court indicated it had
observed the same conduct and had been on the verge of admonishing them. The prosecutor also noted Number 9 had spoken
about racial profiling in the system and had noted that Sorrells is
African-American and the prosecutor is Caucasian. Even though Number 9 said she could be fair,
the prosecutor thought Number 9 had “some issues.†Based on Number 9’s belief there is
“pervasive racial bias in the system and her behavior during jury selection . .
. I think she’s going to be biased against me or the State.â€
With respect to juror Number 16,
an African-American male, the prosecutor noted the prospective juror was eager
to talk about friends and family members who had been mistreated by law
enforcement and the system, and Number 16 believed racial profiling
occurred. Although Number 16 dressed
nicely and seemed to answer questions well, “when we started on that stuff, I
just realized he’s got some issues, too.â€
Defense counsel
responded Numbers 9 and 16 had been candid and indicated on their
questionnaires they had been racially profiled.
If that were a valid basis for a peremptory challenge, every person of
color who had ever resided in a neighborhood of lower socioeconomic status
could be excluded from jury service.
Also, none of the prospective jurors said they could not be fair.
The trial court
indicated it had evaluated the prosecutor’s reasons for exercising the
challenges to determine whether they were pretextual and had compared the
prosecutor’s treatment of the challenged jurors with the prosecutor’s treatment
of other similarly situated jurors and had found the prosecutor had provided
race neutral reasons for the peremptory challenges. As to Number 5, the trial court accepted the
prosecutor’s claimed dislike of engineers and noted the prosecutor also excused
a Caucasian engineer.
As to Number 9,
the trial court noted the prospective juror expressed much concern with law
enforcement. Also, Number 9 indicated
her father had spent five years in state prison, he was beaten by guards and
the prospective juror had a problem with the state prison system. She “said some people get the short end of
the stick, that there’s racial profiling.â€
She also once had a gun held on her by police officers, and her fiancé had
been arrested and jailed for drugs before she knew him.
The trial court
indicated Number 16 believed he was the subject of racial profiling, had
problems with law enforcement and had been arrested at 13 years of age for
shoplifting. The trial court concluded
these were legitimate race-neutral reasons and denied Sorrells’s
motion.
c. Sorrells’s
claims lack merit.
Sorrells
contends the prosecutor’s reasons were pretextual and were not
case-specific. (People v. Alvarez (1996)
14 Cal.4th 155, 197.) Also,
the reasons offered by the prosecutor were inherently implausible or were not
supported by the record. (People v. Ward, supra,
36 Cal.4th at p. 205.)
As to Number 5, a retired engineer, Sorrells claims the
prosecutor’s stated reason, he always excused engineers because they are
hypercritical and expect perfection, seems ridiculous. He asserts the prosecutor failed to identify
how an engineer’s precision would prevent impartiality. Sorrells notes the prosecutor asked Number 5
no questions before the peremptory challenge, demonstrating the prosecutor’s
intent to excuse the juror.
However,
neither the reasonableness of the proffered explanation nor the number of
questions the prosecutor might ask a prospective juror is determinative. “All that matters is that the prosecutor’s
reason for exercising the peremptory challenge is sincere and legitimate,
legitimate in the sense of being nondiscriminatory. ‘[A] “legitimate reason†is not a reason that
makes sense, but a reason that does not deny equal protection. [Citations.]’
[Citation.]†(People
v. Reynoso (2003) 31 Cal.4th 903, 924; People
v. Williams (1997) 16 Cal.4th 635, 664.) Further, given that the prosecutor also
excused a Caucasian engineer, the record supports the trial court’s finding the
prosecutor’s peremptory challenge to Number 5 because he was an engineer was a
valid race-neutral reason.
Sorrells
asserts the prosecutor excused Number 9 without asking the prospective juror
any questions, then noted number 9 had been concerned about people getting the
short end of the stick and that she had been joking and laughing in the back of
the courtroom.
The
fact Number 9 acted disrespectfully during voir dire while seated in the back
of the courtroom, standing alone, would appear to have been an appropriate
basis upon which to excuse the prospective juror without asking her a
question. The prosecutor remarked on the
prospective juror’s conduct and the trial court confirmed the prosecutor’s
observations. Also, Number 9’s personal
experience with racial profiling and her negative view of law enforcement were
sufficient race-neutral reasons for the prosecutor to excuse her. (See People
v. Clark (2011) 52 Cal.4th 856, 907 [distrust of the criminal justice
system is a race-neutral reason for excusal]; People
v. Fields (1983) 35 Cal.3d 329, 348 [“[P]ersons
previously arrested, crime victims, believers in law and order, etc. are not
identifiable groups whose representation is essential to a constitutional
venire.â€])
Sorrells
complains the trial court inappropriately added its own views in evaluating the
prosecutor’s reasons for excusing Number 9, noting her father had been beaten
by prison guards while incarcerated, she had been held at gunpoint by police
officers, and her fiancé had been arrested and jailed for drugs before she knew
him. Sorrells claims the trial court
improperly included these additional considerations among the race-neutral
reasons for excusing Number 9, even though the prosecutor did not state
them. (Paulino v. Castro (9th
Cir. 2004) 371 F.3d 1083, 1090.)
Paulino, the case cited by
Sorrells, involved a case in which the trial court offered,
as to why the prosecutor may have struck five potential jurors without ever
hearing from the prosecutor.
hearing at which the prosecution could present evidence as to the prosecutor’s
reasons for the peremptory challenges.
Here, the trial court did not shortcut the three step
prosecutor to state reasons for the challenges.
The trial court was entitled to
corroborate the prosecutor’s stated reasons with its own observations about the
voir dire process in order to support its
finding the prosecutor’s reason were race-neutral. Thus, Paulino
is inapplicable.
With respect to
Number 16, Sorrells notes the prospective juror and Number 9 answered questions
about racial profiling honestly but were excused. Sorrells asserts all African-Americans are
concerned about racial profiling.
Sorrells concludes the prosecutor’s concern about racial profiling was a
proxy for group membership, citing United
States v. Bishop (9th Cir.
1992) 959 F.2d 820, 821, 825-826, overruled on other
grounds by United States v. Nevils (9th Cir. 2010) 598 F.3d 1158, 1167.
As noted in
Cal.4th 153, 190, Bishop, a decision of a lower federal court interpreting federal law, is
not binding on state courts. Further,
In Bishop, the
prosecutor exercised a peremptory challenge to exclude an African-American
prospective juror because the prosecutor believed people from
Compton are likely
to be hostile
to the police
because they have
witnessed police activity
and are inured
to violence. Bishop
found the proffered reasons were “
in all criminal
trials to residents
of poor, predominantly
black neighborhoods.
to little more
than the assumption
that one who
by poor black
people could not
fairly try a
States v. Bishop, supra, 959 F.2d at p. 825.)
Here, the prosecutor did not seek to
excuse Number 9 or Number 16 because they lived in a predominately
African-American area or based on any presumptions about their beliefs but
because they stated on the jury questionnaire they believed racial profiling
occurred. Thus, the peremptory
challenges were not impermissibly based on the prosecutor’s assumptions about
the prospective jurors, but on the prospective
jurors’ belief they had been victims of racial profiling by law enforcement, a
valid race-neutral reason for excusing the prospective jurors.
To the extent Sorrells contends a prosecutor cannot rely on
the negative attitudes of an African-American prospective juror toward the
criminal justice system in exercising peremptory challenges because such
attitudes are so widespread among African-Americans as to constitute a
surrogate for race, this claim expressly was rejected in People v. Calvin (2008) 159 Cal.App.4th 1377, 1383, citing
491. We agree with
Calvin’s analysis of the issue. As Calvin
concluded, a prosecutor properly may justify peremptory challenges based on the
information found in a prospective juror’s questionnaire and the fact many
other African-Americans share similar attitudes “does not convert the
prosecutor’s challenge into intentional race-based discrimination. [Citations.]â€
(People v. Calvin, supra, at
p. 1388.)
In sum, we
conclude the prosecutor stated race-neutral reasons for exercising the
peremptory challenges and, because the trial court made “a sincere and reasoned
effort to evaluate the nondiscriminatory justifications offered, its
conclusions are entitled to deference on appeal.†(People
v. Burgener (2003) 29 Cal.4th 833, 864.)
6. Independent
review of the record in B242513 reveals no error.
On May 10,
2012, Sorrells filed an ex parte motion to strike or modify an order for
restitution, fees and fines. The trial
court denied Sorrells’s motion on June 11, 2012, and Sorrells filed a separate
notice of appeal from that denial.
Appointed
appellate counsel filed a Wende brief
(People v. Wende, supra,
25 Cal.3d at p. 443), and asked this Court
independently to review the entire record for arguable issues. Sorrells filed a supplemental opening brief
in which he contends the order imposing a restitution fine of $10,000 was
excessive and was not supported by substantial evidence. We have reviewed the record in the appeal
from imposition of the restitution fine and find no error.
The judgment
and the denial of Sorrells’s post-judgment motion to strike or modify the order
for restitution, fees and fines are affirmed.
KLEIN,
P. J.
We concur:
KITCHING,
J.
ALDRICH,
J.
By order filed January 9, 2013,
Sorrells’s appeal from the denial of a motion to strike or modify
an order imposing restitution, fines and fees is considered concurrently with
the appeal from the judgment.
