Opinion
H044121
09-23-2019
THE PEOPLE, Plaintiff and Respondent, v. LUPERCIO VICTOR PLASCENCIA, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Santa Clara County Super. Ct. No. C1638193)
A jury convicted defendant of committing domestic violence on his girlfriend, and he was sentenced to a five-year prison term. He argues on appeal that the trial court made prejudicially erroneous evidentiary rulings and committed sentencing error. For the reasons stated here, we will affirm the judgment.
I. TRIAL COURT PROCEEDINGS
According to trial testimony, Jane Doe and defendant had been dating for about a year as of May 2016. Doe had secured temporary housing by renting space in the garage of a family friend. She and defendant had been living in the garage for about two weeks when Doe was seen at the emergency room twice within an 18-hour period. Doe sought treatment the morning of May 18, and according to medical records she told emergency room staff she had been attacked by a group of men. After discharge she returned home, and later that day went to her workplace to deliver a medical excuse to her manager. Doe appeared reserved and embarrassed as she told her manager she and her boyfriend had been jumped by three men. The manager observed cuts on Doe's hands, bruises and swelling on her face, and a purple eye.
Later that evening, Doe reached out to her landlord who lived in the main house next to the garage. Doe was crying, appeared scared, told the landlord that defendant had hit her and was destroying her things, and asked to use the phone. The landlord observed marks on Doe's neck and face, and bruising and swelling on her hands. Doe phoned her manager who described Doe as frightened and crying on the call. Doe told the manager that her boyfriend had brutally abused her, he was trying to kill her, and she needed help. The manager arrived and observed scratches on Doe's neck that were not present when she had seen Doe earlier that day. Doe related her boyfriend had caused the marks and she was in fear for her life. The manager took Doe to their workplace, called the police, and accompanied Doe to the emergency room by ambulance. Doe's landlord also called the police. Officers responded, photographed the garage which was in disarray, and arrested defendant.
Doe was admitted at the emergency room and told the treating doctor that her boyfriend had choked her, which was consistent with the abrasions on her neck. City of San Jose police officer Graeme Newton responded to the hospital, and Doe told him in a recorded interview that she and defendant had started arguing at 5:30 that morning when he arrived home. He threw her on the ground and she feared for her life. Her head was hurting so he drove her to the hospital, dropped her off, and picked her up. They went home, and after sleeping through the afternoon, she went to her workplace to deliver the doctor's note. Doe explained that she had lied at work when she was asked what had happened. She returned home, and defendant started "getting mad again" and "throwing things around." Defendant grabbed her neck and scratched her as he released his grip. Then he became "a little bit more crazy," and started "throw[ing] a bunch of big stuff around." Then she went to the house to use the landlord's phone. Doe told Officer Newsom she was scared, defendant had broken her cell phone, and she had tried very hard to calm him down. Doe declined an emergency restraining order, volunteering "[t]his was the only time I was fearing [for] my life." She was discharged, and Officer Newton drove her to her father's house.
After a preliminary hearing in which Doe recanted her statements that defendant has assaulted her, defendant was held to answer on charges of inflicting corporal injury on a cohabitant within seven years of a prior conviction for the same offense (Pen. Code, § 273.5, subds. (a), (f)(1); count 1), and resisting an officer (Pen. Code, § 148, subd. (a)(1); count 2, a misdemeanor). The information alleged defendant had served a prison term for domestic violence within the meaning of Penal Code section 667.5, subdivision (b). The misdemeanor Count 2 was dismissed before trial, and defendant admitted both the prior domestic violence conviction and the associated prison term.
Trial was held in September 2016. Doe, her landlord, her manager, the night-shift emergency room doctor, and Officer Newton testified. A redacted version of Doe's interview with Officer Newton and two post-arrest phone conversations between defendant and Doe were played for the jury.
Doe testified that she was four months pregnant with defendant's child, she "love[d] him to death," and he did not cause her injuries. She testified that her injuries were caused by "three girls" who assaulted her the night before defendant was arrested, sometime after midnight as she was leaving a friend's house walking to her car. She did not know the girls and she wasn't sure why she was assaulted. She did not call 911 because she did not like police officers. Instead, she called defendant who was groggy and mad she had snuck out. She drove home, and she and defendant started arguing, which continued until about 5 a.m. when she "stormed out" of the garage and defendant followed her. That evening defendant got mad again, and at some point he started throwing things.
Doe testified that she lied to her landlord because she did not want to look bad; she did not want her landlord to think strangers were targeting her or she was bringing trouble to the house. She did not tell her manager she had been assaulted by three girls when she brought a doctor's note to her workplace because she did not want her employer to consider her someone's target. To deflect attention from herself, she said she and defendant had been attacked by men. She later told her manager that defendant had hit her because she needed a reason to ask her manager to pick her up from the house, and it did not occur to her to explain that she did not want to be around defendant who was frustrated and throwing things. She told Officer Newton and the doctor that defendant had caused all her injuries "to keep my story straight." She lied to Officer Newton who "kind of kept pushing me" to talk because she "just wanted him to go away, but it seemed like he wasn't." And she lied to the doctor because Officer Newton was in the room. She never clarified the situation to anyone "because I had already dug myself in a hole so deep, that I couldn't get myself out."
During Doe's direct examination, the prosecutor played recordings of two post-arrest phone calls defendant placed to Doe from jail. The first call was on May 20. Defendant asked Doe on that call, "Did you tell the cops that I hit you?" Doe said, "No, but my manager did." Defendant then asked Doe, "I need you to help me fix all of that. Okay?" Doe responded, "I told them I'm not pressing charges," and she asked defendant what he wanted her to do. He said "If you can just do whatever you have to do, the only charges that I have right now is domestic violence, that's you, right? But they're saying that I hit you, so I was like, well, if you didn't say that I hit you, because I remember taking you to the hospital that morning, and you said you got jumped, and then... ." Doe interrupted: "But later, Victor, my manager called and said that you had hit me. [¶] And I even had to talk to the cops, and I had to say the truth." Defendant responded, "No you didn't, you didn't, you didn't." Doe told defendant that she was not going to leave him alone "throughout this whole process," but she needed "to see a big, big fucking change" before she would go back to him.
The other call was placed on May 22. In that call Doe said she had "hit up Cathy," when defendant asked whether she had done what he had asked her to do. Defendant said he had "talked to Gordys" who said, "that Cathy's saying that somebody else did it, ... that she was cheating on him and shit like that." Defendant asked Doe what she had told the police, and she said, "I told them the same thing ... that we were arguing because [] I had cheated on you before." Defendant followed with, "and you told the cops that I hit you?" and he asked whether they had taken pictures. Doe answered yes to both questions, defendant asked "You're gonna fix this tomorrow?" and Doe said "mhmm."
On cross-examination, Doe testified that both she and defendant had cheated during their relationship. Doe had caught defendant in a car with another woman a couple of weeks before May 18 and Doe punched her. The woman was a stranger, and Doe thought she may have been one of her female attackers.
Doe said she felt pressured to give certain answers to Officer Newton because he was an authority figure. At the beginning of the interview she tried not to answer his questions, and she told him more than once that she did not want to talk about her injuries. But he told her " '[defendant]'s going to jail for this' "; " 'we know that' "; " 'He's eventually going to kill you' "; and "the police are going to investigate no matter what." She testified that she lied when she told him some of the injuries happened in the morning and some at night—they all happened at the same time; she lied to her manager about being attacked by men because she worried about her work reputation; and she lied to her landlord so she would not be blamed for the noise. Doe explained Defendant did not hit her or throw anything at her when he was acting erratically in the garage, and at the time she was upset but not afraid of him. The only reason she called her manager instead of someone else was because she did not have her phone and her manager's card was in her pocket. She lied to her manager later because she "was trying to explain, like why I would be calling her again, like, way later," and to be consistent with what she had told her landlord. Doe did not ask her manager to call 911. She felt pressured because the manager had confided that she herself had been hit before; Doe did not know how she would get herself "out of it" because she felt she could not then tell her the truth.
Doe was cross-examined about two other calls she received from defendant on May 20. In the first of those calls, she said "I told you not to go out with those girls and look at what they did to me. And that's why I had to put you in there because you wouldn't listen." She also said, "you are not going to be in there for long if I just tell them the real truth."
In the other call she said she knew she had lied to her employer. She also said, "Victor, you are not going to be in there for long"; "I didn't want you to go in there for hella long. I was fucking mad at you"; "I'm going to testify [] the right thing"; and "Obviously you don't care, Victor, because you went out with other girls and I had to end up fighting somebody." She told defendant, "But it was because, fuck [dude], like, I was fucking mad at you. You fucking wanted to go cheat on me. That's what you deserved to go to jail for it," and "I am just like, fuck, now I got to go tell them it was a lie."
Explaining what she meant when she was talking to defendant on the phone, she testified that the "big change" was not a reference to defendant hitting or abusing her but a reference to choices he could make to better his own life. When she said "look at what they did to me," she was referring to the injuries she had sustained on May 18. When she said she knew she had lied to her employer she meant she had lied when she identified defendant as her assailant. When she said she had to tell "the truth" to the police in the first conversation, that was to keep defendant in jail. And in the second conversation when she said "you are not going to be in there for long if I just tell them the real truth," the truth meant something that would get him out of jail sooner. Doe testified on redirect examination that she obtained copies of her medical records and had discussed them with defendant.
Defendant presented no evidence. Counsel argued that the prosecution had not met its burden to prove the case beyond a reasonable doubt because no investigation was undertaken "to eliminate, confirm, figure out" whether Doe's version of events was true. The jury returned a guilty verdict, and defendant was sentenced to an aggregate term of five years, consisting of the middle term of four years, plus one year for the prison prior.
II. DISCUSSION
A. DEFENDANT'S MENTAL HEALTH AND MENTAL HEALTH SERVICES
The trial court granted the prosecution's in limine motion to exclude references to defendant's mental health and access to mental health services as substantially more prejudicial than probative because defendant's mental health was not relevant to the case, the jury could be misled and prejudiced (potentially against either party) by mental health issues, and presentation of that evidence would consume too much time. Over defendant's objection, the court redacted from the May 20 phone conversation Doe's statement to defendant, "I want you out. But I want you to get help ... I need you to be on medication." The court denied defendant's motion under the rule of completeness (Evid. Code, § 356) to admit recordings of the additional calls placed to Doe on May 20. It excluded certain statements Officer Newton made during his interview with Doe urging Doe to cooperate so that defendant would receive services while in custody such as anger management treatment, psychiatric help, and counseling.
Recorded Jail Calls
Defendant argues that the trial court ignored the rule of completeness when it redacted the first May 20 call and excluded recordings of the two calls that followed. According to defendant, the excised content in the first call (Doe telling defendant he needed to be on medication) showed that the "big change" Doe referenced in that call related to medication, not domestic violence. He also argues that statements made in the later calls showed Doe had lied about defendant injuring her (not about being assaulted by strangers) because she was mad at him; showed that the "real truth" she spoke of on the May 22 call was a reference to the fight she had with three girls; and showed that by telling Doe to "fix" the situation, defendant was asking Doe not to lie but to be truthful.
In the second call placed two hours after the first call, Doe said: "I told you not to go out with those girls and look at what they did to me. And that's why I had to put you in there cause you wouldn't listen." She also said "You have to get your life completely straight. You need to be on medication"; "I thought I could just get you to go for a day, so you could know what I could do to you"; "Now I have to tell them, you know"; and "you're not going to be in there for long if I just tell them the real truth."
In the third call placed about 30 minutes after the second call ended, Doe said "I'm gonna testify the right thing. I didn't want you to go in there for hella long. I was fucking mad at you"; "You gotta get with your meds"; "If you wanna be back with me, you have to be on medication"; "You're gonna get out soon. As soon as I let them know that I was just lying"; "Because you went out with other girls ... I had to end up fighting somebody"; "I need you to fucking be on medication"; "I knew what I told my job. I knew that I lied to them and told them it was you. But it was because, fuck dude, like ... I was fucking mad at you. You fucking wanted to go cheat on me. That's what you deserved to go to jail for it. ... and now I'm just like fuck, now I gotta go tell them that it was a lie. But I'll only do that, I'll only do that if ... you tell me tell me right now, you're gonna be on medication and you're gonna go to the doctor and you're gonna tell them that you want an evaluation"; and "You need to tell them that you're [5150] and that you're bipolar and that you need medicine for that. And you need to tell them in there. If you tell them in there [], the day they call me to [] investigate, I'll [] let them know that I lied."
The court did not abuse its discretion in ruling that the three May 20 calls were separate, independent events not encompassed by the rule of completeness in Evidence Code section 356. The rule is intended to " ' "prevent[] the use of selected aspects of a conversation, act, declaration, or writing so as to create a misleading impression on the subjects addressed." ' " (People v. Brooks (2017) 3 Cal.5th 1, 49.) " 'In the event a statement admitted in evidence constitutes part of a conversation or correspondence, the opponent is entitled to have placed in evidence all that was said or written by or to the declarant in the course of such conversation or correspondence, provided the other statements have some bearing upon, or connection with, the admission or declaration in evidence.' " (People v. Hamilton (1989) 48 Cal.3d 1142, 1174.) Statements separated by a series of events are not part of the same conversation. (People v. Barrick (1982) 33 Cal.3d 115, 131.)
Evidence Code section 356 provides, "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence."
In the first call, defendant and Doe were given a one-minute warning that the call would end, and during that time they concluded their conversation. Defendant asked Doe if he could call her "one more time," and she told him to wait 90 minutes or two hours because her family did not support their communicating. Similarly, a one-minute warning was given near the end of the second call, and that conversation concluded with Doe telling defendant she would talk to him "later" because she was shopping with her sister. Ninety minutes passed between the end of the first call and the start of the second call, and 30 minutes elapsed between the end of the second call and the start of the third call. Thus, the conversations were clearly demarcated by closure and intervening events.
Nor was the trial court's ruling under Evidence Code section 352 an abuse of discretion. Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." The ruling as it related to the phone calls was narrowly directed at Doe's references to defendant's mental health. The court allowed defendant to cross-examine Doe regarding the other aspects of her multiple conversations with defendant, and Doe underwent exhaustive cross-examination in which she discussed all three May 20 calls. Defendant argues the probative value of the evidence far exceeded its potential for prejudice. But defendant had tested positive for cocaine and phenelzine when he was arrested, and the trial court noted that any discussion of medications would necessarily include evidence related to that test result. Evidence about defendant's mental health had the potential to consume undue time and confuse the issues.
Recorded Interview
Doe's statements to police were admitted in evidence through Officer Newton, who was the prosecution's last witness. During Doe's cross-examination, defense counsel had asked the court to revisit its rulings regarding the scope of that interview. Counsel acknowledged the mental health limitation, but wanted to buttress Doe's testimony about feeling pressured in the interview by asking Officer Newton about his comments that defendant would find another person to victimize, and could be prosecuted without Doe's cooperation because " '[w]e know what happened.' " The court denied the request, reasoning that discussion about punishment or consequences, although probative about whether Doe felt pressured in her interview with Officer Newton, presented a substantial potential for jury confusion and prejudice against defendant.
Defendant argues the evidence should not have been excluded under Evidence Code section 352 and the rule of completeness in Evidence Code section 356 in light of his right "to present all relevant evidence of significant probative value to his defense." (People v. Burrell-Hart (1987) 192 Cal.App.3d 593, 599.) He acknowledges the excluded evidence was prejudicial because "it dealt with [defendant's] mental health condition and his potential punishment should he be convicted." But defendant urges it was highly relevant to his theory that Doe had a motive to cooperate with and lie to Officer Newton because he had implied to her that defendant would receive help and psychiatric treatment if he were convicted.
The statements defendant sought to introduce were made by Officer Newton approximately 15 minutes into the interview. By that time Doe had given him a full accounting of the day from 5:30 a.m. through her second trip to the hospital. She had explained she never wanted to involve police; had confirmed that defendant was "going to jail no matter what"; and had asked whether her statements would be "documented" and "used against him." In that context, the excluded comments of Officer Newton were not significantly probative of the defense theory that Doe's statements were the result of undue pressure. The jury was made aware of Doe's initial reluctance to speak to the officer, and Doe was fully cross-examined on the pressure she felt during the interview. A reasonable jury would not have received a significantly different impression of Doe's credibility had defendant been permitted to cross examine either her or Officer Newton about the excluded statements. (People v. Frye (1998) 18 Cal.4th 894, 946 [trial court retains wide latitude to restrict cross-examination; Sixth Amendment right to cross-examine witness is not violated "unless the defendant can show that the prohibited cross-examination would have produced 'a significantly different impression of [the witnesses'] credibility' "].) The trial court's ruling was neither an abuse of discretion nor a violation of defendant's constitutional rights.
B. PHYSICAL THREATS
Doe was asked on cross-examination whether she had ever threatened violence to someone before May 18, and the prosecutor objected on hearsay and relevance grounds. Defendant proffered a February 2, 2016 exchange from Doe's Facebook page in which a woman named Kathy appeared to taunt Doe by posting that she was seeing defendant. Doe responded on Facebook saying, " 'I can knock your ass TF out,' " which was met with the retort " 'LOL. Come knock me out. It will be your death wish.' " Defendant argued in the trial court that the credibility of Doe's trial testimony would be bolstered by evidence that she had threatened violence to someone who had motive and opportunity to retaliate, and to show another person's motive to assault her. The court found the Facebook exchange not relevant because it occurred months before May 18 and no evidence connected Doe's alleged assailants to the woman writing the posts.
Defendant argues the Facebook evidence was relevant and admissible because it showed another woman having physically threatened Doe, tending to prove that Doe had been assaulted by three women as she testified, and that Doe was testifying truthfully. Here again, he contends the evidentiary error deprived him of his constitutional right to present a complete defense.
Third party culpability evidence is relevant when it links the third party to the crime either directly or circumstantially. (People v. Casares (2016) 62 Cal.4th 808, 830.) "[T]o be admissible, evidence of the culpability of a third party offered by a defendant to demonstrate that a reasonable doubt exists concerning his or her guilt, must link the third person either directly or circumstantially to the actual perpetration of the crime. In assessing an offer of proof relating to such evidence, the court must decide whether the evidence could raise a reasonable doubt as to defendant's guilt and whether it is substantially more prejudicial than probative under Evidence Code section 352." (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) Excluding evidence which leads to only speculative inferences is error. (People v. Babbitt (1988) 45 Cal.3d 666, 684.)
The trial court did not abuse its discretion in excluding the Facebook evidence. Doe had testified that she did not know the three women who attacked her. Doe did not testify (nor was it proffered that she believed) that the author of the Facebook posts was her assailant. The Facebook exchange occurred over three months before May 18, without any evidence of a continuing threat by the author. The trial court could reasonably conclude that any connection between the exchange and the purported stranger attack on Doe was speculative. The right to present a defense includes "the right to present all relevant evidence of significant probative value." (People v. Cunningham (2001) 25 Cal.4th 926, 999.) Absent a nexus between the Facebook exchange and the purported May 18 attack on Doe by three unknown females, the evidence lacked significant probative value. The value of the evidence was further diminished by Doe testifying that she had caught defendant cheating with another woman two weeks before May 18; she did not know that woman; she punched that woman in the face; and she thought one of the three who attacked her might have been that woman.
C. CUMULATIVE PREJUDICE
Defendant argues that the cumulative impact of the asserted errors deprived him of due process and a fair trial. Having found no trial error, his argument necessarily fails. D. SENTENCING
For ease of reference, remaining statutory references are to the Penal Code unless otherwise stated. We refer to section 273.5, subdivision (f) as section 273.5(f), and we use the same abbreviated format for other subdivision citations.
Defendant was convicted of recidivist domestic violence under section 273.5(f). Relying on People v. Jones (1993) 5 Cal.4th 1142 (Jones), he argues that the trial court contravened the proscription against "dual use of facts" by using his prior conviction as the basis for both recidivist sentencing and a one-year prior prison term enhancement under section 667.5(b). The defendant in Jones had a prior conviction for an aggravated form of kidnapping. As a result of that conviction, his felony sentence was enhanced by one year under section 667.5(b) for the prison term served for the kidnapping, and by five years under section 667(a) because the kidnapping conviction was a serious felony. (Jones, at pp. 1145-1146.) Our Supreme Court addressed whether in enacting the prior serious felony sentencing enhancement as part of Proposition 8, the electorate intended that the enhancement be imposed in addition to the prior prison term enhancement enacted earlier as part of the Determinate Sentencing Act. (Jones, at pp. 1147, 1149.) The court construed language in former section 667(b) precluding the serious felony enhancement "when the punishment imposed under other provisions of law would result in a longer term of imprisonment" to mean "when multiple statutory enhancement provisions are available for the same prior offense, one of which is a section 667 enhancement, the greatest enhancement, but only that one, will apply." (Jones, at p. 1150.) The court in Jones also viewed the prior prison term enhancement under section 667.5(b) as a subset of the prior serious felony enhancement under section 667: "Many felonies serious enough to require incarceration, however, are likely to be encapsulated in section 1192.7, subdivision (c), and therefore will subject the recidivist offender to the five-year enhancement of section 667, subdivision (a), on the commission of a new and serious felony." (Jones, at p. 1150.)
The sentencing range for a first domestic violence conviction is up to one year in county jail, or a two-, three-, or four-year felony term. (§ 273.5(a).) If the conviction is within seven years of a previous domestic violence conviction, the sentencing range is up to one year in county jail, or a two-, four-, or five-year felony term. (§ 273.5(f)(1).)
Former section 667(b) provided: "This section shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment. There is no requirement of prior incarceration or commitment for this section to apply." That provision was recast in 1994 as section 667(a)(2). (Stats. 1994, c. 12, § 1, p. 72.)
Defendant's reliance on Jones is misplaced because his prior conviction is not the basis for multiple, competing sentencing enhancements. "An enhancement is an additional term of imprisonment added to the base term." (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1517; Cal. Rules of Court, rule 4-405(3).) A base term is "the determinate term ... selected from among the three possible terms prescribed by statute." (Cal. Rules of Court, rule 4.405(2).) Section 273.5(f) is a recidivism provision increasing the base term for repeat offenders. As such, it is not an enhancement. (White Eagle, at p. 1517 [section 666 and section 667(e) are not enhancements; same prior conviction may be used to elevate petty theft to a felony under section 666, to invoke recidivism punishment under section 667(e), and to impose a prior prison term enhancement under section 667.5(b)].)
In People v. Coronado (1995) 12 Cal.4th 145, the Supreme Court addressed whether a prior DUI conviction could serve both to elevate a DUI to a felony under the Vehicle Code's recidivism statute for DUI offenses, and to enhance the sentence under section 667.5(b). Rejecting the argument that the prior conviction could not be used for both purposes, the Supreme Court distinguished Jones as addressing whether "multiple statutory enhancement provisions are available for the same prior offense," when one of the enhancements is for a prior serious felony conviction under section 667. (Coronado, at p. 155.)
Vehicle Code former section 23175 provided that a person convicted of DUI with three prior DUI convictions within seven years of the current conviction was subject to a misdemeanor or felony sentence. Recast in 1999 as section 23550(a), the current sentencing scheme provides for a misdemeanor or felony sentence if the offender has been convicted of three DUIs within 10 years of the current conviction.
The Coronado court also rejected the argument, based on Jones, that the limitation on the multiple use of enhancements found in section 667 applied to the section 667.5(b) enhancement in that case. (Coronado, supra, 12 Cal.4th at p. 155.) While the court in Jones viewed the prior prison term enhancement under section 667.5(b) as a subset of the prior serious felony enhancement under section 667, the court in Coronado did not find the same relationship between section 667.5(b) and the Vehicle Code recidivism statute. Not all convictions that result in prison terms within the meaning of section 667.5(b) qualify to elevate a fourth DUI to a felony, nor do convictions that serve to elevate a DUI to a felony necessarily result in a prior prison term. (Coronado, at pp. 155-156.) We find Coronado dispositive of defendant's sentencing challenge. Even if the limiting language in section 667 were disregarded as a basis for the Jones decision and we were to apply Jones's "subset" analysis here, we would distinguish section 273.5(f) from section 667(a) in the same way the Coronado court distinguished the Vehicle Code recidivism statute from section 667(a): Though a prior domestic violence conviction may serve to elevate the base term for a recidivist offender under section 273.5(f), the conviction does not necessarily result in a prison term which would support a section 667.5(b) enhancement. Likewise, a prior conviction may result in a prison term without triggering recidivist sentencing.
Defendant attempts to distinguish Coronado as involving a statute elevating an offense from a misdemeanor to a felony in which the "prohibited dual use" argument was not made. We find no meaningful distinction between a statute which elevates a misdemeanor to a felony versus one which increases the base term for a felony sentence. Both statutes expose the offender to a greater sentence for recidivist conduct, and neither comes within the definition of an enhancement. Further, a "dual use" argument was presented and rejected in Coronado: "Defendant seems to additionally argue that the 'dual use' of his prior conviction to elevate his current offense to a felony and to enhance his sentence is prohibited. As we have previously recognized, however, '[o]nly two express "dual use" prohibitions appear in the Determinate Sentencing Act. Section 1170, subdivision (b), prohibits imposition of an upper term based upon "the fact of any enhancement upon which sentence is imposed [under section 667.5]." California Rules of Court, rule 425(b), states that a fact that is an element of the crime, or that is used to impose an upper term or otherwise enhance a defendant's prison sentence, may not be used also to justify imposition of a consecutive rather than a concurrent sentence.' [Citation.] The facts of the present case do not fit within the parameters of those two dual-use prohibitions." (Coronado, at p. 159, fn. 10.)
Defendant argues that the absence of language in section 273.5(f) expressly sanctioning elevated recidivism punishment in addition to punishment under section 667.5(b) evinces a legislative intent not to allow the prior conviction to be used as a basis for a prior prison term enhancement. But there was also no such language in the DUI recidivism statute, and the Supreme Court in Coronado gleaned no limitation from absent language. To the contrary, the court found no basis to infer a legislative purpose prohibiting dual use of the prior conviction when the recidivism statute "reflects no legislative purpose to disallow additional punishment when a qualifying prior conviction resulted in a prison term." (Coronado, supra, 12 Cal.4th at p. 155.)
III. DISPOSITION
The judgment is affirmed.
/s/_________
Grover, J.
I CONCUR:
/s/_________
Elia, Acting P.J.
I CONCUR IN THE JUDGMENT ONLY:
/s/_________ Mihara, J.