Opinion
F084921
04-03-2023
THE PEOPLE, Plaintiff and Respondent, v. JESUS MELGAREJO, JR., Defendant and Appellant.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant. Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County. No. F22900193, Jeffrey Y. Hamilton, Jr., Judge.
Richard Jay Moller, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the State Attorney General, Sacramento, California, for Plaintiff and Respondent.
OPINION
THE COURT[*]
Appointed counsel for defendant Jesus Melgarejo, Jr., asked this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised of his right to file a supplemental brief within 30 days of the date of filing of the opening brief. Defendant responded, contending (1) the trial court should have stricken his prior "strike" conviction allegation and (2) the prosecutor committed misconduct by repeatedly referring to the complaining witness as "the victim." We affirm.
BACKGROUND
On the night of December 31, 2021, defendant committed acts of violence against his girlfriend because she refused to have sex with him after working a 12-hour shift. For about 15 minutes, he hit her with a closed fist, kicked her, and choked her with both hands until she felt she was losing consciousness. She screamed for him to stop. The attack splattered blood on the bed, floor, dresser, and wall. Afterward, defendant told her to clean up the mess, take a shower, then make him something to eat. She complied and then made him hamburgers, as he directed. The next morning, while defendant was still asleep, she left the apartment and fled to a friend's home. At the time of defendant's domestic violence, a protective order prohibited defendant from contacting the girlfriend.
On March 16, 2022, the Fresno County District Attorney filed an information charging defendant with corporal injury to someone in a dating relationship (Pen. Code, § 273.5, subd. (a); count 1) and misdemeanor willful disobedience of a protective order (§ 166, subd. (c)(1); count 2). The information further alleged defendant committed the domestic violence while out on bail or on his own recognizance (§ 12022.1) and had suffered a prior strike conviction within the meaning of the "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
All statutory references are to the Penal Code.
On May 10, 2022, a jury found defendant guilty on both counts. The same day, defendant admitted the prior strike and on-bail allegations.
On July 15, 2022, the trial court denied defendant's Romero motion to strike his prior strike conviction allegation. The court sentenced him to the midterm of three years, doubled to six years pursuant to the Three Strikes law. The court awarded credits and imposed various fines and fees.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
On September 9, 2022, defendant filed a notice of appeal.
DISCUSSION
I. Romero Motion
Defendant contends the trial court erred in denying his Romero motion to strike his prior strike conviction allegation. We disagree.
A. Facts
At sentencing, the trial court heard argument on the motion, including defendant's criminal history. Then the court stated the following:
"Had [defendant] had his gang-related vandalism [prior conviction] in 2011 and then went to work, got a job, started earning money, providing for himself and his family, doing those kind of things and then had this one abhorrent outlying piece of behavior where he engaged in domestic violence for which he took no ownership, went to trial, as is his right, and needed a jury to tell him that it was wrong in light of his multiple phone calls from jail to the victim [in violation of a protective order], if that had been the only thing, I think that alone would be difficult given his gang enhancement, gang involvement and the conduct here, but that's not all it is. [¶] … [¶]
"So the Romero [case] and the cases that come after it stand for the fact that someone with a character and prospects would deem them to be outside the spirit. [Defendant] seems like he's right within the whole framework of the purpose of [the] three strikes [law], and that is either choose to right your life and live it like an ordinary citizen or stay within the cesspool of crime and pay the consequences, and that's kind of what he's earned unfortunately. He still has a chance to turn himself around, and if he decides to do that, good for him. But the Court can't, after listening to the trial and evaluating his record, find that he's not someone that is directly in the spirit of [the] three strikes [law], and therefore, will not Romero the strike."
B. Analysis
The Three Strikes law is intended "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of one or more serious or violent felony offenses." (§ 667, subd. (b).) The law establishes a sentencing norm that "circumscribes the trial court's power to depart from this norm" and requires the trial court to justify its departure from the norm, creating a "strong presumption that any sentence that conforms to these sentencing norms is both rational and proper." (People v. Carmony (2004) 33 Cal.4th 367, 378 (Carmony).)
In Romero, supra, 13 Cal.4th 497, the Supreme Court held that section 1385, subdivision (a), permits a trial court to strike prior felony conviction allegations in cases brought under the Three Strikes law when doing so is "in furtherance of justice." (Romero, at pp. 529-530.) The requirements for striking prior convictions under the Three Strikes law are "stringent" and the circumstances must be" 'extraordinary'" for a career criminal to fall outside the spirit of the law. (Carmony, supra, 33 Cal.4th at pp. 377-378.) A court considers "whether, in light of the nature and circumstances of [a defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his [or her] background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he [or she] had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
We apply the deferential abuse of discretion standard when reviewing the trial court's refusal to dismiss a prior strike. (Carmony, supra, 33 Cal.4th at p. 374.) "To show an abuse of discretion, the defendant must show that the trial court's decision was 'so irrational or arbitrary that no reasonable person could agree with it.'" (People v. Mendoza (2022) 74 Cal.App.5th 843, 856.)
Here, the trial court carefully considered defendant's past and current offenses and determined that he had not shown himself to be outside the spirit of the Three Strikes law. We agree with this assessment and find no abuse of discretion. Defendant suggests on appeal that his hitting, kicking, and choking his girlfriend for refusing sex was a "relatively minor" offense and "not violent or life-threatening," and thus the court should have struck his prior. In light of the horrific-or as the trial court put it, abhorrent-facts of this case, this suggestion only serves to confirm the trial court's assessment.
II. Improper Reference to "Victim"
Defendant next contends the prosecutor and prosecutorial witness improperly referred to defendant's girlfriend as "the victim" during trial, thereby violating his due process rights. We see no error and, even if error occurred, it was harmless.
A. Facts
During motions in limine, the court addressed the defense motion to prohibit referring to defendant's girlfriend as "the victim." The trial court ruled that in questioning, the attorneys should use the term "complaining witness," but in argument, the prosecutor could use the term "victim."
In their opening statements, both the prosecutor and defense counsel referred to the girlfriend as "the complaining witness." Then, in questioning, the prosecutor used "complaining witness" and occasionally "victim." A prosecution witness, the responding police officer, used "victim" without objection. During argument, the prosecutor used "victim," whereas defense counsel argued extensively that the girlfriend was a savvy manipulator and not a domestic violence victim at all. In one jury instruction, the court used the term "alleged victim," but never referred to the girlfriend as "the victim."
B. Analysis
In People v. Williams (1860) 17 Cal. 142 (Williams), the defendant argued a jury instruction referring to the deceased as "his victim" prejudiced the jury against defendant in his murder trial. (Id. at p. 146.) The court reversed on other grounds, but cautioned that "[t]he word victim, in the connection in which it appears, is an unguarded expression, calculated, though doubtless unintentionally, to create prejudice against the accused." (Id. at p. 147.) The court stated it was improper for the trial court to have used the term "victim" when instructing the jury because "[i]t seems to assume that the deceased was wrongfully killed, when the very issue was as to the character of the killing. We are not disposed to criticise language very closely in order to reverse a judgment of this sort, but it is apparent that in a case of conflicting proofs, even an equivocal expression coming from the Judge, may be fatal to the prisoner." (Ibid.)
Then, in People v. Wolfe (1954) 42 Cal.2d 663 (Wolfe), the Supreme Court again addressed use of the word "victim." In Wolfe, the prosecutor and the defendant referred to the deceased as "the victim" during the defendant's cross-examination. (Id. at p. 666.) On appeal, the defendant argued the prosecutor's use of that term assumed the defendant's guilt and created reversible error. But the Supreme Court disagreed, distinguishing the case from Williams where the court, not the prosecutor, used the term "victim." (Ibid.) The Wolfe court also noted the jury was properly instructed that it was the sole judge of the value and effect of evidence and that it must apply the reasonable doubt standard. (Ibid.)
Here, as in Wolfe, the trial court made no reference to defendant's girlfriend as "the victim"; it was the prosecutor and the police officer witness who used the term. The distinction is important, and Wolfe controls here. There was no error. Further, even if error did occur, the overwhelming evidence of defendant's guilt rendered the error harmless under any standard. (See, e.g., People v. Booker (2011) 51 Cal.4th 141, 186 [where jury was properly instructed and evidence of defendant's guilt was overwhelming, any alleged prosecutorial misconduct in closing argument was harmless under either federal or state standard of error].)
DISPOSITION
The judgment is affirmed.
[*] Before Franson, Acting P. J., Peña, J. and DeSantos, J.