Opinion
D049912
4-25-2008
THE PEOPLE, Plaintiff and Respondent, v. GUILLERMO CALVILLO FLORES, Defendant and Appellant.
NOT TO BE PUBLISHED
I.
INTRODUCTION
Appellant Guillermo Flores appeals from a judgment of conviction and sentence. A jury convicted Flores of attempted voluntary manslaughter, making a criminal threat, and assault on a peace officer. On appeal, Flores challenges his convictions on the ground that the trial court should have instructed the jury sua sponte regarding reasonable self-defense because, he contends, there was evidence from which the jury could have inferred that he acted in self-defense. Flores also challenges the trial courts decision to impose the upper term for his conviction for attempted voluntary manslaughter. Flores asserts that the trial court violated his right to a jury trial when the court relied on factors not found by the jury nor admitted by Flores in selecting the upper term.
We conclude that Flores was not entitled to a self-defense instruction because that defense is inconsistent with Floress theory of the case, and because there was no evidence from which one could reasonably have inferred that Flores was justified in committing any of the offenses on the ground that he was acting in self-defense. We also conclude that the trial court did not violate Floress right to a jury trial in selecting an upper term sentence. In selecting the upper term, the trial court relied on at least one aggravating factor that independently satisfies the requirements of the Sixth Amendment.
II.
FACTUAL AND PROCEDURAL BACKGROUND
A. Factual background
1. The prosecutions case
The offenses for which Flores was convicted occurred sometime after 1:00 a.m. on September 5, 2005 in an agricultural area of Imperial County. Maria Perez lived in the main residence at 810 Cocopah Road, Winterhaven, California. Maria Terraza and her son lived in a mobile home located approximately five or six meters from the main residence. Flores lived in a trailer located toward the back of the property, approximately 150 to 200 yards from the main residence. An electricity meter is located next to the main residence, and there is an abandoned room, with electricity, approximately 25 feet from the main residence.
Sometime around 1:00 a.m. on September 5, 2005, the electricity at 810 Cocopah went off. The property was extremely dark. Terraza heard someone banging on the meter box "with a tool." After opening a window, she saw Flores hitting the box. Perez went outside to talk with Flores. Terraza and her son were standing at the meter box when Perez arrived. Flores was upset and uttered "bad words" at Perez. He accused Perez of turning his lights off. Flores said that he would return with "a surprise" for Perez and her boyfriend. Flores then walked toward the back of the property where his trailer was located. Terrazas son called the police.
Deputy Sheriff Adonis Glasper was dispatched to 810 Cocopah Road to investigate the call. Glasper spoke with "four or five individuals" about the incident. They told him that Flores had been stealing electricity. Terrazas son led Glasper to the back of the property where Floress trailer was located. After the two walked for approximately 150 to 200 yards to the back of the property, Terrazas son pointed at two trailers and told Glasper that Flores was "in the trailers in this area." Glasper approached the area and saw and heard a woman yelling. He eventually saw "a female adult and . . . two juveniles." The woman yelled, "You need to hurry up." A male voice "answered back" from another direction.
Glasper moved in closer, toward a pile of wood, and illuminated the area with his flashlight. Glasper saw a man and announced his presence. Glasper described the man as Hispanic, in his forties, about 510" to 511" in height, and weighing approximately 190 to 200 pounds. The man had a thick mustache and was wearing a cowboy hat, boots, and a denim shirt and denim pants. At trial, Glasper identified Flores as the man he saw that night.
Glasper repeatedly asked the man to come closer to him because the man was in an area that was surrounded by debris, which could have posed a hazard to Glasper. The man did not comply with Glaspers request. The man told Glasper that his name was "Albert Paul Flores," and gave a birthdate of August 30, 1951. Glasper called in that name on his radio. A dispatcher later reported to Glasper that the name was associated with a deceased person. The man started to laugh when he heard this information over Glaspers radio.
Glasper then asked the man for identification. The man yelled in the direction of the larger of the two trailers, "Hey, babe, get my ID." Glasper told the man not to go inside the trailer. The man told Glasper he was going to do so anyway and started walking toward the larger trailer. Glasper began to move in a direction so as to cut the man off and prevent him from reaching the trailer. In the process of doing so, Glasper lost sight of the man as they were both approaching a blue vehicle. Glasper then heard the man speaking from somewhere to the left of Glasper, saying, "You move, motherfucker, and youre dead."
At first Glasper was not sure how the man intended to kill him. Glasper then saw that the man was "hunkered down" between debris piled on the blue vehicle, and that the man was holding a double barreled shotgun. Glasper reached for his own gun and told the man to drop his gun. The man said something like, " Im going to kill you or `Youre dead." Glasper drew his gun and ran to his right as the man fired the shotgun once. Glasper returned fire, shooting four or five rounds as he continued running. Glasper fell at the same time the man fired the shotgun again. Glasper heard the shotgun pellets go over his head.
Glasper called for assistance and then immediately ran for cover behind a large white trailer. After a few minutes, Glasper made his way back toward the main residence. He evacuated the residents by driving them in his patrol car to a nearby school. Glasper then returned to 810 Cocopah where he waited for approximately an hour for other officers to arrive.
At approximately 4:30 a.m., Sheriffs deputies Breland and DeLeon arrived at the scene to collect evidence. They found six empty shell casings from a .40-caliber firearm like the firearm Glasper had used. They identified three bullet holes in the blue car and three holes in the smaller of the two trailers.
The deputies did not find any shotgun shells or shotgun pellets. They did, however, notice two "fresh" indentations on the larger trailer, which they believed could have been caused by shotgun pellets hitting the trailer. Deputy Sheriff Manuel Garcia testified that if a shooter did not reload a double barreled shotgun, no casings would be found. Garcia also opined that the absence of gunshot pellets and the location of the indentations on the larger trailer indicated that the shooter could have fired upward, such that most of the pellets would have gone over the top of the trailer. Based on the size of the marks on the trailer, Garcia believed that birdshot had been used. No gun or ammunition was found at the scene or in the trailers.
Several months later, an investigator questioned Flores about the incident. Flores told the investigator that he had been living in Mexico in 2005, and that he had not lived in the small trailer at 810 Cocopah Road since September 2004. Glasper later listened to a recording of the investigators interview with Flores and recognized Floress voice from the incident.
2. The defense case
Flores did not call any witnesses to testify. Defense counsel introduced two audio tapes—a dispatch call between the Imperial County Sheriffs Department and other law enforcement agencies made September 5, 2005, and Sergeant Garcias September 5, 2005 interview of Deputy Glasper. Defense counsel had Flores stand up so the jury could view his appearance.
B. Procedural background
By amended information, Flores was charged with attempted murder (Pen. Code, § 644, subd. (a), § 187, subd. (a) count 1); making a criminal threat (§ 422) (count 2); and assault with a firearm upon a police officer (§ 245, subd. (d)(1)) (count 3). The information also alleged that Flores personally used a firearm (§§ 12022.53, subd. (b), § 12022.5, subd. (a)(1)) and that he personally and intentionally discharged a firearm (§ 12022.53, subd. (c)) in connection with counts 1 and 3, respectively.
All further statutory references are to the Penal Code unless otherwise specified.
A jury found Flores guilty of attempted voluntary manslaughter, a lesser included offense of the offense charged in count 1; making a criminal threat; and assault on a peace officer, a lesser included offense of the offense charged in count 3. With regard to count 1, the jury rejected the allegation of personal use of a firearm made pursuant to section 12022.5, subdivision (a), and made no finding at all on the allegations of personal use of a firearm made pursuant to section 12022.53, subdivision (b), or intentional discharge of a firearm made pursuant to section 12022.53, subdivision (c).
The court instructed the jury as to sections 12022.5, subdivision (a)(1) and 12022.53, subdivisions (b) and (c). However, the signed guilty verdict for the lesser included offense on count 1 included a finding only as to the section 12022.5 enhancement.
On October 11, 2006, the trial court sentenced Flores to the upper term of five years six months on the attempted voluntary manslaughter conviction. The court imposed and stayed sentence pursuant to section 654 on counts 2 and 3.
Flores filed a timely notice of appeal on November 15, 2006.
III.
DISCUSSION
A. The trial court was not required to instruct the jury regarding reasonable self-defense
Flores asserts that the trial court should have instructed the jury sua sponte regarding self-defense because, he contends, the evidence presented at trial "supported the consistent defense theory that deputy Glaspers conduct was excessive and appellant acted in self-defense."
"In the absence of a request for a particular instruction, a trial courts obligation to instruct on a particular defense arises "only if . . . it appears that the defendant is relying on such a defense, or . . . if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case." [Citations.]" (People v. Dominguez (2006) 39 Cal.4th 1141, 1148.) Flores did not request a self-defense instruction, and he did not rely on self-defense as a defense at trial. Rather, at trial, Flores argued that this was a case of mistaken identity, and also challenged whether there was evidence to support a finding that anyone other than Glasper had fired a weapon that evening. We conclude that the defense of self-defense was inconsistent with Floress theory of the case, and further, that there was no evidence to support a self-defense theory.
Floress main defense was that he was nowhere near 810 Cocopah Road at the time the incident occurred, and that Glasper misidentified Flores as the perpetrator. Defense counsel repeatedly attempted to discredit Glaspers identification of Flores as the individual who shot at him on September 5, 2005. Defense counsel argued, "The one thing that is not evident is that Mr. Flores was this so-called attacker. The multiple flaws and inconsistencies and contradictions and assumptions in this case, despite the fact the People so desperately wanted to — I shouldnt say that — that there appears to be evidence that someone wants this very much to be Mr. Flores, there is no hard evidence that it was. [¶] There is no hard evidence here that it was in fact Mr. Flores. There is not."
A self-defense instruction would have been inconsistent with Floress contention that Glasper had mistakenly identified Flores as the offender. (See People v. Eilers (1991) 231 Cal.App.3d 288, 294, fn. 2 [noting that in instances "in which the defendant denies being involved in the incident at all, such as defenses based upon alibis or mistaken identity," the giving of "instructions regarding another defense, such as self-defense, would be inconsistent with, and thus prejudicial to, the defense chosen by the defendant"].)
Flores contends on appeal that he put forth another defense theory as well, i.e., that the evidence did not support Glaspers version of events and there was thus "no credible evidence . . . that appellant was guilty of any crime." Although it appears that Floress main contention was that he had been misidentified, defense counsel did suggest to the jury that Glasper was the only person who shot a gun that morning, implying that even if the jury believed that Flores was present at the scene, there was no evidence that he committed any crimes against Glasper. However, a self-defense instruction would also have been inconsistent with this secondary contention that no crimes were committed that morning.
Even if we were to assume for the sake of argument that a self-defense instruction would have been consistent with Floress theories of the case, the trial court did not have a duty to give a self-defense instruction because there was no evidence to support a claim of self-defense. Flores relies on People v. Elize (1999) 71 Cal.App.4th 605 (Elize) to support his contention that there was evidence sufficient to require a self-defense instruction. Flores claims that Elize "is instructive because it determined that self-defense may be inferred from the circumstances even when the defendant does not testify that he shot in self-defense."
What Elize clarifies, however, is that one can infer self-defense from the circumstances only when there is actual evidence from which one could infer that the defendant acted in self-defense. In Elize, there was such evidence: "In the instant case, a jury could find from the evidence presented that defendant was sought out and attacked by two angry women much larger than he, that he was being beaten with pipes, that this beating accounted for his broken wrist, that one of the women tried to take his handgun, and that he struggled with that woman while the other continued to beat him. A jury could disbelieve defendants testimony that the gun fired accidentally during this struggle. A jury could find that defendant fired the gun intentionally, hoping to end the attack upon him either by hitting one of his assailants or by firing into the air to scare off his attackers." (Elize, supra, 71 Cal.App.4th at pp. 615-616.)
In contrast to the circumstances in Elize, in which the defendant acknowledged that he had fired a gun, Flores never admitted that the conduct underlying the charges occurred. In fact, the "evidence" on which Flores relies in arguing that the trial court should have instructed on self-defense is, fundamentally, a lack of evidence to support Glaspers assertions of what occurred that morning, i.e., a lack of evidence that the conduct underlying the charges ever occurred. Flores points out that (a) the investigators did not find any shotgun pellets; (b) the investigators did not conclusively determine the origin of the two marks on the larger trailer and specifically, whether the marks were made by shotgun pellets; (c) a witness testified to hearing only five shots that morning, whereas a minimum of eight rounds would have had to have been fired if Glaspers version of the events were true; and (d) Glaspers testimony was inconsistent on a number of other points. Flores contends that all of this supports his theory that Glasper was the only shooter that morning.
Even if this is true, and even if the jury believed that Glasper was the only shooter, evidence suggesting that Glasper was the only shooter is insufficient, on its own, to support the additional inference that the conduct Flores was charged with committing was undertaken in self-defense. In fact, such evidence would be inconsistent with this inference. The lack of evidence to support Glaspers story might place in question whether the shooting-related conduct ever occurred at all, but says nothing about possible justification. Flores did not testify, and there were no other witnesses who testified to having seen what occurred. Glaspers testimony was the only evidence available to the jury to support a finding that Flores committed the alleged offenses. If the jury rejected Glaspers testimony and believed that Glasper was the only person who shot a firearm that morning, then there would be no evidentiary basis for a finding that anyone shot at Glasper, much less that they did so in self-defense.
Additionally, even if the jury believed only Glaspers contention that Flores threatened him, and disbelieved the rest of Glaspers story, the state of the evidence would not support an inference that the threat was made in self-defense. The only evidence as to the timing of the relevant events (i.e., when the threat occurred relative to Glasper firing his weapon) was Glaspers testimony. The jury had two options with regard to this evidence: (1) the jury could believe Glaspers version of the sequence of events, which would eliminate the possibility that the threat was made in self-defense since Glasper testified that Flores threatened Glasper before Glasper used his weapon, or (2) the jury could reject Glaspers version of the sequence of events, which would leave the jury with no evidence from which it could determine the sequence of events. With no evidence to suggest anything about the temporal relationship between the threat and Glaspers firing his gun, there would be no evidence to suggest that Flores threatened Glasper in response to Glaspers use of unreasonable force. The jury would thus have had no basis to infer that any threat Flores may have made was made in self-defense.
B. The trial court did not err in imposing the upper term
Flores contends that the trial court committed Blakely error in sentencing him to the upper term for his conviction for assault because the factors on which the court relied to impose the upper term were neither proved to a jury nor admitted by Flores. He further contends that the California Supreme Court incorrectly interprets the scope of the prior conviction exception identified by the United States Supreme Court in Almendarez-Torres v. United States (1998) 523 U.S. 224 (Almendarez-Torres) to include recidivism related factors. We conclude that the trial court did not err in imposing the upper term.
Blakely v. Washington (2004) 542 U.S. 296 (Blakely).
1. Applicable law
In Cunningham v. California (2007) 549 U.S. __, 127 S.Ct. 856, the United States Supreme Court addressed the constitutionality of Californias determinate sentencing law (DSL) as interpreted by the California Supreme Court in People v. Black (2005) 35 Cal.4th 1238 (Black I), certiorari granted, judgment vacated, and cause remanded sub nom. (Black v. California (2007) __ U.S. __,127 S.Ct. 1210.) In Black I, the Supreme Court determined that "the judicial factfinding that occurs when a judge exercises discretion to impose an upper term sentence or consecutive terms under California law does not implicate a defendants Sixth Amendment right to a jury trial." (Black I, supra, 35 Cal.4th at p. 1244.) In Cunningham, the United States Supreme Court rejected the conclusion in Black I, and held that the imposition of an upper term sentence under Californias determinate sentencing law based on neither a prior conviction nor facts found by the jury or admitted by the defendant, violates the Sixth and Fourteenth Amendments of the United States Constitution. (Cunningham, supra, 127 S.Ct. at p. 860.)
The Cunningham court reasoned:
"As this Courts decisions instruct, the Federal Constitutions jury-trial guarantee proscribes a sentencing scheme that allows a judge to impose a sentence above the statutory maximum based on a fact, other than a prior conviction, not found by a jury or admitted by the defendant. Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) [Apprendi]; Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) [Ring]; Blakely [, supra,] 542 U.S. 296; 124 S.Ct. 2531; United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005) [Booker]. `[T]he relevant "statutory maximum, "this Court has clarified, `is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. Blakely, 542 U.S., at 303-304, 124 S.Ct. 2531 (emphasis in original)." (Cunningham, supra, 127 S.Ct. at p. 860.)
The United States Supreme Court reversed the defendants upper term sentence, vacated the Black I decision, and remanded the matter to the California Supreme Court. (Cunningham, supra, 127 S.Ct. at p. 860.) The California Supreme Court reconsidered the matter in light of Cunningham in People v. Black (2007) 41 Cal.4th 799 (Black II). In a related case, People v. Sandoval (2007) 41 Cal.4th 825, the Supreme Court addressed additional issues raised by the Cunningham decision. We conclude that under the holding in Black II, the trial court did not violate Floress jury trial right in sentencing him to the upper term.
After Cunningham, the Legislature amended the DSL to give trial courts full discretion to impose the lower, middle, or upper term sentence, effectively increasing the "statutory maximum" from the middle term to the upper term. (See § 1170, as amended by Stats. 2007, ch. 3, § 2.)
1. Analysis
The trial court relied on five aggravating factors to impose the upper term on count 1, none of which were found true by a jury or admitted by Flores. With regard to its findings on the factors in aggravation, the court stated:
The trial court also indicated that the court was planning to consider the issue whether Floress prior convictions were numerous and/or of increasing seriousness, but it is not clear whether the court ultimately relied on these factors in sentencing. In responding to defense counsels objection to the use of Floress prior convictions pursuant to California Rules of Court, rule 4.421, subdivision (b)(2), the court stated, "In regard to the Defendants objection to the priors, and specifically 4.421(b)(2), I believe that factor may be considered by the Court and weighed appropriately by the Court. Its arguable whether three felony convictions within a 25 year period are numerous or not."
"The crime involved great violence and the threat of great bodily harm based upon the evidence presented at trial. [¶] The victim was particularly vulnerable. [¶] [The] Court further finds that the Defendant has engaged in violent conduct which indicates a serious danger to society. [¶] The Defendant has served a prior prison term. [¶] The Defendant was on probation or parole when the crime was committed. [¶] The Defendants prior performance on probation or parole was unsatisfactory."
The People argue that the trial court did not violate Floress jury trial right because the court relied on at least one permissible factor in imposing the upper term. We agree.
a. A single permissible aggravating circumstance renders the upper term the "statutory maximum"
The California Supreme Court determined in Black II that the existence of "a single aggravating circumstance" that has been established in a manner consistent with the requirements of the Sixth Amendment renders a defendant eligible for the upper term, thus making "it lawful for the trial court to impose an upper term sentence." (Black II, supra, 41 Cal.4th at p. 815.) Because the upper term is the "statutory maximum" where at least one permissible aggravating factor is present, it is of no consequence that the trial court may have relied on additional impermissible aggravating factors in selecting the upper term sentence. According to the Black II court, "as long as a single aggravating circumstance that renders a defendant eligible for the upper term sentence has been established in accordance with the requirements of Apprendi and its progeny, any additional fact finding engaged in by the trial court in selecting the appropriate sentence among the three available options does not violate the defendants right to jury trial." (Black II, supra, 41 Cal.4th at p. 812.)
b. The trial court relied on at least one aggravating circumstance that was established in accordance with the requirements of the Sixth Amendment
Floress right to a jury trial was not violated by the trial courts imposition of the upper term because the trial court relied on at least one, and possibly three, aggravating circumstances that rendered him "eligible for the upper term sentence." (Black II, supra, 41 Cal.4th at pp. 812, 818.) Specifically, in imposing the upper term, the trial court cited the facts that Flores had "served a prior prison term," that he "was on probation or parole when the crime was committed," and that he performed unsatisfactorily on probation or parole. As Black II clarifies, a court may use factors related to a "defendants criminal history," like the factors the court cited here, to impose the upper term, despite the lack of jury findings on those matters.
The Black II court concluded that recidivism-related factors need not be found by a jury nor admitted by the defendant in order to satisfy Apprendi because these factors fall within the scope of the exception identified in Almendarez-Torres, supra, 523 U.S. 224. (Black II, supra, 41 Cal.4th, at pp. 818-820.) Under Almendarez-Torres, a court does not violate a defendants Sixth Amendment jury trial right by imposing a sentence that exceeds the statutory maximum on the basis of a defendants prior conviction. (Blakely, supra, 542 U.S. at p. 301, citing Apprendi, supra, 530, U.S. at p. 490.)
Asserting that the United States Supreme Court "consistently has stated that the right to a jury trial does not apply to the fact of a prior conviction," the Black II court concluded that the Almendarez-Torres exception includes "not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions." (Black II, supra, 41 Cal.4th at p. 819.) The court reasoned:
"The determinations whether a defendant has suffered prior convictions, and whether those convictions are `numerous or of increasing seriousness (Cal. Rules of Court, rule 4.421 (b)(2)), require consideration of only the number, dates, and offenses of the prior convictions alleged. The relative seriousness of these alleged convictions may be determined simply by reference to the range of punishment provided by statute for each offense. This type of determination is `quite different from the resolution of issues submitted to a jury, and is one more typically and appropriately undertaken by a court. [Citation.]" (Black II, supra, 41 Cal.4th at pp. 819-820.)
Here, pursuant to Black II, the trial courts determination that Flores served a prior prison term satisfies the requirements of the Sixth Amendment. In Black II, the Supreme Court cited with approval the holding in People v. Thomas (2001) 91 Cal.App.4th 212, 221, that the Almendarez-Torres recidivism exception encompasses judicial findings that a defendant has served a prior prison term. (Black II, supra, 41 Cal.4th at p. 819.) The trial court also relied on the fact that Flores was on parole or probation when he committed the offense, and the fact that Flores had performed poorly on parole or probation; a defendants status as a parolee and his or her unsatisfactory performance on parole have also been held to be factors falling within the scope of the Almendarez-Torres exception. (See People v. Yim (2007) 152 Cal.App.4th 366, 368, 371 [defendants "status as a parolee and his prior unsatisfactory performance on parole" are factors that "can be determined by reference to `court records pertaining to appellants prior convictions, sentences, and paroles"].) Because the court relied on at least one aggravating circumstance that "independently satisf[ies] Sixth Amendment requirements," Flores was eligible for the upper term. (Black II, supra, 41 Cal.4th at p. 820.) The trial court was thus free to select the upper term without violating Floress right to jury trial.
IV.
DISPOSITION
The judgment of the trial court is affirmed.
WE CONCUR:
McDONALD, Acting P. J.
IRION, J.