Opinion
A103410 A108912
8-16-2007
THE PEOPLE, Plaintiff and Respondent, v. KEVIN LEON MORRIS, SR., Defendant and Appellant. In re KEVIN LEON MORRIS, SR., on Habeas Corpus.
NOT TO BE PUBLISHED
Appellant Kevin Leon Morris, Sr. (appellant or Morris) was charged with assault on a custodial officer (Pen. Code, § 241.1) and battery (§ 243.1), both committed on Correctional Officer Jared Bussard, and resisting a peace officer, Dennis Bierman (§ 148, subd. (a)(1)). The information further alleged a prior conviction under the three strikes law (§§ 1170.12, subds. (a)-(d), 667 subds. (b)-(i)) and three prior prison terms (§ 667.5).
All further statutory references are to the Penal Code unless otherwise indicated.
A jury found appellant guilty of all three counts. Appellant admitted the prior strike conviction and the prior prison terms. The trial court sentenced him to the upper term of three years on both the assault and battery convictions, and doubled each term under section 1170.12, subdivision (c)(1). The court also sentenced appellant to one year for resisting a peace officer, and ordered the sentences on all three counts to run concurrently. The court imposed three one-year enhancements for each of the prior prison terms under section 667.5, for a total prison term in the underlying case (case No. CR32555) of nine years.
At the same time, the court also sentenced appellant in case No. CR5489 to eight months for felony possession of a firearm. Appellant raises no issues regarding this case on appeal.
Appellant raised numerous issues in his appeal to this court, including ineffective assistance of counsel, errors in admission of evidence, prosecutorial misconduct, and unconstitutionality of the statutory scheme pertaining to battery on a custodial officer. He also raised a number of sentencing issues, including the claim that his sentence is unconstitutional and must be reversed pursuant to Blakely v. Washington (2004) 542 U.S. 296 (Blakely). Lastly, appellant also filed a petition for writ of habeas corpus alleging ineffective assistance of counsel and denial of his constitutional right to testify, which we considered with his original appeal.
In our unpublished opinion, we rejected most of appellants appellate issues and denied his petition for writ of habeas corpus. However, we agreed with appellants Blakely argument, and accordingly remanded for resentencing. (People v. Morris (March 21, 2005) A103410 (Morris I).)
A petition to the California Supreme Court was subsequently granted, and on September 7, 2005, an order was issued by the Supreme Court transferring the matter to this court with directions to vacate our prior decision and to reconsider the case in light of People v. Black (2005) 35 Ca1.4th 1238 (Black I).
Thereafter, we issued our second unpublished opinion vacating our earlier opinion in Morris I, and rejected appellants claim of Blakely error based on Black I. (People v. Morris (Oct. 26, 2005) A103410 (Morris II).) However, Morris II did not include that portion of our opinion in Morris I in which we rejected the balance of appellants claims. This oversight was raised by appellant in his petition for rehearing filed on November 10, 2005. Accordingly, we granted appellants petition (Order (Nov. 28, 2005) Kline, P. J.), vacated our opinion in Morris II and on December 20, 2005, issued a third unpublished opinion. (People v. Morris (Dec. 20, 2005) A103410 (Morris III).)
On February 20, 2007, the United States Supreme Court issued an order granting certiorari, vacating the judgment, and remanding to us for consideration in light of Cunningham v. California (2007) __U.S. __, 127 S.Ct. 856 (Cunningham). (Morris v. California (2007) __U.S. __ .)
Appellant submitted a letter on March 9, 2007, requesting that in light of Cunningham we reissue our original opinion with appropriate modification, and without the need for further briefing. Thereafter, on July 19, 2007, our Supreme Court issued decisions in People v. Black (2007) __ Cal.4th __ (Black II), and People v. Sandoval (2007) __ Cal.4th __ (Sandoval). We provided the parties the opportunity to file letter briefs discussing the impact of these decisions to this appeal. We now affirm.
I.
PROCEDURAL BACKGROUND
Morris was charged by information with assault on a custodial officer (§ 241.1) and battery (§ 243.1), both committed on Correctional Officer Jared Bussard. The information also charged Morris with resisting a peace officer, Dennis Bierman. (§ 148, subd. (a)(1).) The information further alleged a prior conviction under the three strikes law (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)) and three prior prison terms (§ 667.5).
A jury found Morris guilty of all three counts. Morris admitted the prior strike conviction and the prior prison terms. The trial court sentenced Morris to the upper term of three years on both the assault and battery convictions, and doubled each term under section 1170.12, subdivision (c)(1). The court sentenced Morris to one year for resisting a peace officer, and ordered the sentences on all three counts to run concurrently. The court imposed three one-year enhancements for each of the prior prison terms under section 667.5, for a total prison term in the underlying case (case No. CR32555) of nine years.
As previously stated, at the same time, the court also sentenced Morris in case No. CR5489 to eight months for felony possession of a firearm. Morris raises no issues regarding this case on appeal.
II.
FACTUAL BACKGROUND
On February 17, 2003, Morris was in custody in the Lake County jail. He was escorted into the multi-purpose room at the jail to attend a rules violation hearing. Rules violation hearings are conducted to determine if an inmate has broken a jail rule, and are heard by two officers and one civilian employee.
Correctional Officer Jared Bussard was in charge of Morriss hearing. Morris refused to proceed with the hearing if Officer Bussard was on the panel, stating that he
felt Officer Bussard was biased against him. Officer Bussard told him that no one else was available to hold the hearing, and that the hearing could not be rescheduled because it was required to be held within 72 hours of the inmate being served with the paperwork. He told Morris that he would consider his actions to be a refusal of the hearing. An argument ensued, and Officer Bussard instructed Morris to return to his cell. When he did not, Officer Bussard escorted him back to his cell by taking "him by underneath the arm and lift[ing] him up a little bit to get him out of the chair." Officers Parks, Hartman, Bierman and civilian aide Effestionie followed.
Officer Bussard removed Morriss restraints outside of his cell and instructed him to proceed to his cell. When Morris refused, Officers Bussard and Bierman "took control" of his arms and escorted him to his cell. About 10 feet from his cell, Morris became more aggressive and tried to pull away. The two officers placed Morris in his
cell and started to close the door. Morris "turned around quickly in an aggressive manner with his hands up in a fighting posture and started charging" towards Officer Bussard about four feet away. Because there was not enough space to close the cell door, Officer Bussard entered the cell and placed his arms around Morriss shoulders, and they both fell to the bed.
Officers Parks, Hartman and Bierman came into the cell to help restrain Morris. Morris was "thrashing around and kicking and screaming violently . . . ." Officer Parks tried to contain his legs. Morris had a "tight hold" on Officer Bussards shirt collar and was trying to hit him. Morris hit Officer Bussard once in the face. After Morris hit Officer Bussard in the face, Officer Bussard accidentally struck Morris near his mouth while trying to gain control of his right hand, which he ultimately was able to do. Morris was bleeding from his mouth area. He tried to bite Officer Bussards hand, and when he could not, he spit in the officers face. The officers attempted to roll Morris onto his stomach so they could put handcuffs on him. When they did, Morris put his hands under his chest. The officers finally got his arms out and handcuffed him from behind. Officer Bussard testified that he followed the jail policy on the amount and kind of force used. He used "the minimal force necessary to gain his compliance."
Officers took Morris to the booking room. He was bleeding from around his mouth and complained of wrist and back injuries. The officers called for medical staff, and a jail nurse saw Morris.
Officers Bussard and Bierman went to a hospital and were treated for their injuries. Officer Bussard had lower back pain and some scrapes and minor cuts on his face. The doctor placed him off-duty for two days due to swelling in his back and hip area. Medical personnel drew blood at his request because he was "concerned about the blood being spit in [his] face," and he did not "know what kind of diseases [Morris] may or may not have had." Officer Bierman had a sprained ankle, a puncture wound and scrapes on his left hand, and a contusion below his left knee. He was placed on light work duty for 10 days.
III.
DISCUSSION
A. Ineffective Assistance of Counsel
1. Concession of Guilt in Closing Argument
Morris argues he was denied the effective assistance of counsel because, in closing argument, his attorney conceded he was guilty of resisting a peace officer. Morris maintains that this concession "effectively conceded [his] guilt to the felony charges [of assault and battery]" and had "no tactical value," denying him his constitutional rights.
In order to demonstrate ineffective assistance of counsel, a defendant must show that counsels performance was inadequate when measured against the standard of a reasonably competent attorney, and that counsels performance prejudiced defendants case is such a manner that his representation "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." (Strickland v. Washington (1984) 466 U.S. 668, 686.) "To be entitled to relief based on ineffective assistance of counsel, [defendant] has the burden of showing counsels performance was inadequate and of affirmatively demonstrating he was prejudiced by trial counsels errors. [Citation.]" (People v. Hayes (1991) 229 Cal.App.3d 1226, 1234-1235 (Hayes).) " `In determining whether counsels performance was deficient, a court must in general exercise deferential scrutiny [citation]. . . . `Although deference is not abdication . . . courts should not second-guess reasonable, if difficult, tactical decisions in the harsh light of hindsight. . . ." (People v. Brodit (1998) 61 Cal.App.4th 1312, 1335, citing People v. Scott (1997) 15 Cal.4th 1188, 1212.)
"[A] defense attorneys concession of his clients guilt, lacking any reasonable tactical reason to do so, can constitute ineffectiveness of counsel. [Citations.]" (People v. Gurule (2002) 28 Cal.4th 557, 611.) "[H]aving chosen to make a closing argument, counsel cannot argue against his client. [Citations.] More particularly, unless his client consents, counsel cannot expressly or impliedly argue to the jury that his client is guilty. [Citations.]" (People v. Diggs (1986) 177 Cal.App.3d 958, 970.) Nevertheless, there are circumstances under which it can be sound trial tactics to " `adop[t] a more realistic approach. " (People v. Gurule, supra, 28 Cal.4th at p. 612.) "[W]here the evidence of guilt is quite strong, `it is entirely understandable that trial counsel, given the weight of incriminating evidence, made no sweeping declarations of his clients innocence but instead adopted a more realistic approach, namely, that . . . defendant . . . may have committed [some of the charged crimes] . . . . " (Ibid.) " `[G]ood trial tactics [may demand] complete candor with the jury. [Citation.]" (Ibid.)
Morris relies on People v. Diggs, supra, 177 Cal.App.3d 958, in which the court found that the defense attorneys concession of the defendants guilt in closing argument was ineffective assistance of counsel. In that case, the defendant was charged with kidnapping and a number of different sex offenses. His attorney gave a "remarkable closing argument which defies summary description and . . . [¶] is largely incoherent. To the extent it is comprehensible, it appears to argue that a `permissive society in general—and television and rock music in particular—produce a nihilistic attitude in young people so that society should be held responsible for defendants conduct." (Id. at p. 967.) His attorney did not argue "his clients only defense supported by the evidence: denial of criminal activity. Rather, [his] argument admitted defendants participation in the crimes and asked the jury to consider a nondefense by way of excuse." (Id. at p. 968.) Not surprisingly, the court held that the attorneys "closing argument effectively withdrew a crucial defense and admitted his clients guilt without his clients consent. Moreover, in the unusual circumstances presented here, ineffective assistance of counsel is apparent on the face of the record; there is simply no plausible explanation for [counsels] bizarre argument." (Id. at p. 970, fn. omitted)
Counsels closing argument here is in no way comparable to that made in People v. Diggs. Morriss attorney made a rational tactical argument that the evidence showed only that Morris had resisted a peace officer, but that there was insufficient evidence to prove that he committed the assault and battery. He argued that the prosecution had not shown that appellant "willfully either assaulted or battered Officer Bussard." Counsel asserted that appellant may have simply been spitting blood out of his mouth, rather than spitting at Officer Bussard. Counsels argument also stressed the burden of proof, noting that "I certainly think its way more likely than not that Mr. Morris did these things . . . [but] [t]hats not good enough."
Moreover, contrary to Morriss assertion, his attorneys argument did not "effectively" concede his guilt of assault and battery by contradicting his "only viable defense"—that the officer used excessive force. "The long-standing rule in California and other jurisdictions is that a defendant cannot be convicted of an offense against a peace officer ` "engaged in . . . the performance of . . . [his or her] duties" unless the officer was acting lawfully at the time the offense against the officer was committed. . . . `The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in "duties," for purposes of an offense defined in such terms, if the officers conduct is unlawful. . . ." (In re Manuel G. (1997) 16 Cal.4th 805, 815, citing People v. Gonzalez (1990) 51 Cal.3d 1179, 1217.) Here, however, Morris was charged with resisting a different officer than the one he was charged with assaulting and battering. The jury could have found that Officer Bussard used excessive force even if Officer Bierman did not.
Morriss attorney made that distinction clear to the jury in his argument: "It doesnt matter at all whether Mr. Morris was resisting Ms. Parks or Officer Hartman or Officer Grammer or Officer Russell or Officer Hauff. Doesnt matter. Hes not charged with doing any of those things. He is only charged with resisting Officer Bierman and he is charged with assaulting Officer Bussard and committing a battery upon Officer Bussard. . . . [¶] Officer Bussard is the specific named victim in counts one and two. So you cant transfer what [Morris] did with somebody else to Officer Bussard. And Officer Bierman is the specifically named victim in count three." Accordingly, the concession that Morris resisted Officer Bierman did not negate his excessive force defense to the charges that he assaulted and battered Officer Bussard.
Following oral argument, we ordered additional briefing on the extent to which the recent case of Florida v. Nixon (2004) 543 U.S 175, applies to this issue. Morris filed a supplemental brief in which he argues that the case "indicates that a concession of guilt without explicit client consent in a non-death penalty case may be considered per se ineffective assistance of counsel, requiring automatic reversal . . . ." Morris makes the same argument in a petition for writ of habeas corpus filed concurrently, in which he claims that he did not consent to his attorneys concession in closing argument.
In Florida v. Nixon, the defendant was charged with first-degree murder, kidnapping, robbery and arson. The evidence against him was "overwhelming," and his attorney concluded that "the best strategy would be to concede guilt, thereby preserving his credibility in urging leniency during the penalty phase." (Florida v. Nixon, supra, 543 U.S. at pp. 180-181.) Defendants attorney attempted to explain this strategy to him, but he remained "unresponsive . . . never verbally approv[ing] or protest[ing]." (Id. at p. 181.) The court held that failure to obtain the defendants express consent to a strategy of conceding guilt in a capital trial does not automatically render counsels performance deficient, finding that defense counsels concession of guilt was not the " `functional equivalent of a guilty plea, [citation]" which would require client consent. (Id. at pp. 187-188, 191.) Rejecting the assertion that counsels effectiveness should be evaluated under the per se prejudice standard of United Stated v. Cronic (1984) 466 U.S. 648, the court applied the Strickland standard, and held that counsels concession strategy in the circumstances of the case was reasonable. (Florida v. Nixon, supra, at pp. 187-188.)
Strickland v. Washington, supra, 466 U.S. at p. 688.
Morris contends that "Florida v. Nixon indicates that concessions of guilt without client consent in a non-death penalty case . . . would constitute per se prejudice, requiring automatic reversal." He bases this conclusion on the courts statement that "[o]n the record thus far developed, [defendants counsels] concession of [his] guilt does not rank as a `fail[ure] to function in any meaningful sense as the Governments adversary. [Citation.] Although such a concession in a run-of-the-mine trial might present a closer question, the gravity of the potential sentence in a capital trial and the proceedings two-phase structure vitally affect counsels strategic calculus." (Florida v. Nixon, supra, 543 U.S. 190-191, fn. omitted.)
The courts statement that a concession of guilt in a "run-of-the-mill trial might present a closer question" is certainly not a mandate for automatic reversal. The charges against a defendant are one more variable in a trial counsels strategic calculus, not the deciding factor. Had Morriss counsel conceded his guilt to all of the charges against him, as counsel did in Florida v. Nixon, this might be a closer case. In contrast, Morriss counsel only conceded his guilt to the less serious charge of resisting Officer Bierman, while vigorously arguing against the charges of assault and battery against Officer Bussard. Given the circumstances of this case, the concession was not a "fail[ure] to function in any meaningful sense as the Governments adversary," requiring application of the Cronic standard. Instead, applying the Strickland standard, the concession was a reasonable trial strategy which we will not second-guess on appeal. (Strickland v. Washington, supra, 466 U.S. at p. 686; see Florida v. Nixon, supra, 543 U.S. at p. 190; People v. Brodit, supra, 61 Cal.App.4th at p. 1335.)
We note that a violation of section 148 requires that defendant "willfully resists, delays, or obstructs" a peace officer, not a particularly high factual bar. (§ 148, subd. (a)(1).)
2. Morriss Failure to Consent to Concession of Guilt in Closing Argument
In his petition for writ of habeas corpus, Morris argues that his trial counsel was ineffective because he conceded Morriss guilt to the resisting arrest charge in closing argument without obtaining Morriss consent. Morris states in his declaration that "[w]hen I heard Mr. Rhoadess closing argument, I was extremely surprised and disappointed when he conceded several times that I was guilty of resisting arrest. I understood that he had effectively pleaded my guilt to all of the charges."
Morriss trial counsel agrees that he "did not consult specifically with [Morris] about the content or style of either my opening statement to the jury, nor my closing argument."
Morriss declaration, however, is contradicted by the record. Morris could not have been "surprised" during closing argument by his attorneys concession that the evidence showed that he resisted a peace officer, because his attorney made the same concession in his opening statement, with Morris present in the courtroom. Morris does not assert that he communicated his opposition to this strategy to anyone. Consequently, it is apparent that Morris knew of the defense strategy from at least the time of his attorneys opening statement, and made no objection to it. His petition does not state a prima facie case for relief. (See People v. Duvall (1995) 9 Cal.4th 464, 474-475.)
Morriss attorney conceded in his opening statement that, "We are relatively confident that the evidence will show you that there may have been a resisting of the authority of the officers but that there is no assault or battery upon any officer in this case."
Had he disagreed with it at the time, he could have brought a motion pursuant to People v. Marsden (1970) 2 Cal.3d 118, seeking new counsel, a procedure he had employed previously in this case and with which he admitted he was "very familiar."
3. Denial of Right to Testify
Morris also argues in his habeas petition that his attorney was ineffective in that he failed to "adequately" advise him of his right to testify, "told him not to testify," and indicated to him that he "would not put [Morris] on the stand." Consequently, Morris claims that his waiver of his right to testify was "involuntary."
"[T]he decision to place a defendant on the stand is ordinarily within the competence and purview of trial counsel . . . . [Citation.]" (Hayes, supra, 229 Cal.App.3d at p. 1231.) A defendant, however, has the right to testify, even if testifying is contrary to counsels advice. (People v. Nakahara (2003) 30 Cal.4th 705, 719.) "When the record fails to disclose a timely and adequate demand to testify, `a defendant may not await the outcome of the trial and then seek reversal based on his claim that despite expressing to counsel his desire to testify, he was deprived of that opportunity. " (People v. Alcala (1992) 4 Cal.4th 742, 805-806, citing Hayes, at pp. 1231-1232; People v. Guillen (1974) 37 Cal.App.3d 976, 984-985.) The "right to testify can be waived by conduct and does not require a personal and explicit waiver . . . ." (Hayes, supra, at p. 1234.)
Here, Morris has failed to make a prima facie showing that he was denied the right to testify. (People v. Duvall, supra, 9 Cal.4th at pp. 474-475.) In order to demonstrate a denial of the right to testify, a defendants declaration must assert that he communicated his or her desire to testify to trial counsel. (See Hayes, supra, 229 Cal.App.3d at p. 1235, fn. 12.) Morriss declaration states that "I wanted to testify in my defense. [Counsel] told me not to testify, and said that he would not put me on the stand." In contrast to the defendants declaration in Hayes, Morriss declaration does not indicate that he told his attorney that he wanted to testify, or that his attorney, knowing of his wishes, nevertheless refused to allow him to testify. The fact that his attorney "told [him] not to testify" reflects the tactical advice of counsel, not ineffective assistance.
While the record does not reflect his counsels reasons for that advice, it does indicate that Morris was a defendant in 16 prior cases, some resulting in conviction of more than one offense.
Similarly, Morriss declaration does not indicate in what way his attorneys advice regarding his right to testify was "inadequate." While he claims in the petition that "he was not adequately advised that the decision to testify was ultimately his own," his declaration is silent in this regard. Morriss trial attorney indicates that, though he does not "specifically recall the content of any conversation with [Morris] regarding whether he would or should testify at trial[,] . . . I am certain that I did not preclude him from testifying by specific words or actions. . . . I have represented thousands of clients . . . . [I]n each [case] I have advised the client that he or she had a right to testify, and that decision was one only he or she could make, that no attorney or anyone else could make that decision for him or her. I always point out the potential benefits of testifying, and advise of the negative consequences as well [such as impeachment with prior convictions.] . . . I am confident that I had a similar conversation with [Morris]." Because Morriss declaration states nothing about what he claims was inadequate about his attorneys advice, he has failed to state a prima facie case for relief.
Morris argues that his counsels alleged errors, some of which he claims resulted in the denial of his right to testify, require reversal per se under the standard of United States v. Cronic, supra, 466 U.S. at pp. 656-657. Prejudice based on ineffective assistance of counsel is only presumed "[i]f counsels deficiencies were so severe as to result in a complete breakdown of the adversary process . . . ." (People v. McDermott (2002) 28 Cal.4th 946, 991.) "Otherwise, the defendant must show prejudice `in the sense that it "so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." " (Ibid., citing People v. Kipp (1998) 18 Cal.4th 349, 366.) Even if Morris had been denied his right to testify, the Chapman harmless error standard would apply. (Hayes, supra, 229 Cal.App.3d at p. 1234, fn. 11; People v. Johnson (1998) 62 Cal.App.4th 608, 634-635, and cases cited therein.)
Chapman v. California (1967) 386 U.S. 18.
We disagree, as did the court in People v. Johnson, supra, 62 Cal.App.4th at pages 634-636, with the one older California case to the contrary. (See People v. Harris (1987) 191 Cal.App.3d 819, 826.)
Morris has not shown how he was prejudiced by his attorneys alleged failure to "adequately" advise him of his right to testify. Morris does not contend that he was unaware of his right to testify. The record indicates that he was advised by the court of his right to testify on his own behalf at the time his counsel was appointed. Nor has Morris shown prejudice due to his failure to testify. In his declaration, he states that: "I did nothing to provoke Officer Bussard and the other officers involved in the February 17, 2003 incident. They entered my cell and tackled me. I struggled against them in self-defense. I was punched in the mouth during the attack and was bleeding. I believe that Officer Bussard and the other officers involved in the incident used excessive force against me." There was no dispute, however, that the officers entered Morriss cell, struggled to subdue him on the bed, or that Officer Bussard hit him in the mouth during the incident, causing his mouth to bleed. His attorney vigorously argued the defense of excessive force, noting the testimony that Officer Bussard hit Morris, though it was claimed to be "accidental," and that Morriss mouth was bleeding afterwards. Morriss apparent wish to testify that he "believed" the force used against him was excessive was a determination for the jury to make based on the evidence. Accordingly, Morris has not demonstrated any prejudice based on the claimed errors.
B. Evidence of Officer Bussards Concern About Communicable Diseases
1. Admission of Evidence
Morris argues that the "entire line of questioning" about Officer Bussards concern about communicable diseases as a result of Morris spitting blood on him was "misleading, irrelevant and highly prejudicial." He claims that the court erred in overruling his counsels objection to one of the questions in that regard. We review that ruling for abuse of discretion. (People v. Benson (1990) 52 Cal.3d 754, 786.)
Morris objects on appeal to the following line of questions:
"Q. Did the fact that the defendant spit in your face cause you any concerns for your safety?
"A. It caused me great concern for the safety of myself and my family.
"Q. Why is that?
"A. Because I dont know what kind of diseases that this person may or may not have had.
"Q. And have you during your career as a correctional officer supervised inmates known to have AIDS?
"A. Yes, many.
"Q. Hepatitis C?
"A. Yes.
"Q. Tuberculosis?
"A. Yes.
"Q. Are inmates required to be tested for transmissible diseases before they are incarcerated at the jail facility?
"A. No, they are not.
"Q. Do you know whether or not each inmate at the jail has any kind of transmissible disease?
"A. No, I dont.
"[Morriss counsel]: Objection, relevance. Im having trouble making a connection here.
"The Court: Sustained.
"Q. On February 17th, the date of this incident, did you know whether or not the defendant had any transmissible disease?
"A. No.
"[Morriss counsel]: Same objection.
"The Court: Overruled.
"Q. On February 17th when you went to the hospital, did you get tested for transmissible diseases?
"A. Yes.
"Q. And are you going to be having any other tests for that reason in the future?
"A. Yes."
At the outset, we note that at trial, Morriss counsel did not object to the "entire line of questioning," but only to two questions, thereby waiving any objections to the others. His first objection was sustained. The court overruled his relevance objection to the following question: "On February 17th, the date of this incident, did you know whether or not the defendant had any transmissible diseases?"
Morris claims that the evidence of whether Officer Bussard knew on the date of the incident whether Morris had any communicable disease "had no possible relevance" because "there is no injury requirement under Penal Code section 243.l." Both officers, however, testified regarding their injuries and medical treatments received. Officer Bussards concern about communicable diseases explained why certain medical tests were performed. The evidence, moreover, was potentially relevant for other reasons. For example, Officer Bussards knowledge of whether or not Morris had a communicable disease at the time of the incident may have been a factor in determining whether Officer Bussard acted in a reasonable manner in restraining Morris. We find no abuse of discretion in admitting this evidence.
2. Prosecutorial Misconduct
Morris also maintains that the prosecutor committed misconduct because his introduction of evidence and closing argument in this regard were "misleading," "highly deceptive or outright false." The portion of the prosecutors closing argument to which Morris objected was as follows: "This case is an extremely serious case. The case, as you heard Officer Bussard testify, the inmates are not tested for dangerous transmissible diseases that can be transferred through blood or saliva; and the defendant spit in his face. The people have AIDS, hepatitis, tuberculosis and the officers dont know who has what in there. Many times people have these diseases some time before they even know—." Morriss counsel objected at this point, and a sidebar conference was held but not reported. The prosecutor conceded that Morris had tested negative for AIDS and other diseases before trial. The court ruled that the "argument was not relevant," and the prosecutor stated he would discontinue the line of argument.
The record contains no indication that Morris objected to the argument on the basis that it was misconduct or sought that the jury be admonished to disregard the argument.
"[A] prosecutors knowing use of false evidence or argument to obtain a . . . conviction . . . deprives the defendant of due process . . . ." (People v. Sakarias (2000) 22 Cal.4th 596, 633.) Similarly, a prosecutor commits misconduct not rising to the level of a due process violation if he or she uses " ` " `deceptive or reprehensible methods to attempt to persuade . . . the jury. " " (People v. Hill (1998) 17 Cal.4th 800, 819.) "The applicable federal and state standards regarding prosecutorial misconduct are well established. `"A prosecutors . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct `so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process. " [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ` "`the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. " " (People v. Samayoa (1997) 15 Cal.4th 795, 841.) [¶] Regarding the scope of permissible prosecutorial argument, our Supreme Court recently noted " ` " `a prosecutor is given wide latitude during argument. The argument may be vigorous as long as it amounts to fair comment on the evidence, which can include reasonable inferences, or deductions to be drawn therefrom. [Citations.] It is also clear that counsel during summation may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature. [Citation.] . . ." [Citation.] [Citation.]" (People v. Hill, supra, 17 Cal.4th at p. 819.)
Morris claims the prosecutor here committed misconduct similar to that found in Brown v. Borg (9th Cir. 1991) 951 F.2d 1011. In that case, the defendant was convicted of first degree murder premised on the felony-murder rule. The prosecutor introduced evidence suggesting that the murder was committed in the course of a robbery, including evidence that the victims wallet and gold chains were not found, and elicited a detectives expert opinion that this demonstrated the victim was killed during a robbery. (Id. at pp. 1012-1013.) In closing argument, the prosecutor stated that " `[t]here was no testimony presented whatsoever that there was any property of any value found on . . . the victim. No wallet, no gold chains, which the uncle indicated that he had seen on his nephew earlier that evening. " (Id. at p. 1013.) In fact, the prosecutor knew during trial that the victims wallet and gold chains had been given to the victims relatives by hospital personnel, "who presumably had discovered them on [the victims] person." (Id. at p. 1014.) The court found that the prosecutors misconduct was not harmless beyond a reasonable doubt, and reversed. (Id. at p. 1017.)
Contrary to Morriss contention, there was no similar egregious conduct here on the part of the prosecutor. The claimed similarity is that the prosecutor in this case knew at the time of trial that, after the incident, Morris had tested negative for communicable diseases. Officer Bussard testified that he was tested for communicable diseases after the incident because he was concerned for his safety. He stated that he did not know whether or not Morris had any communicable diseases at the time of the incident. Unlike in Brown v. Borg, supra, 951 F.2d 1011, the prosecutor neither elicited testimony known to be false or argued facts known to be false.
The prosecutors argument, in contrast to that in Brown v. Borg, supra, 951 F.2d 1011, did no more than repeat evidence introduced without objection at trial. Morris has not demonstrated that any of Officer Bussards testimony was false, or that the prosecutor knew it was false. The prosecutors actions here were not "deceptive or reprehensible," but arguments based on admissible evidence which the trial court chose to curtail on relevancy grounds. We find no prosecutorial misconduct on these facts.
In regard to the prosecutors questioning which Morris now claims was misconduct, we note that Morris did not object that the questions constituted misconduct nor did he request an admonishment. "It is, of course, the general rule that a defendant cannot complain on appeal of misconduct by a prosecutor at trial unless in a timely fashion he made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]" (People v. Benson, supra, 52 Cal.3d at p. 794.) Moreover, while Morris claims that some of the testimony introduced was "outright false," he points to no particular statement made by Officer Bussard which was not true.
C. Constitutionality of section 243.1
Morris argues that his conviction under section 243.1 violated his constitutional rights to due process and equal protection, claiming that "the sentencing scheme under . . . section 243.1 is unconstitutionally arbitrary and/or unconstitutionally vague."
Morriss complaint is with the discretion given prosecutors to charge a battery against a correctional officer under one of three statutes. A prosecutor may charge a defendant under section 243.l, which provides: "When a battery is committed against the person of a custodial officer as defined in Section 831 of the Penal Code, and the person committing the offense knows or reasonably should know that the victim is a custodial officer engaged in the performance of his or her duties, and the custodial officer is engaged in the performance of his or her duties, the offense shall be punished by imprisonment in the state prison." A prosecutor may also charge battery against a correctional officer under either subdivision (b) or subdivision (c)(l) of section 243. Section 243, subdivision (b) and section 243.1 have identical elements, while section 243, subdivision (c)(1) requires, in addition, injury requiring medical treatment. Violation of section 243.1 is punishable as a felony, violation of section 243, subdivision (b) is a misdemeanor, and violation of section 243, subdivision (c)(1) is punishable as a "wobbler." (People v. Wilkinson (2004) 33 Cal.4th 821, 831.)
After briefing was complete in this case, the California Supreme Court resolved the equal protection issue in People v. Wilkinson, supra, 33 Cal.4th 821. The court held that "[b]ecause a rational basis exists for the statutory scheme pertaining to battery on a custodial officer, these statutes are not vulnerable to challenge under the equal protection clause. [Citation.]" (Id. at p. 841.)
Appellant also maintains that the statutory scheme violates his due process rights because "there is no way to determine whether a battery on a custodial officer would be classified as a misdemeanor . . . felony, or . . . a `wobbler. " "[I]t is established that due process requires a statute to be definite enough to provide (1) a standard of conduct for those whose activities are proscribed and (2) a standard for police enforcement and for ascertainment of guilt." (Burg v. Municipal Court (1983) 35 Cal.3d 257, 269.) The fact that the proscribed conduct here may be charged and punished in more than one way, however, does not render the statutory scheme unconstitutionally vague. It has long been held that a statutory scheme allowing prosecutors discretion in charging does not violate the due process clause. (United States v. Batchelder (1979) 442 U.S. 114, 125; see Davis v. Municipal Court (1988) 46 Cal.3d 64, 87.) Consequently, the statutory scheme pertaining to battery on a custodial officer does not violate Morriss constitutional rights to either due process or equal protection.
Morris also argues that cumulative errors compel reversal of his convictions. As in People v. Kipp, supra, 18 Cal.4th 349, "We have considered each of defendants claims on the merits and neither singly nor cumulatively do they establish prejudice . . . ." (Id. at p. 383.)
D. Sentencing Errors
1. Background
As previously noted, the trial court sentenced Morris to a total prison term in the underlying case of nine years. Included in that sentence was the upper term of three years on both the assault and battery convictions. The trial court imposed the upper terms based on its findings of three aggravating factors and no mitigating factors. The aggravating factors identified by the court were: "[l] The defendants prior convictions as an adult and sustained petitions in juvenile delinquency proceedings are numerous. [¶] [2] The defendant was on a grant of summary probation when this crime was committed. [¶] [3] [T]he defendants prior performance on probation and parole has been unsatisfactory." The court ordered the sentences for the assault and battery convictions to run concurrently. Morris admitted the prior strike conviction and three prior prison terms. The court imposed three one-year enhancements for the prior prison terms under section 667.5.
2. Multiple Punishments
The parties agree that the court erred in imposing concurrent sentences for the assault and battery convictions. Morris asserts, and the Attorney General agrees, that the offenses were part of an indivisible course of conduct and therefore sentence on one of the counts should be stayed under section 654.
Section 654 provides in part that "[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision." (§ 654, subd. (a).) " `The "act" which invokes section 654 may be a continuous " `course of conduct . . . comprising an indivisible transaction . . . ." [Citation.] "The divisibility of a course of conduct depends upon the intent and objective of the defendant. . . . [I]f the evidence discloses that a defendant entertained multiple criminal objectives which were independent of and not merely incidental to each other, the trial court may impose punishment for independent violations committed in pursuit of each objective even though the violations shared common acts or were parts of an otherwise indivisible course of conduct." [Citations.] [Citation.]" (People v. Nubla (1999) 74 Cal.App.4th 719, 730, quoting People v. Akins (1997) 56 Cal.App.4th 331, 338-339.)
The statutory bar against multiple punishments for the same act is subject to the requirement that a defendant "shall be punished under the provision that provides for the longest potential term of imprisonment." (§ 654, subd. (a).) Accordingly, because section 243.1 (battery against a custodial officer) provides for the longest potential term of imprisonment, we will stay execution of Morriss sentence for assault. (See §§ 241, 243; People v. Snow (2003) 105 Cal.App.4th 271, 282.)
3. Blakely-Cunningham-Black II Issues
In a supplemental brief filed prior to Morris I, Morris argues that the trial court violated his constitutional rights as interpreted in Blakely by sentencing him to aggravated terms for the assault and battery convictions. Specifically, Morris argues that both sentences are invalid because they were based upon factors not found by a jury to be true.
At the outset, we reject the Attorney Generals claim that any Blakely error is waived because Morris failed to object in the trial court. Because of the constitutional implications of the error at issue, we question whether the waiver doctrine applies at all. (See People v. Vera (1997) 15 Cal.4th 269, 276-277 [claims asserting deprivation of certain fundamental, constitutional rights not forfeited by failure to object]; In re Sheena K. (2007) 40 Cal.4th 875, 887 [pure issues of constitutional law not forfeited by failure to object].) Furthermore, there is a general exception to the rule where an objection would have been futile. (See People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648 and authority discussed.) We have no doubt that, at the time of the sentencing hearing in this case, an objection that the jury rather than the trial court must find aggravating facts would have been futile. (See § 1170, subd. (b); Cal. Rules of Court, rules 4.409, 4.420, 4.421.)
In any event, we have discretion to consider issues that have not been formally preserved for review. (See 6 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Reversible Error, § 36, p. 497.) Given that the purpose of the forfeiture doctrine is to "encourage a defendant to bring any errors to the trial courts attention so the court may correct or avoid errors . . . ." (People v. Marchand (2002) 98 Cal.App.4th 1056, 1060), we find it particularly inappropriate to invoke that doctrine here in light of the fact that Blakely was decided after Morris was sentenced. We thus turn to the merits of the Blakely argument.
Morris claims that the trial courts reliance upon three aggravating factors all involved subjective determinations which were required to be made by the jury, and were therefore improper under Blakely. Morris maintains the determinations that his prior convictions were "numerous," that his performance on probation was "unsatisfactory," and that he was on probation at the time the instant offenses were committed, are subjective ones which must be determined by a jury. He also argues that the court "improperly admitted the probation reports into evidence," and therefore erred in finding that he was on summary probation at the time the instant offenses were committed. The Attorney General maintains that all three factors on which the trial court relied were "based on the fact of [Morriss] prior convictions," and thus involved features of "recidivism" which do not implicate Blakely.
In Cunningham, the United States Supreme Court summarized Californias determinate sentencing law (DSL), and how it fit within the right-to-jury decisions that began with Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi) and culminated with Blakely: "Under Californias DSL, an upper term sentence may be imposed only when the trial judge finds an aggravating circumstance. . . . [A]ggravating circumstances depend on facts found discretely and solely by the judge. In accord with Blakely, therefore, the middle term prescribed in Californias statutes, not the upper term, is the relevant statutory maximum. [Citation.] . . . Because circumstances in aggravation are found by the judge, not the jury, and need only be established by a preponderance of the evidence, not beyond a reasonable doubt [citation], the DSL violates Apprendis bright-line rule: Except for a prior conviction, `any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. [Citation.]" (Cunningham, supra, 127 S.Ct. at p. 868.) "[O]ur decisions from Apprendi . . . point to the middle term specified in Californias statutes, not the upper term, as the relevant statutory maximum. Because the DSL authorizes the judge, not the jury, to find the facts permitting an upper term sentence, the system cannot withstand measurement against our Sixth Amendment precedent." (Id. at p. 871.)
The recent decisions in Black II and Sandoval have largely mooted the parties contentions. Following those decisions, the governing analysis need not be extended.
As Black II summarized: "[U]nder the line of high court decisions beginning with Apprendi . . . and culminating in Cunningham . . . the constitutional requirement of a jury trial and proof beyond a reasonable doubt applies only to a fact that is `legally essential to the punishment(Blakely, supra, at p. 313), that is, to `any fact that exposes a defendant to a greater potential sentence than is authorized by the jurys verdict alone. (Cunningham, supra, at p. 863.) . . . For this reason, we agree with the Attorney Generals contention that 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 . . . does not violate the defendants right to jury trial. . . . [¶] . . . [¶] regardless of whether the facts underlying those circumstances have been found to be true by a jury." (Black II, supra, __ Cal. 4th __ [2007 Cal. Lexis 7604, at *18-*19 & *20].) "Therefore, if one aggravating circumstance has been established in accordance with the constitutional requirements set forth in Blakely, the defendant is not `legally entitled to the middle term sentence, and the upper term sentence is the `statutory maximum. " (Id. at *21.)
In Sandoval, the court held: "The United States Supreme Court has recognized two exceptions to a defendants Sixth Amendment right to a jury trial on an aggravating fact that renders him or her eligible for a sentence above the statutory maximum. First, a fact admitted by the defendant may be used to increase his or her sentence beyond the maximum authorized by the jurys verdict. (Blakely, supra, 542 U.S. at p. 303.) Second, the right to jury trial and the requirement of proof beyond a reasonable doubt do not apply to the aggravating fact of a prior conviction. (See Apprendi, supra, 530 U.S. at p. 490; Almendarez-Torres v. Unitied States (1998) 523 U.S. 224, 239-244; Blakely, supra, at p. 301.)" (Sandoval, supra, __ Cal.4th ___, ___ [2007 Cal. Lexis 7607, at *13].)
Both of these exceptions are present here. Morris admitted that he had multiple prior felony convictions for enhanced sentence purposes under Penal Code sections 667, 667.5, and 1170.12. Under Black II, any one of those convictions made Morris eligible for imposition of an aggravated term. Any additional circumstances in aggravation found by the trial court are without constitutional significance. (Black II, supra, __ Cal.4th __, ___ [2007 Cal. Lexis 7604, at *19, *20].) Accordingly, there was no error in sentencing Morris to aggravated terms for the assault and battery convictions.
IV.
DISPOSITION
Our prior decision in Morris III is herby vacated. The judgment is modified to stay the sentence imposed for the assault conviction pursuant to Penal Code section 654. The judgment of conviction is affirmed in all other respects. The clerk of the superior court is directed to prepare and amended abstract of judgment reflecting the modification, and to forward a certified copy to the Department of Corrections and Rehabilitation. The petition for a writ of habeas corpus is denied.
We concur:
Kline, P.J.
Lambden, J.