P. v. Chernobieff

Filed 10/12/07 P. v. Chernobieff CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Placer)

----

A jury convicted defendant Nicholas Chernobieff of attempted murder of Officer Michael Easter while knowing the officer was in the performance of his duties (Pen. Code, 187, subd. (a), 664, subd (e) -- count one);^[1]assault on Officer Easter ( 245, subd. (c) -- count two), as well as the included offense of assault in violation of section 245, subdivision (a)(1); conspiracy to commit grand theft ( 182, subd. (a)(1), 487 -- count three, possession of a check with intent to defraud ( 475, subd. (b) -- counts four), second degree burglary ( 459 -- count five), possession of methamphetamine for sale (Health & Saf. Code, 11378 -- count six), and transportation of methamphetamine (Health & Saf. Code, 11379, subd. (a)).

The jury found true, as to counts I and II, that defendant inflicted great bodily injury on Officer Easter ( 12022.7, subd. (a)). (RT 1113-1114) The jury also found true that defendant committed the prior offenses while on bail ( 12022.1), that he had served a prior prison term ( 667.5, subd. (b)), and that he had three prior controlled substance convictions (Health & Saf. Code, 11370.2, subd. (c)). Defendant was sentenced to state prison for an indeterminate term of life for the attempted murder and a consecutive determinate term of 12 years 4 months for the remaining offenses and enhancements.

On appeal, defendant contends (1) the trial courts exclusion of his proffered expert testimony and the courts refusal to permit him to cross-examine Detective Goucher on his use of lethal force denied him due process; (2) the court improperly admitted testimony regarding defendants arrest in an pending case in Yolo County; (3) cumulative prejudice amounted to a denial of due process; (4) conviction of both the greater and the lesser included offense in count two requires reversal and dismissal of the lesser included offense; and (5) use of aggravating factors to impose sentence without submission of those factors to a jury requires reversal of his sentence. We find merit only in defendants fourth contention and otherwise affirm the judgment.

FACTS

During the morning of March 11, 2004, Dustin Nunes, a manager at a Target Store in Roseville, observed three persons enter the store -- defendant, a younger female named Ali Beebout, and Shane Patterson, a known receipt shopper.^[2] On closed circuit television, Nunes tracked defendant and Beebout as they toured the store and placed items in a shopping cart. Concerned about detaining defendant because he had a prosthetic hook attached to his left arm, Nunes called the Roseville Police Department and spoke with Detective Scott Goucher. Detective Goucher, accompanied by Detective Michael Easter and Sergeant Michael Sherlock, all dressed in plainclothes, immediately left for Target in an unmarked van.

Seargent Sherlock stayed in the van while Detectives Easter and Goucher went inside and watched defendant and Beebout on the closed-circuit television. Beebout went to the return desk and presented a large red ball, showing the clerk what appeared to be a used receipt. Review of the tapes had shown Beebout had not entered the store with the ball. The detectives also learned that, according to a clerk at the fitting room, Beebout had entered the fitting room wearing a black bra and had left wearing an orange one.

Beebout met with defendant at the front of the store where they had a discussion. The two then exited the store, leaving merchandise in their shopping cart behind. Beebout sat down and began to smoke a cigarette while defendant proceeded to his car.

The plan was for Sherlock to block defendants vehicle when he attempted to back out of his parking space, Goucher would assist Sherlock in detaining defendant, and Easter would detain Beebout. When Sherlock saw defendant get into his car, a Saturn, and start it, he began driving to block defendants car. However, another vehicle pulled out of its parking place, thereby preventing Sherlock from blocking defendant.

Sherlock radioed the other officers to detain defendant when his car got to the front of the store. As defendant stopped briefly in front of Target, Goucher, who was wearing tan pants and a light blue shirt, pulled out his badge which was hanging from a chain under his shirt and lifted his shirt to show his duty gear, which included his holstered gun.

Defendants window was down and Goucher held out his badge and said, police officer. Turn your car off. Defendant revved the engine and Goucher saw him attempting to move the shifting lever. Goucher again identified himself and ordered defendant to turn off his car. The Saturn peeled out as Goucher unsuccessfully tried to grab the drivers door.

Detective Easter, who estimated he was about 50 yards from where Goucher had attempted to detain defendant, heard the squealing of tires and Goucher yell, police, stop the vehicle. Easter quickly moved into the street from the sidewalk, taking out his badge and gun, expecting defendant to see him and stop. Easter continued to move to his left to get out of the way, but defendant swerved toward him and struck him, causing him to flip over the car and land on the pavement. Defendant did not stop, but continued onto a street and drove off.

Goucher observed the Saturn swerve and hit Easter. Goucher fired six shots at the Saturn as it drove off at a high rate of speed.

Sergeant Sherlock, who was driving behind defendant, described the Saturns trajectory toward Detective Easter as more of a drift than a swerve.

Richard Withrow, a Target employee, was about five feet from Detective Goucher when he heard Goucher tell defendant to turn off his engine and get out of the car. Withrow saw Gouchers badge around his neck and knew Goucher was a police officer. Withrow observed the Saturn accelerate away from Goucher, swerve and strike Detective Easter. However, Withrow thought the Saturn swerved to avoid an SUV which was turning into the lot.

Store surveillance cameras captured the Saturns acceleration away from Goucher and its striking Detective Easter.

Easter was transported to a hospital for injuries to his arms, legs and ankle. Although released that same day, he was off duty for a week and one-half, was on modified duty for another eight weeks, and suffered torn cartilage in his knee which had to be surgically removed.

The Saturn was found about an hour later, abandoned in a driveway. Handcuffs belonging to Easter were wrapped around the cars antenna. A search of the Saturns trunk disclosed baggies containing methamphetamine as well as paraphernalia indicating drug trafficking.

Sergeant Michael Allison, an expert in accident reconstruction, determined from the surveillance video and his test driving the Saturn at Target, that defendant was traveling about 29 miles per hour when he struck Easter, who was 81 feet from where Goucher had attempted to detain defendant. Allison opined that if the striking of Easter had been an accident there would have been skid marks following the impact, but there were none. Allison concluded that because of the camera angles and the poor quality of the video any swerving of the Saturn could not be accurately determined. Allison calculated that there was 15 feet between the SUV and Detective Easter when defendant struck Easter, thus giving defendant adequate room to pass without hitting Easter.

Detective Gary Hallenbeck, who was with the Yolo County Sheriffs Department, testified that on February 26, 2003, he and several other officers served a search warrant for defendants residence. Hallenbeck, dressed as a telephone repairman, spoke with defendant at the front door and attempted to lure him outside. When the ruse failed, Hallenbeck signaled for other officers, who were in uniform and hiding in a van, to approach the house. Defendant saw the officers and unsuccessfully tried to slam the door. A struggle ensued until defendant was handcuffed.

A search of the residence disclosed about 16 grams of methamphetamine in several bags; about 76 grams of marijuana; a digital sale, a cutting agent, and a loaded .380 semiautomatic handgun.

It was stipulated that on March 11, 2004, defendant had

charges pending in Yolo County for possession of both methamphetamine and marijuana for sale and for maintaining a place for the use or sale of controlled substances and that he had been released on his own recognizance in that case on September 19, 2003.

Defendant called eight witnesses who were in the area when Detective Goucher attempted to detain defendant. None of these witnesses heard Goucher yell police officer.

Gregg Stutchman, an expert in forensic photography, determined from the Target store videos that the Saturn turned just slightly away from the SUV prior to striking Detective Easter. Scott MacDonald, an automobile accident investigation expert, concluded from his measurements, which he claimed were accurate within a range of two feet, that Detective Easter had moved into a position which made his collision with the Saturn unavoidable.

DISCUSSION

I

Defendant contends the trial court prejudicially erred when it granted the Peoples pretrial motion to exclude him from admitting Expert testimony that the officers should not have attempted to detain the defendant or should have employed different procedures to detain the defendant[;] from cross-examin[ing] [Detective] Goucher regarding his decision to employ lethal force to attempt to halt the flight of the defendant from the scene of the attempted murder[;] and from admitting testimony regarding traffic studies reflecting the mortality rate of auto vs. pedestrian collisions. We conclude the court did not err.

A

During argument on the Peoples motion, defendants counsel informed the court that the heart of [his] defense[] was the failure of Officers Goucher, Easter and Sherlock to follow proper law enforcement procedures in attempting to detain defendant. This failure, according to counsel, caused defendant to fear for his life and flee, and in doing so he fled and unintentionally struck Detective Easter.

In support of his defense, counsel had an expert witness, Fred Saunders, a law enforcement procedure expert for approximately 15 years, who would testify regarding the officers violation of a number of policies of the Roseville Police Department regarding the use of force. Specifically, Saunders would testify the officers failed to explore other means of detaining someone before using force, the officers failed to follow a chain of command, the officers did not communicate effectively, and they did not follow reasonable means of detaining defendant.

The prosecutor objected that Saunderss proffered testimony was irrelevant. After sleeping on the question overnight, the court sustained the lack of relevancy objection.

Defendant claims the court erred in finding the proffered testimony irrelevant since expert testimony was necessary to show circumstances that would not give rise to criminal intent, and [was] necessary to demonstrate that [his] behavior was reasonable because the officers conduct was unreasonable. Like the trial court, we too fail to see the relevancy of Saunderss proffered testimony.

No evidence is admissible except relevant evidence. (Evid. Code, 350.) Relevant evidence means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. (Evid. Code, 210.)

Here, at issue was (1) whether the conduct of the officers reasonably caused defendant to believe he was confronted by persons other than police officers and in fleeing for his safety whether he unintentionally hit Easter, or (2) whether he fled because he knew that police officers were trying to take him into custody and when confronted by Easter, he struck Easter with the intent to kill him.^[3]

Whether the officers acted in accordance with the policy of the Roseville Police Department in attempting to detain defendant or whether the officers could have used different and less dangerous means to detain him has no bearing in resolving the above issues. Resolution of these questions could only be resolved by the jury based upon the actual conduct of the officers and the reasonableness of defendants response, and not to what might have happened had the officers employed a different method. Consequently, the court properly determined that Saunderss proffered testimony was irrelevant.

Defendant also argues that because the officers knew that defendant was involved in drug trafficking, they should have known that he would be more likely to think that a non-uniformed officer with a gun who was trying to stop him was someone pulling a drug rip-off, hence the officers should have taken greater precautions in approaching him. This is no more than a variation of defendants previous argument, namely, that the officers should have used other means to detain him. For the same reasons stated above, namely, the jurys proper concern was with what the officers actually did, not what they might have done. Consequently, the argument lacks merit.

B

Defendant contends the court erred when it refused to permit him to cross-examine Detective Goucher regarding his use of lethal force. According to defendant, such cross-examination would have been expected to lead naturally and probably to consideration of the departments lethal force policy and to the officers prior knowledge of [defendants] drug trafficking history. This would have been another way of bringing to the jurys attention -- or at least raise an issue -- the information an expert might relate concerning reasonable and expected reactions by a drug trafficker to an armed and hostile approach by not-uniformed persons.

Again, the officers knowledge of defendant being a drug trafficker was irrelevant to either the reasonableness of defendants response to the officers conduct or to defendants state of mind (intent) when he struck Detective Easter. Consequently, the court did not err in refusing to permit defendant to elicit such material by cross-examination.

C

Defendant contends the trial court erred when it ruled irrelevant his proffered expert testimony regarding traffic studies which disclosed that collisions between vehicles traveling at 28 to 30 miles per hour, the range of speed at which defendant struck Easter, and pedestrians were unlikely to result in death. The court found the proffered evidence irrelevant and granted the Peoples request to exclude it. The People urge that the issue is forfeited because defense counsel stipulated to the court granting the request. The People misread the record, and defendants contention lacks merit.

Citing to pages 235 and 236 of the reporters transcript of the hearing on the exclusion motion, the People claim the court granted the request [to exclude the evidence], after counsel stipulated to its grant. What the record shows is that the prosecutor agreed with the trial courts assessment that the studies were irrelevant and that defendants counsel submitted the matter. Consequently, we review the issue.

There was no proffer of evidence that defendant was aware of the statistical fact suggested by the studies, which might have made the evidence marginally relevant. Most importantly, however, is that even if there was not a high probability of death from such collisions, such lessened probability of death would have no bearing on whether defendant was trying to kill the detective when he ran into him. Hence, the sustaining of the objection was proper.

II

Defendant contends the trial court erred when, over his objections under Evidence Code section 1101, it admitted Officer Hallenbecks testimony regarding the details of defendants arrest in his pending Yolo County case. We disagree.

Detective Hallenbeck testified that in February 2003, he and other officers went to defendants residence to execute a search warrant; that defendant tried to close the door when he realized the officers were there to search his home; and that defendant struggled with the officers before he was subdued. A search of the residence disclosed a pouch inside of which was a large bag containing 12.5 grams of methamphetamine, four small bags containing methamphetamine, 76.1 grams of marijuana, a digital scale, and a .380 semiautomatic handgun. A cutting agent for the methamphetamine was found in a hallway closet. In a bedroom was a plate with methamphetamine on it and a razor blade. Hallenbeck opined that the methamphetamine was possessed for purpose of sale.

In the instant case, a search of the Saturns trunk revealed baby bottle liners and plastic baggies consistent with methamphetamine packaging. Inside a locked metal box, which was unlocked with a key on defendants key ring, were four baggies containing methamphetamine, a digital scale, straws, razor blades, and a pager.

Defendant argues that Hallenbecks detailed recitation of the Yolo County arrest, [his] resistance, and the presence of a loaded handgun were not relevant to prove appellant had a motive or intent to kill Easter or to sell drugs. In these circumstances, we review the trial courts ruling under the abuse of discretion standard. (People v. Catlin (2001) 26 Cal.4th 81, 120.)

Evidence Code section 1101 prohibits the admission of other crimes evidence to show a defendants bad character or propensity to commit bad acts except when relevant to prove other facts like motive or intent. (Evid. Code, 1101, subds. (a) & (b).) With regard to intent, The least degree of similarity (between the uncharged act and the charged offense) is required in order to prove intent. [Citation.] [T]he recurrence of a similar result . . . tends (increasingly with each instance) to negative accident or inadvertence or self-defense or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i.e., criminal intent accompanying such an act . . . . [Citation.] In order to be admissible to prove intent, the uncharged misconduct must be sufficiently similar to support the inference that the defendant probably harbor[ed] the same intent in each instance. (People v. Ewoldt (1994) 7 Cal.4th 380, 402.)

Intent

Here, the similarities for the uncharged and charged offenses were defendants possession of several baggies containing methamphetamine, additional packaging material for methamphetamine, razor blades, and scales which could be used for weighing the methamphetamine. These similarities are sufficient to show that if defendant harbored an intent to sell in the Yolo County case, he likely harbored the same intent in the present case. Consequently, the court did not abuse its discretion in admitting the uncharged evidence on defendants present intent in possessing methamphetamine.

As to the admission of the evidence of the firearm, in order for the Yolo County offense to be admissible in the present case, the People had to prove defendant possessed the methamphetamine in the Yolo County case with intent to sell it. The presence of the gun was one of the factors relied on in Hallenbecks opinion that defendants possession was for the purpose of sale. Thus, it was admissible for that purpose.

Motive

Defendants pending drug charges in Yolo County and his struggle with the officers regarding his arrest for those charges, was admitted on the issue of motive.

Evidence that a defendant committed crimes other than those for which he is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as motive . . . . [] . . . [] As long as there is a direct relationship between the prior offense and an element of the charged offense, introduction of that evidence is proper. (People v. Daniels (1991) 52 Cal.3d 815, 856-857.)

In ruling that the challenged evidence was admissible to show defendants motive in fleeing, the court observed there were two theories: One, that defendant was trying to avoid a carjacking, and his striking of Detective Easter was the result of his fleeing or was an accident. The second theory was that defendant was trying to evade arrest and was willing to utilize deadly force in order to accomplish that end.

Evidence of the pending Yolo County charges tended to show that defendant had reason to avoid being arrested in the present case, namely, because in addition to the new charges defendant would incur he would also have his bail revoked on the Yolo County charges. That defendant struggled with the officers at his residence tended to show that he was willing to engage in physical violence in order to avoid being taken into custody. Since the evidence was material on the issue of defendants motive in fleeing and in striking Easter, there was no abuse of discretion in admitting it.^[4]

III

Defendant contends that his convictions of both violation of section 245, subdivision (c) and its lesser included offense of violation of section 245, subdivision (a)(1) requires reversal and dismissal of the conviction of the lesser included offense.^[5] The People urge that reversal is not necessary because both the record of sentencing and abstract of judgment correctly show [defendants] conviction for assault upon a peace officer ( 245, subd. (c)) and not the lesser included offense ( 245, subd. (a)(1))[.]

It is settled, Where defendant is convicted of a greater and an included offense, reversal of the conviction for the included offense is required. (People v. Pearson (1986) 42 Cal.3d 351, 355 [].) (People v. Contreras (1997) 55 Cal.App.4th 760, 765.) Therefore, we shall reverse and dismiss the included offense.

IV

For defendants conviction of transportation of methamphetamine the court imposed the upper term of four years based upon its findings that the offense involved great violence, he used a weapon in its commission, he engaged in violent conduct which indicates a serious danger to society, his prior convictions are numerous and of increasing seriousness, and he had served a prior prison term. In mitigation, the court found defendant suffered post traumatic stress syndrome and that his prior performance on probation had been satisfactory.

Defendant contends that the courts use of three of the aggravating factors -- (1) use of a weapon, (2) engaging in violent conduct indicating a serious danger to society, and (3) having numerous prior convictions of increasing seriousness -- violated the principles set forth by the United States Supreme Court in Apprendi/Blakely/Cunningham.^[6] And as to the other two factors -- (4) great violence, great bodily injury, threat of great bodily harm, and (5) service of a prior prison term -- were unavailable as aggravating factors because they were the bases for enhancements imposed by the court of infliction of great bodily injury (three years) and service of a prior prison term (one year). These errors, defendant concludes, require us to strike the upper term of four years and impose the middle term of three years.

The People argue that defendants failure to object on to the courts use of the first three aggravating factors on Apprendi/Blakely grounds and his failure to object to the latter two such factors forfeits the issue for appeal. In any event, the People continue, any error was harmless because there was a prior conviction available for use, and one aggravating factor is sufficient to support the upper term sentence.

For the purpose of this appeal only, we will assume that defendants failure to object did not forfeit any Blakely error, but find that on the entire record the error was harmless.

In Apprendi, the high court held that any fact, other than the fact of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum must be tried to a jury and proved beyond a reasonable doubt. (Apprendi, supra, 530 U.S. at p. 390 [147 L.Ed.2d at p. 455].)

For Apprendi purposes, the statutory maximum is the maximum sentence that a court could impose based solely on facts reflected by a jurys verdict or admitted by the defendant. Thus, when a sentencing courts authority to impose an enhanced sentence depends upon additional factfindings, there is a right to a jury trial and proof beyond a reasonable doubt on such facts. (Blakely, supra, 542 U.S. at pp. 303-305 [159 L.Ed.2d 413-414].)^[7]

In Washington v. Recuenco (2006) 548 U.S. ___ [165 L.Ed.2d 466], the court held that Blakely error is subject to harmless error analysis as set forth in Chapman v. California (1967) 386 U.S. 18 at pp. 23-24 [17 L.Ed.2d 705 at pp. 710-711], i.e., whether the appellate court is convinced beyond a reasonable doubt that in the absence of the error a different result would have obtained.

As to defendants use of a weapon and his engaging in violent conduct showing he was a danger to society, the jury did decide facts legally essential to these findings. Namely, that in attempting to evade capture defendant used his automobile as an instrument in his attempt to intentionally kill Officer Easter, thereby admitting of no other conclusion than he used the automobile as a weapon and engaged in violent conduct showing a danger to society. Hence, these aggravating factors were appropriate for consideration by the court.

We assume for purposes of appeal that the trial court erred in considering the factors of great bodily harm, service of a prior prison term, and that his prior convictions were numerous and of increasing seriousness.^[8] This leaves as aggravating factors defendants use of a weapon, his violent conduct showing a danger to society, and three prior convictions -- two of the three found by the court to be true (1990, 1992, 1997)^[9]plus at least one conviction having occurred in Texas.

Against these five aggravating factors, the court found two in mitigation -- prior performance on probation was satisfactory and defendant suffered from post traumatic syndrome. However, as to the latter finding the court concluded it [didnt] play[] a significant factor. Given the seriousness of the aggravating factors compared to the mitigating factors, we conclude beyond a reasonable doubt that had the court would have arrived at the same sentence. Consequently, the error was harmless.

DISPOSITION

Defendants conviction for violation of Penal Code section 245, subdivision (a)(1) is reversed and dismissed. The superior court is directed to amend the abstract of judgment and forward a corrected copy thereof to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.

MORRISON , J.

We concur:

NICHOLSON , Acting P.J.

ROBIE , J.

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^[1] Hereafter references to undesignated sections are to the Penal Code.

^[2] A receipt shopper finds receipts and then obtains items for these receipts inside the store and attempts to return them for a cash refund.

^[3] The jury was instructed on self-defense against assault (CALJIC No. 5.30); assailed persons right not to retreat (CALJIC No. 5.50); when actual danger not necessary to justify self-defense (CALJIC No. 5.51); right of self-defense continues until danger appears to cease (CALJIC No. 5.52); defense of necessity (CALJIC No. 4.43); and negation of crime due to commission of act by misfortune or accident (CALJIC No. 4.45).

^[4] Our conclusions that the trial court did not err at all as contended by defendant in sections I and II, renders it unnecessary to address his claim of cumulative error.

^[5] Section 245, subdivision (a)(1) provides: Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison for two, three, or four years, or in a county jail for not exceeding one year, or by a fine not exceeding ten thousand dollars ($10,000), or by both the fine and imprisonment.

Section 245, subdivision (c) provides: Any person who commits an assault with a deadly weapon or instrument, other than a firearm, or by any means likely to produce great bodily injury upon the person of a peace officer or firefighter, and who knows or reasonably should know that the victim is a peace officer or firefighter engaged in the performance of his or her duties, when the peace officer or firefighter is engaged in the performance of his or her duties, shall be punished by imprisonment in the state prison for three, four, or five years.

One cannot violate section 245, subdivision (c) without violation of subdivision (a)(1) of the same section.

^[6]Cunningham v. California (2007) 549 U.S.___ [166 L.Ed.2d 856]; Blakely v. Washington (2004) 542 U.S. 296 [159 L.Ed.2d 403];Apprendi v. New Jersey(2000) 530 U.S. 466 [147 L.Ed.2d 435].

^[7]Cunningham held that Apprendi/Blakely principles applied to Californias upper term sentencing scheme, thereby overruling People v. Black (2005) 35 Cal.4th 1238, to the extent that Black held to the contrary.

^[8] Although the jury found great bodily harm and service of a prior prison term, it was an improper dual use of these factors to use them for aggravation and for enhancement. Nevertheless, defendants failure to object to such dual use generally forfeits that issue for appeal (People v. Scott (1994) 9 Cal.4th 331, 354); however, to forestall a habeas corpus petition based upon counsels failure to object to such dual use we consider their use as improper in resolving this appeal.

^[9]The court stayed the sentences on two of the three Health and Safety code section 1370.2 enhancements.