Opinion
F076840
05-07-2020
THE PEOPLE, Plaintiff and Respondent, v. CARLOS GABARRETE, Defendant and Appellant.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CMS0791)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge. Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Peter H. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
In 2015, appellant Carlos Gabarrete was serving a sentence in prison when he headbutted a correctional officer. A jury convicted him of battery by a state prisoner on a nonprisoner (Pen. Code, § 4501.5; count 1). He received an upper term sentence of four years, which was doubled because of prior serious or violent felonies. This sentence was imposed consecutively to appellant's existing prison term.
All future statutory references are to the Penal Code unless otherwise noted.
In 1999, appellant was convicted of four felonies, including sodomy with force involving a person under the age of 14 years (§ 286, subd. (c)). In January 2000, appellant received a life sentence of 15 years, along with a consecutive determinate term of eight years, for these prior convictions. Appellant's appeal does not challenge these prior convictions or that prior sentence.
Appellant contends insufficient evidence supports this conviction. He also raises claims of instructional error, prosecutorial misconduct, and abuse of sentencing discretion. We affirm.
BACKGROUND
We summarize the material trial evidence. We provide additional facts later in this opinion when relevant to specific issues raised on appeal.
I. The Prosecution's Case.
On October 29, 2015, appellant was an inmate at Corcoran State Prison. That day, two correctional officers, Eric Gonzales and Richard Garcia, were assigned to transfer appellant to a different institution. The officers contacted appellant inside a holding cell located inside the prison. The officers identified appellant from his picture identification and his California Department of Corrections (CDC) number.
When the officers contacted appellant, he did not have any restraints on him. Per prison policy, the officers conducted an unclothed body search of appellant. The body search occurred without incident and it lasted only one or two minutes. After the body search, Gonzales restrained appellant with handcuffs. Appellant was taken out of the holding cell and Gonzales placed additional restraints on appellant. A "Martin" chain was wrapped around appellant's waist. This chain was laced into a "high risk escape" (also known as an "HRE") box. The HRE box was secured around appellant's handcuffs. The Martin chain was padlocked through the HRE box. These restraints limited the movement of appellant's hands.
Both officers testified nothing unusual occurred while Gonzales initially placed these various restraints on appellant. However, after placing the handcuffs, HRE box and Martin chain on appellant, Gonzales noticed the Martin chain was not fully secured. Gonzales unlocked the padlock. During this process, appellant headbutted Gonzales. The blow struck Gonzales on his right temple. The officers pushed appellant down onto the ground. Appellant was secured without further incident.
At trial, both officers believed the headbutt had been intentional. Gonzales testified the headbutt caused him pain and swelling. He sought medical attention. The pain lasted "for approximately one to two days after the incident." He suffered a headache over that period of time. One of Gonzales's fingers was also injured during this incident. When he was headbutted, Gonzales had grabbed the Martin chain firmly and pulled it. The chain apparently rubbed against Gonzales's middle finger on his left hand, injuring the tendon. Gonzales told the jury he still had limited movement in that finger at the time of trial, and his finger was still sore.
II. The Defense Evidence.
Appellant did not testify in his own defense. He called three other correctional officers to the witness stand. Although these officers had been on duty in the general vicinity of this incident, they neither observed it nor heard anything.
According to one officer, appellant had previously been assigned a wheelchair while he was in prison. The officer testified appellant did not use the wheelchair full time.
It is not clear why appellant was previously assigned a wheelchair while incarcerated.
DISCUSSION
I. Sufficient Evidence Supports Appellant's Conviction.
Appellant raises multiple challenges to the sufficiency of the evidence supporting his conviction for battery upon a nonprisoner (§ 4501.5). First, he contends the alleged headbutting was physically impossible. Second, he asserts his criminal intent was improperly based on supposition. Finally, he argues the prosecution failed to establish he had been lawfully confined in a state prison.
A. Background.
To better understand some of appellant's arguments, we provide additional evidence regarding the battery of Gonzales.
1. Some testimony was in conflict regarding when leg restraints were placed on appellant.
Some of the testimony was in conflict regarding when leg restraints were placed on appellant. According to Garcia, leg restraints were placed on appellant after the headbutting and after appellant was pushed down onto the ground. In contrast, during his direct examination, Gonzales suggested leg restraints (in addition to the handcuffs, Martin chain and HRE box) had been placed on appellant before appellant had headbutted him. During cross-examination, Gonzales again testified appellant had leg restraints placed on him before the headbutt occurred. However, later in his cross-examination, Gonzales denied appellant had leg restraints on him when the headbutting occurred. Instead, Gonzales stated leg restraints were applied on appellant after the headbutting and after appellant was pushed down onto the ground.
2. Both Gonzales and Garcia believed the headbutt was intentional.
During his cross-examination, Gonzales testified Garcia was maintaining control of appellant's "left arm area" while he (Gonzales) was moving around applying the restraints. Gonzales denied this incident occurred while he (Gonzales) was rising up after adjusting appellant's restraints. Defense counsel asked Gonzales why he believed appellant's contact had been willful, harmful and offensive. Gonzales answered, "Well, he struck me in my temple. That's pretty willful and hurtful." Defense counsel asked if it was possible the contact had been an accident. Gonzales rejected that possibility. According to Gonzales, appellant "lunged toward me." Defense counsel asked how appellant had been able to lunge at Gonzales if the officers had maintained control of him. Gonzales answered, "Well, maintaining control and restraining [a person] is two different things. You could—you could have control of [a person], but they can still be able to do something to you." Gonzales testified he knew of no reason why appellant would want to strike him, but Gonzales believed appellant's act had been willful and deliberate.
During cross-examination, Gonzales confirmed he and Garcia were both larger than appellant. On redirect examination, Gonzales explained he was "much taller" than appellant. According to Gonzales, appellant "had to lunge and jump toward me."
During Garcia's cross-examination, he testified that, when Gonzales was going to secure the lock, appellant "lunged and headbutted [Gonzales]." Garcia said appellant did not "casually fall. I mean, he went deliberately right to the right and forward, swinging his head toward [Gonzales]." Garcia agreed he had been "securely holding" appellant when the headbutt happened. Garcia denied appellant could have lost his footing and fell. Garcia agreed appellant had struck Gonzales without any provocation.
B. Standard of review.
When considering a challenge to the sufficiency of the evidence to support a conviction, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which a reasonable finder of fact could make the necessary finding beyond a reasonable doubt. The evidence must be reasonable, credible and of solid value. We presume every inference in support of the judgment the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence could be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
C. Analysis.
Appellant raises three assertions. First, he contends his battery was physically impossible. Second, he argues his criminal intent was not established. Finally, he asserts the prosecution failed to establish he was confined in prison when this crime occurred. The record does not support appellant's arguments.
1. Appellant's battery was not physically impossible.
Appellant contends it is inherently improbable he intentionally headbutted Gonzales. He notes he is smaller than both Gonzales and Garcia. He asserts it was physically impossible he could have pushed his body forward and jumped up to strike Gonzales's head while he was being controlled by both Garcia and the physical restraints. We disagree.
The direct testimony of a single witness is sufficient to establish any fact unless that testimony is physically impossible or its falsity is apparent without resorting to inferences or deductions. (People v. Cudjo (1993) 6 Cal.4th 585, 608; see also Evid. Code, § 411.) A judgment should not be reversed because of evidentiary conflicts or even testimony that is subject to justifiable suspicion. (People v. Beck and Cruz (2019) 8 Cal.5th 548, 627.) On the other hand, if inherently improbable evidence supports a conviction, the judgment must be reversed. (Ibid.) Even though the trier of fact is the sole arbiter of witness credibility, an appellate court must ensure the evidence is reasonable, credible, and of solid value. (People v. Hovarter (2008) 44 Cal.4th 983, 996.)
We disagree it is inherently improbable or physically impossible appellant could have headbutted Gonzales. Although appellant was restrained, nothing establishes or even reasonably suggests he was physically unable to lung upwards and strike Gonzales with his head. As Gonzales explained, even though the officers were controlling appellant, he could still "do something to you."
Appellant raises the possibility he was wearing leg restraints when this battery occurred. He contends the leg restraints (along with the Martin chain and HRE box) would have prevented him from jumping. He also claims he used a wheelchair "on a regular basis" while in prison. The record does not support these assertions.
As an initial matter, appellant does not provide a citation to support his declaration he used a wheelchair on a regular basis. To the contrary, the officer who testified for the defense stated appellant did not use a wheelchair full time. In any event, no evidence demonstrated or even reasonably suggested appellant was using a wheelchair when this battery occurred. Instead, both Gonzales and Garcia made it clear appellant was ambulatory on the day in question. Both officers agreed appellant "lunged" when he struck Gonzales. Gonzales also stated appellant had jumped at him.
We likewise reject appellant's suggestion he was wearing leg restraints when this battery occurred. Although Gonzales initially provided conflicting testimony in this regard, both Gonzales and Garcia testified leg restraints were placed on appellant after this headbutt occurred. In any event, the evidence overwhelmingly established appellant was physically able to headbutt Gonzales.
Finally, appellant quotes from Knox v. McGinnis (7th Cir. 1993) 998 F.2d 1405 (Knox), which involved a prisoner who had been restrained with a chain and box similar to the restraints used in this matter. In Knox, the prisoner challenged the use of these restraints as cruel and unusual punishment under the Eighth Amendment of the United States Constitution. (Knox, supra, at pp. 1406-1407.) Appellant cites certain language from Knox, which tends to show how restrictive such restraints can be when applied to a prisoner. Based on the restrictiveness of these restraints, appellant believes it was physically impossible he could have "lunged and jumped" to commit this crime.
Knox does not assist appellant. Although different inferences may be drawn from the trial evidence, it was the jury's role to judge witness credibility and to determine the facts. (See People v. Hovarter, supra, 44 Cal.4th at p. 996; People v. Cudjo, supra, 6 Cal.4th at p. 609.) Stemming from the verdict, it is apparent the jury determined appellant was physically able to commit this battery. The record amply supports the verdict. At trial, Gonzales and Garcia clarified how, despite the restraints, appellant was physically able to headbutt the taller Gonzales.
Based on this record, it is clear appellant's headbutt was not physically impossible, and its falsity is not apparent without resorting to inferences or deductions. (See People v. Cudjo, supra, 6 Cal.4th at p. 608.) As such, we will not set aside the jury's verdict based on this disputed fact. (See People v. Beck and Cruz, supra, 8 Cal.5th at p. 627.) Thus, we reject appellant's arguments regarding the alleged impossibility of his criminal act.
2. Sufficient evidence established appellant's criminal intent.
Appellant argues his criminal intent was not established. He contends it is feasible the contact occurred as an accident after Gonzales bent down and then started to rise again. He asserts Gonzales incorrectly concluded the collision was intentional. According to appellant, Gonzales's conclusion was mere supposition and based on his own unsupported opinion. We reject these arguments because the record amply demonstrates criminal intent.
Appellant was convicted of violating section 4501.5. This statute reads: "Every person confined in a state prison of this state who commits a battery upon the person of any individual who is not himself a person confined therein shall be guilty of a felony and shall be imprisoned in the state prison for two, three, or four years, to be served consecutively." (§ 4501.5.) Battery is a general intent crime. (People v. Lara (1996) 44 Cal.App.4th 102, 107.)
Here, both Gonzales and Garcia testified nothing unusual occurred while Gonzales initially placed these various restraints on appellant. However, while Gonzales was adjusting the Martin chain, appellant headbutted Gonzales. Both officers testified appellant struck Gonzales on his right temple. Both officers believed the headbutt had been intentional.
Garcia testified that, when Gonzales was going to secure the lock, appellant "lunged and headbutted him." Garcia said appellant did not "casually fall. I mean, he went deliberately right to the right and forward, swinging his head toward [Gonzales]." Garcia agreed he had been "securely holding" appellant when the headbutt happened. Garcia denied appellant could have lost his footing and fell.
Based on this record, we reject appellant's assertion his criminal intent was based on supposition. To the contrary, Garcia's testimony established appellant purposefully lunged at Gonzales. Garcia made it clear appellant did not fall and this was not an accident. Based on these circumstances, the jury had ample evidence to determine appellant's criminal intent. (See § 29.2, subd. (a) [intent may be established by the circumstances].) Garcia's testimony alone was sufficient to establish this fact. (See Evid. Code, § 411 [the direct evidence of a single witness is sufficient for proof of any fact].) Thus, appellant's argument is without merit regarding the alleged insufficiency of evidence establishing his criminal intent.
3. Sufficient evidence established appellant was lawfully confined.
In his final claim, appellant argues the prosecution failed to establish he had been lawfully confined in a state prison. His argument is based on section 4504, which appears in the same chapter as section 4501.5 (battery by a prisoner on a nonprisoner). Section 4504 states a person is deemed confined in a state prison if, in part, the person is confined "by order made pursuant to law." (§ 4504, subd. (a).)
Appellant acknowledges he was inside a prison when this incident occurred. However, he contends no evidence was introduced from which the jury could determine he was in prison "based on an order made pursuant to law committing him to the Department of Corrections." He asserts his conviction must be reversed. We disagree.
With CALCRIM No. 224, the jurors were informed they could rely on circumstantial evidence to conclude a fact had been established, but they must be convinced the prosecution had proven each fact essential to that conclusion beyond a reasonable doubt. The jury was told if two or more reasonable conclusions could be drawn from the circumstantial evidence, it must accept the one that points to appellant's innocence. However, when considering circumstantial evidence, the jury had to accept only reasonable conclusions and reject any that were unreasonable.
With CALCRIM No. 2723, the jury was instructed appellant was guilty of battery by a prisoner on a nonprisoner (§ 4501.5) if he (1) willfully touched Gonzales in a harmful or offensive manner; (2) when he acted, appellant was serving a sentence in a California state prison; and (3) Gonzales was not serving a sentence in state prison. The jury was told a person is serving a sentence in state prison if he or she was "committed to the Department of Corrections and Rehabilitation by an order made according to the law."
Stemming from its verdict, it is apparent the jury determined the prosecution had established the elements of section 4501.5 beyond a reasonable doubt. Consequently, the jury necessarily concluded appellant had been confined in a state prison when he committed this battery. Despite the prosecution not introducing an order of commitment, it is abundantly apparent the jury determined appellant had been committed to prison by an order. (§ 4504, subd. (a).) Such an inference was reasonable under the circumstances.
"An inference is a deduction of fact that may logically and reasonably be drawn from another fact or group of facts found or otherwise established in the action." (Evid. Code, § 600, subd. (b).) When a jury relies on an inference, that inference must be reasonable. An inference is not reasonable if it is based on speculation, imagination, surmise, conjecture, guesswork or supposition. (People v. Davis (2013) 57 Cal.4th 353, 360.)
It is undisputed appellant was an inmate at Corcoran State Prison when this crime occurred. Gonzales and Garcia were assigned to transfer appellant to a different institution that day. The officers contacted appellant inside a holding cell located inside the prison. Based on appellant's picture identification and his CDC number, the officers identified appellant as the inmate who was to be transferred.
During closing argument, the defense never asserted appellant was not lawfully confined in a state prison. Instead, the defense argued a willful touching did not occur. Stemming from the trial evidence, a reasonable jury could conclude appellant was committed to prison by a lawful order. Such a conclusion is a deduction of fact logically and reasonably drawn from other facts established in this trial. (See Evid. Code, § 600, subd. (b).) This inference was not based on speculation. (See People v. Davis, supra, 57 Cal.4th at p. 360.)
Based on this record, the prosecution introduced sufficient evidence from which a reasonable jury could determine appellant violated section 4501.5 beyond a reasonable doubt. The evidence against appellant was reasonable, credible and of solid value. Thus, substantial evidence supports appellant's conviction. (See People v. D'Arcy, supra, 48 Cal.4th at p. 293.) Accordingly, appellant's various arguments regarding the insufficiency of the evidence are without merit, and these claims fail.
II. The Trial Court Did Not Have A Sua Sponte Duty To Instruct Regarding The Defense Of Accident And Appellant Does Not Establish Ineffective Assistance Of Counsel In Failure To Request Such An Instruction.
The trial court did not provide the jury with an accident instruction. Appellant contends the trial court had a sua sponte duty to do so. In the alternative, appellant asserts his trial counsel provided ineffective assistance in failing to request an accident instruction. We reject these claims.
A. The trial court did not have a sua sponte duty to provide an accident instruction.
By statute, a mere accident does not give rise to criminal liability "when it appears that there was no evil design, intention, or culpable negligence." (§ 26, par. Five.) CALCRIM No. 3404 provides an accident instruction. In general, this informs a jury a defendant is not guilty of a crime if he or she acted accidentally and without the intent required for the crime.
In People v. Anderson (2011) 51 Cal.4th 989, our Supreme Court held that, assuming a jury receives "complete and accurate instructions on the requisite mental element of the offense," a trial court need not instruct on accident except "to provide an appropriate pinpoint instruction upon request by the defense." (Id. at p. 998.)
In this matter, the jury was properly instructed regarding the elements of simple assault (§ 240), simple battery (§ 242), and battery by a prisoner on a nonprisoner (§ 4501.5). (CALCRIM Nos. 915, 960 and 2723.) In all three instructions, the jury was informed appellant had to act willfully in order to be guilty of either the greater offense (battery by a prisoner) or the lesser offenses (simple assault or battery). In all three instructions, the jury was told "[s]omeone commits an act willfully when he or she does it willingly or on purpose."
As appellant acknowledges, the defense did not request a pinpoint instruction regarding an accident. The jury, however, received complete and accurate instructions regarding the intent element necessary for a conviction of battery under section 4501.5. Thus, and contrary to appellant's assertions, the court did not have a sua sponte obligation to instruct the jury regarding an accident. (People v. Anderson, supra, 51 Cal.4th at p. 998.) Consequently, appellant's claim of instructional error is without merit. We turn to his assertions regarding alleged ineffective assistance of counsel.
B. Appellant does not establish ineffective assistance of counsel.
Appellant asserts it is possible the headbutt was an accident. He contends it is likely Gonzales (who is taller than appellant) had to bend over to apply the restraints. Appellant argues his trial counsel was ineffective in not seeking a pinpoint instruction on accident. We reject this claim.
We note appellant's trial counsel asked Gonzales if it was possible the contact had been an accident. Gonzales rejected that possibility.
Under the federal and state constitutions, a criminal defendant is entitled to the effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a defendant must establish two criteria: (1) that counsel's performance fell below an objective standard of reasonable competence; and (2) that he was thereby prejudiced. (Strickland v. Washington (1984) 466 U.S. 668, 687-688.) The defendant has the burden of showing both deficient performance and resulting prejudice. (People v. Lucas (1995) 12 Cal.4th 415, 436.)
Here, a dispute exists whether or not appellant's counsel was deficient in failing to request an accident instruction. However, we can dispose of this claim due to a lack of prejudice. As such, we proceed directly to the issue of harmless error. (See In re Fields (1990) 51 Cal.3d 1063, 1079 [permitting an ineffective assistance claim to be disposed of due to a lack of sufficient prejudice].)
To establish prejudice, the defendant must demonstrate a reasonable probability that, absent defense counsel's alleged errors, the result would have been different. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Majors (1998) 18 Cal.4th 385, 403.)
The instructions and closing argument provided to the jurors in this matter overwhelmingly demonstrate any alleged error was harmless. With CALCRIM No. 220, the jury was instructed on the definition of reasonable doubt. The jurors were told appellant was entitled to an acquittal and found not guilty unless the evidence proved he was guilty beyond a reasonable doubt.
With CALCRIM No. 250, the jury was informed the crime charged in this case required proof of the union, or joint operation, of act and wrongful intent. The jurors were told a person acts with "wrongful intent when he or she intentionally does a prohibited act."
With CALCRIM Nos. 915, 960 and 2723, the jury was provided with the elements of simple assault (§ 240), simple battery (§ 242), and battery by a prisoner on a nonprisoner (§ 4501.5), respectively. In all three instructions, the jury was informed appellant had to act willfully in order to be guilty of either the greater offense (battery by a prisoner) or the lesser offenses (simple assault or battery). In all three instructions, the jury was told "[s]omeone commits an act willfully when he or she does it willingly or on purpose." Written instructions were provided to the jury for its use during deliberations.
During closing argument, appellant's counsel asserted a willful touching did not occur. Defense counsel noted appellant underwent a strip search without incident. According to defense counsel, it did not make any sense that appellant allegedly headbutted Gonzales after the restraints were placed on appellant. The alleged strike occurred without any provocation or communication. Defense counsel argued no evidence showed appellant acted willfully, harmfully or offensively to Gonzales. "It just doesn't add up." Defense counsel asked the jurors to use their common sense and life experiences. The defense asserted reasonable doubt existed and the jury should find appellant not guilty.
The jury was properly instructed on the required mental element. In light of the verdict rendered, it is clear the jurors rejected the defense arguments and determined appellant acted willfully when he struck Gonzales. As such, it is abundantly apparent the jurors would have still returned a guilty verdict even if the defense had requested an accident instruction and the jury had received an instruction under CALCRIM No. 3404.
Based on this record, appellant does not demonstrate a reasonable probability that, absent defense counsel's alleged error, the result would have been different. (See People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) Our confidence in the outcome of this matter is not undermined. (See People v. Majors, supra, 18 Cal.4th at p. 403.) As such, prejudice did not occur. Thus, appellant does not establish ineffective assistance of counsel. (See Strickland v. Washington, supra, 466 U.S. at pp. 687-688.) Accordingly, appellant's arguments are without merit.
III. Appellant Has Forfeited His Claim Of Prosecutorial Misconduct And He Does Not Establish Ineffective Assistance Of Counsel.
Appellant raises a claim of prosecutorial misconduct. He asserts the prosecutor misstated the burden of proof during rebuttal argument.
A. Background.
During his initial closing argument, the prosecutor stated appellant was guilty because he had headbutted Gonzales without provocation. The prosecutor noted this incident occurred while appellant was serving a sentence in a California state prison, and Gonzales was a correctional officer.
During the defense arguments, appellant's trial counsel asserted no evidence was presented that appellant had acted willfully, harmfully or offensively towards Gonzales. The defense asked the jurors to use their common sense and find reasonable doubt.
In rebuttal, the prosecutor made the following statements. Because it is relatively short, we provide the prosecutor's entire rebuttal argument.
"THE COURT: People's closing?
"[THE PROSECUTOR]: Yes, your Honor.
"One of the things that a jury needs to do when you come in here and sit and listen to a case is to bring with you your common sense. Now, the defense is asking you to vacate any sense of common knowledge about the world and vacate your common sense because I know that you were here and you listened to the defense's case in chief. The defense offered no evidence to rebut the fact that this was anything but a deliberate act. Not one of their witnesses stated it was an accident. As a matter of fact, none of their witnesses testified that they even saw anything. So in reasonable doubt there has to be another reasonable explanation and the defense's case in chief, nothing. There is no other explanation.
"You heard from two officers —
"[APPELLANT]: They cover up everything.
"THE COURT: [Appellant], please don't interrupt.
"[THE PROSECUTOR]: Officer Gonzales was adjusting the restraints to transport [appellant]. Without provocation [appellant] headbutted him. It doesn't matter that the prior five minutes nothing happened. That doesn't matter. It just matters that it happened. And in the People's case you heard evidence that it did happen. In the defense case, nothing to rebut those facts. Nothing. So I submit to you, when you go to the back and talk about this case find [appellant] guilty because I proved this case beyond a reasonable doubt.
"Thank you."
B. Standard of review.
A prosecutor's actions violate the federal Constitution if it involves a pattern of egregious conduct that infects the trial with such unfairness as to deny due process. (People v. Penunuri (2018) 5 Cal.5th 126, 149.) Even if not fundamentally unfair, a prosecutor's conduct violates state law if it involves the use of deceptive or reprehensible methods in attempting to persuade either the trial court or the jury. (Ibid.)
C. Analysis.
Appellant asserts the prosecutor told the jurors that, to find him guilty, they were required to make factual findings supporting the defense theory. He contends the prosecutor's remarks suggested appellant had a burden to produce evidence in support of his defense. He argues the prosecutor's comments diluted the state's burden of proof from less than beyond a reasonable doubt.
We reject appellant's assertions. Appellant has forfeited this claim and he does not establish ineffective assistance of counsel.
1. Appellant has forfeited this claim.
A claim of prosecutorial misconduct is forfeited if the defense fails to object and fails to request an admonition to cure any harm. (People v. Centeno (2014) 60 Cal.4th 659, 674 (Centeno).) "The defendant's failure to object will be excused if an objection would have been futile or if an admonition would not have cured the harm caused by the misconduct." (Ibid.)
Appellant concedes his trial counsel failed to object when the prosecutor made his disputed statements. The prosecutor's comments were not so extreme or pervasive that a prompt objection and admonition would not have cured any alleged harm. Consequently, appellant has not preserved this issue for appeal, and it is forfeited. (Centeno, supra, 60 Cal.4th at p. 674.) We turn to his claim of ineffective assistance of counsel.
Appellant asserts this court should exercise its discretion to review this issue despite a failure to object below. We decline to do so. As our high court has stated, "we see no reason to carve out an exception to the general rule that a defendant must object to misconduct at trial to raise the claim on appeal." (People v. Cleveland (2004) 32 Cal.4th 704, 762 [addressing claim prosecutor improperly suggested responsibility for a death verdict rested elsewhere].)
2. Appellant does not establish ineffective assistance of counsel.
To overcome forfeiture, appellant raises a claim of ineffective assistance of counsel. He asserts the prosecutor misstated the law regarding the burden of proof. He contends his counsel failed to act reasonably in not objecting, and he argues his counsel's error was prejudicial. He maintains the prosecutor's erroneous rebuttal statements must have made an impression on the jurors, which would have adversely impacted their understanding of the burden of proof. He argues it is reasonably probable at least one juror would not have convicted him if his trial counsel had objected. We disagree.
We have already set forth the standard of review for a claim of ineffective assistance of counsel. Appellant bears the burden to establish his counsel failed to act reasonably, which caused prejudice. (Strickland v. Washington, supra, 466 U.S. at pp. 687-688; People v. Lucas, supra, 12 Cal.4th at p. 436.) To establish prejudice, appellant must demonstrate a reasonable probability that, absent his trial counsel's alleged error, the result would have been different. (People v. Ledesma, supra, 43 Cal.3d at pp. 217-218.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome." (People v. Majors, supra, 18 Cal.4th at p. 403.)
In a claim of prosecutorial misconduct based on remarks to the jury, the issue is whether it is reasonably likely the jury understood or applied the disputed comments in an improper or erroneous manner. (Centeno, supra, 60 Cal.4th at p. 667.) The prosecutor's entire argument and the jury instructions should be examined. (Ibid.)
In this matter, we will not analyze whether appellant's defense counsel acted competently. Instead, we will focus on prejudice. When the prosecutor's entire argument and the jury instructions are reviewed, it is not reasonably likely the jury understood or applied the disputed comments in an improper or erroneous manner. Therefore, it is not reasonably probable that, absent his trial counsel's alleged error, the result would have been different.
With CALCRIM No. 200, the jurors were told they must follow the law as explained to them by the court. If the attorneys' comments on the law conflicted, the jury was to follow the court's instructions.
With CALCRIM No. 220, the jury was instructed appellant was presumed innocent, and the prosecution was required to prove his guilt beyond a reasonable doubt. The court defined reasonable doubt for the jurors. The jury was told to acquit appellant unless the evidence proved his guilt beyond a reasonable doubt.
With CALCRIM No. 224, the jurors were informed that, before they could rely on circumstantial evidence to establish a fact, they must be convinced the prosecution proved each fact essential to that conclusion beyond a reasonable doubt. The jurors were further informed that, if they could draw two or more reasonable conclusions from the circumstantial evidence, they had to accept the one pointing to innocence.
With CALCRIM No. 226, the court instructed the jury how to evaluate witness testimony. The jurors were told they must judge the credibility or believability of the witnesses. They could believe all, part, or none of any witness' testimony.
With CALCRIM No. 355, the jury was told appellant had a constitutional right not to testify. The jurors were informed appellant could rely on the state of the evidence and argue the People failed to prove the charges beyond a reasonable doubt. The jurors were cautioned to not consider or discuss the fact appellant did not testify.
Following closing argument, the trial court instructed the jury with CALCRIM No. 3517. The court explained appellant could not be convicted of both a greater and lesser crime for the same conduct. The court emphasized that, if the jurors found appellant not guilty of a greater crime, they could find him guilty of a lesser crime if they were convinced beyond a reasonable doubt appellant was guilty of the lesser crime. The court concluded this instruction reminding the jury "[w]henever I tell you the People must prove something I mean they must prove it beyond a reasonable doubt."
The jury instructions in this matter clearly defined and delineated the prosecution's burden of proof. The jurors were given copies of these instructions to use during deliberations. Our Supreme Court has noted it is "significant" when a trial court correctly defines the reasonable doubt standard in the jury instructions, and those instructions are provided to the jury for its use during deliberations. (People v. Cortez (2016) 63 Cal.4th 101, 131.) We are to presume the jury treated the court's instructions as statements of law by a judge while the prosecutor's comments were seen as words spoken by an advocate in an attempt to persuade. (Ibid.) Arguments from counsel are generally considered to carry less weight with a jury than instructions from the trial court. (Centeno, supra, 60 Cal.4th at p. 676.)
Finally, the prosecutor's disputed comments were very brief. The prosecutor, however, had emphasized in his initial closing argument he had established the required elements to prove appellant's guilt under section 4501.5. The prosecutor finished his rebuttal argument stating, "I proved this case beyond a reasonable doubt." Both Gonzales and Garcia provided testimony overwhelmingly establishing appellant intentionally battered Gonzales.
Based on this record, it is not reasonably likely the jury understood or applied the prosecutor's disputed comments in an improper or erroneous manner. As such, appellant has not met his burden to establish prejudice. Appellant has not demonstrated a reasonable probability that, absent his trial counsel's alleged error, the result would have been different. Our confidence in the outcome is not undermined. Accordingly, appellant does not establish ineffective assistance of counsel, and this claim fails. (See Strickland v. Washington, supra, 466 U.S. at pp. 687-688; People v. Lucas, supra, 12 Cal.4th at p. 436.)
Appellant argues the standard of prejudice from Chapman v. California (1967) 386 U.S. 18 should be used. That is, whether the error was harmless beyond a reasonable doubt. (Id. at p. 24.) We disagree. Our high court has held prejudice in this situation exists if there is a " 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " (Centeno, supra, 60 Cal.4th at p. 676, quoting Strickland v. Washington, supra, 466 U.S. at p. 694.)
IV. The Trial Court Did Not Abuse Its Discretion In Imposing An Aggravated Sentence.
Prior to sentencing in this matter, the probation report had recommended a middle term of three years. The trial court, however, imposed the upper term of four years for appellant's conviction of battery by a prisoner on a nonprisoner (§ 4501.5). This sentence was doubled because of appellant's prior serious or violent felonies.
The probation officer had attempted to interview appellant. Appellant declined to complete the interview, stating it was not necessary because he was already completing a life sentence. Appellant told the probation officer, " 'The only thing I want to tell the Court is to go to mother fucking hell.' " At sentencing, the trial court noted it had read this comment in the report. The court said the upper term it intended to impose against appellant was not based on this statement. The court stated it had "completely ignored it for my exercise of discretion in choosing a triad to be imposed."
Just prior to sentencing, the court considered and denied appellant's motion to strike his prior felony convictions, which had occurred in 1999.
The parties agree the trial court based appellant's upper term sentence, in part, on an improper factor. A fact that constitutes an element of the offense may not be used to aggravate or enhance a sentence. (People v. Scott (1994) 9 Cal.4th 331, 350; Cal. Rules of Court, rule 4.420(d).) Battery under section 4501.5 requires the defendant to be serving a sentence in a California state prison. As we detail below, the court did comment at sentencing that this crime occurred inside a prison.
All future references to rules are to the California Rules of Court.
A. Background.
At sentencing, the court stated this was a "serious offense." The court noted Gonzales had not been severely injured, but he was injured enough that, according to the court's recollection, Gonzales was taken off work. According to the court, "this was an unprovoked attack by [appellant] on a correctional officer who was doing [his] job in a professional and careful manner."
The court reviewed appellant's criminal record. Appellant had a conviction in 1979 for driving under the influence. In 1999, he was convicted of four felonies, including sodomy with force involving a person under the age of 14 years (§ 286, subd. (c)). In January 2000, appellant received a life sentence of 15 years, along with a consecutive determinate term of eight years. The court determined the present offense was not as serious as appellant's prior offenses. The court made the following relevant comments.
Appellant was serving this term in prison when the current offense occurred.
"The circumstances that cause the Court to impose an upper term in this case, as I indicated, is that, in the Court's opinion, based on the evidence presented at the trial, the crime involved great violence, serious threat of bodily harm and other acts disclosing cruelty, viciousness and callousness, especially given the facts and circumstances in which it was conducted inside of a state prison. This is an act of violent conduct as the Court sees this case."
B. Standard of review.
We review a trial court's sentencing determination for an abuse of discretion. (People v. Sandoval (2007) 41 Cal.4th 825, 847.) In applying this standard, it is not our role to substitute our reasons for those omitted or misapplied by the trial court, nor to reweigh valid factors bearing on the decision below. (People v. Scott, supra, 9 Cal.4th at p. 355.)
C. Analysis.
We agree with the parties the court improperly relied on the fact this crime occurred inside a prison when imposing an upper term against appellant. (See People v. Scott, supra, 9 Cal.4th at p. 350; see also rule 4.420(d).) The issue is whether, despite that error, the court abused its discretion in imposing an aggravated sentence.
Appellant argues the court's other reasons do not withstand scrutiny. He contends his battery was not particularly vicious or distinctly worse than any other battery. He asserts the court failed to provide supporting facts to justify its sentencing choice, and the court merely read from the California Rules of Court. Appellant also maintains the record does not support the court's determination a threat of great bodily harm occurred. Finally, he notes the court failed to account for factors in mitigation, such as the fact appellant had been incarcerated for about 13 years prior to this incident without any reportable incidents in prison.
In contrast, respondent contends the trial court properly relied on other factors in aggravation. According to respondent, it is highly unlikely the court would have imposed a more favorable sentence had it known it was improper to rely on the fact that the offense occurred in prison. Despite the court's error, respondent urges us to affirm the sentence.
We agree with respondent and we reject appellant's arguments. The trial court did not abuse its discretion. Remand is unwarranted because it is not reasonably likely the court would have imposed a more favorable sentence absent the error.
After the trial court stated its indicated sentence, appellant's trial counsel requested the court to follow the recommendations from probation (which was for a middle term of three years). The parties dispute whether this was sufficient to preserve this issue for appellate review. We need not analyze this dispute. Even when we presume appellant preserved this claim, it nevertheless fails on its merits. Likewise, we need not address appellant's alternative claim of ineffective assistance of counsel. --------
A trial court is granted statutory discretion to determine which sentence "best serves the interests of justice." (§ 1170, subd. (b).) A sentencing court may impose an upper, middle or lower term based on stated reasons. (People v. Wilson (2008) 164 Cal.App.4th 988, 992.) The court's articulated reasons must be supported by a preponderance of the evidence in the record and they must reasonably relate to the particular sentencing determination. (People v. Scott, supra, 9 Cal.4th at pp. 349-350.)
When a trial court erroneously relies upon certain factors in imposing an upper term, reversal is only required when it is reasonably probable the trial court would give the defendant a more favorable sentence in the absence of the error. (People v. Osband (1996) 13 Cal.4th 622, 728; People v. Holguin (1989) 213 Cal.App.3d 1308, 1319.) As such, when a court states several factors warranting an upper term, and only some of those factors are erroneous, the sentence is generally affirmed. (People v. Holguin, supra, 213 Cal.App.3d at p. 1319; cf. People v. Flores (1981) 115 Cal.App.3d 924, 927 [when a trial court erroneously articulates two of three factors in aggravation, remand for resentencing is appropriate].)
Only a single factor in aggravation is necessary to support imposition of an upper term. (People v. Black (2007) 41 Cal.4th 799, 813; People v. Osband, supra, 13 Cal.4th at p. 728.) Circumstances in aggravation include a crime involving "great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness." (Rule 4.421(a)(1).)
In this matter, the sentencing judge heard the trial evidence firsthand. The court read the probation report and it heard arguments from counsel prior to sentencing. We presume the court considered the relevant factors because the record does not affirmatively reflect otherwise. (See rule 4.409.)
Although the court improperly noted this crime occurred in a prison, it is clear the court's focus was on how appellant carried out his attack on Gonzales. The court was also focused on how this attack impacted Gonzales. The court believed appellant's crime demonstrated "great violence, serious threat of bodily harm and other acts disclosing cruelty, viciousness and callousness." We do not disagree with the court's assessment.
The evidence overwhelmingly established appellant purposefully targeted Gonzales's temple. Both officers believed the headbutt had been intentional. After Gonzales placed the various restraints on appellant, he noticed the Martin chain was not fully secured. Gonzales unlocked the padlock and, while standing to appellant's right side, appellant headbutted Gonzales's right temple. According to Gonzales, appellant lunged and jumped toward Gonzales to deliver the strike to Gonzales's temple.
Garcia confirmed appellant had targeted Gonzales's head. According to Garcia, appellant lunged and headbutted Gonzales. Garcia stated that appellant "went deliberately right to the right and forward, swinging his head toward [Gonzales]." Garcia agreed he had been "securely holding" appellant when the headbutt happened. Garcia denied appellant could have lost his footing and fell. Garcia agreed appellant had struck Gonzales without any provocation.
Gonzales testified the headbutt caused him pain and swelling. He sought medical attention. The pain lasted "for approximately one to two days after the incident." He suffered a headache over that period of time. One of Gonzales's fingers was also injured during this incident. When he was headbutted, Gonzales had grabbed the Martin chain firmly and pulled it. The chain apparently rubbed against Gonzales's middle finger on his left hand, injuring the tendon. Gonzales told the jury he still had limited movement in that finger at the time of trial, and his finger was still sore.
In light of the court's comments regarding how appellant carried out this attack and how this crime impacted Gonzales, we agree with respondent it is reasonably probable the court would have still imposed an upper term sentence against appellant even in the absence of the court's error. Thus, despite the court's error, reversal is not required in this situation. Consequently, we will not remand for resentencing. (See People v. Osband, supra, 13 Cal.4th at p. 728; People v. Holguin, supra, 213 Cal.App.3d at p. 1319.)
Finally, we reject appellant's contention resentencing is required because the court failed to articulate factors in mitigation. A court may minimize or even completely disregard mitigating factors without stating its reasons. (People v. Lai (2006) 138 Cal.App.4th 1227, 1258; In re Handa (1985) 166 Cal.App.3d 966, 973.) It is the sentencing court's role to determine what, if any, factors in mitigation are established and whether criminal conduct was excused or culpability reduced. (People v. Regalado (1980) 108 Cal.App.3d 531, 538.) We will not reweigh the sentencing factors on appeal. (People v. Scott, supra, 9 Cal.4th at p. 355; People v. Jordan (1986) 42 Cal.3d 308, 317.)
Based on this record, the trial court's sentencing decision was not arbitrary and capricious. The court based its discretion upon an individualized consideration of appellant's offense. The court's reasons are supported by a preponderance of the evidence in this record. The court's justifications are also reasonably related to its particular sentencing determination. As such, we cannot say the trial court abused its discretion. (See People v. Sandoval, supra, 41 Cal.4th at p. 847; People v. Scott, supra, 9 Cal.4th at pp. 349-350.) Accordingly, appellant's arguments are without merit and this claim fails.
DISPOSITION
The judgment is affirmed.
LEVY, Acting P.J. WE CONCUR: FRANSON, J. MEEHAN, J.