Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. VCR 179495
McGuiness, P.J.
Following a jury trial, appellant Tamarcus Williams was convicted of voluntary manslaughter (Pen. Code, § 192, subd. (a)) with a sentence enhancement for the use of a firearm during commission of the offense (§ 12022.5, subd. (a)(1)). On appeal, he contends the trial court erred by failing to instruct the jury he had the right to use deadly force in self-defense to protect against “being maimed.” He also argues that, under Cunningham v. California (2007) 549 U.S. ___ [127 S.Ct. 856] (Cunningham), the trial court erred by imposing the upper terms on his conviction and the associated firearm use sentence enhancement. We affirm.
All further statutory references are to the Penal Code unless otherwise specified.
Factual and Procedural Background
On July 14, 2005, appellant shot Reginald Gross, killing him. Appellant claimed he was at one time Gross’s friend. Things changed, however, after a May 2005 encounter between Gross and appellant. On that occasion, appellant and his cousin encountered Gross, Gross’s brother, and a group of about 15 Samoans on the street in Vallejo. According to appellant, Gross “hung around” with the Samoans. Gross and the Samoans formed a circle around appellant and his cousin and began hitting and kicking them. The incident lasted about three to five minutes, until appellant and his cousin were able to run away.
On one occasion following the May 2005 incident, appellant saw Gross riding a bicycle on the street and told him, “I should beat you up for jumping me.” Gross responded, “Next time I see you, I’m going to kill you.” On subsequent occasions, Gross visited a house where appellant’s children lived, and the pair encountered each other near a 99 Cent Store, where Gross told appellant, “I’ll beat your ass, Nigga. I’m going to shoot your house up.” After appellant told Gross, “You don’t know where I live at, ” Gross blurted out the address where appellant’s mother lived. On July 4, 2005, appellant told a female friend of Gross’s that Gross “was gonna git gat.” The woman told a friend she feared for her life and for Gross’s life because appellant said he was going to kill Gross. Appellant admitted obtaining a gun, a .38 special “snub nose, ” to protect himself against Gross.
On the date Gross was killed, appellant carried the gun with him to Benicia Road in Vallejo, where he knew he might encounter Gross and his Samoan associates. Appellant met Gross on the street, and the two began fighting while several onlookers watched. A friend of Gross’s described the fight as one in which appellant “was getting whooped.” During the fight, Gross removed his belt and wrapped it around his hand. According to appellant, Gross used it like a whip, hitting appellant on the shoulder with the buckle end of the belt. Appellant believed the buckle came within six inches of his face at one point. When it appeared to appellant that Gross was reaching for another weapon, appellant pulled out his gun and shot him in the head from a distance of about five feet. Appellant gave no warning before shooting Gross between the eyes. The shot killed him almost immediately. Appellant claimed he was worried about being hit with the buckle end of Gross’s belt, and he was concerned that Gross might be reaching for an even more lethal weapon. Appellant ran from the scene. Gross was unarmed, and according to at least one eyewitness, he did not reach into his pockets before being shot by appellant.
According to at least one person who witnessed the fight, Gross pulled off his belt but did not get a chance to use it before being shot by appellant.
In a one-count information filed October 24, 2005, the Solano County District Attorney charged appellant with murder, in violation of section 187, subdivision (a). It was further alleged that appellant had discharged a handgun during the commission of the offense. (§§ 12022.5, subd. (a)(1), 12022.53, subds. (b), (c) & (d).)
Trial was by jury. The jury voted to acquit appellant of first and second degree murder but found him guilty of voluntary manslaughter (§ 192, subd. (a)). The jury also found true the allegation that appellant had personally used a firearm during the commission of the offense (§ 12022.5, subd. (a)(1)).
The trial court imposed a total sentence of 21 years in state prison, composed of the upper term of 11 years for the voluntary manslaughter conviction (§ 192, subd. (a)) with a consecutive upper term of 10 years for the firearm use enhancement (§ 12022.5, subd. (a)(1)). Appellant filed a timely notice of appeal.
Discussion
1. Instructional error
Appellant contends the trial court committed reversible error by omitting mention of “being maimed” in the self-defense instruction, thus improperly limiting the instruction so that the defense applied only if appellant reasonably feared death or great bodily injury. The thrust of appellant’s argument is that the self-defense instruction should have specified the killing was justified if appellant reasonably believed he was in imminent danger of being maimed by Gross’s belt. As explained below, because the crime of mayhem (i.e., “being maimed”) necessarily requires the infliction of great bodily injury, we find no error in the instruction as given.
CALCRIM No. 505 concerns the right to use deadly force in self-defense or in the defense of another. In relevant part, the instruction provides that a defendant acted in lawful self-defense if, in addition to other requirements, the “defendant reasonably believed that [he or she] was in imminent danger of being killed or suffering great bodily injury . . . .” (CALCRIM No. 505, supra, p. 177.) Immediately following the quoted passage from CALCRIM No. 505 is the following language enclosed by brackets: “or was in imminent danger of being (raped/maimed/robbed/_____ <insert other forcible or atrocious crime>).” According to the bench notes accompanying CALCRIM No. 505, if the defendant asserts he or she killed the victim while resisting a “forcible and atrocious crime, ” the court should include the bracketed language and identify the forcible and atrocious crime the defendant claims to have been resisting. In all other cases involving the threat of death or great bodily injury, the bracketed language should be omitted. (Bench notes to CALCRIM No. 505, supra, p. 179.)
In order to support a self-defense theory, a defendant must also establish that he or she reasonably believed the immediate use of deadly force was necessary and that he or she used no more force than necessary to defend against the danger. (CALCRIM No. 505 (Fall 2006 ed.) p. 177.)
Here, appellant’s trial counsel submitted a proposed version of CALCRIM No. 505 providing in part that a defendant acted in lawful self-defense if “[t]he defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury or was in imminent danger of being maimed.” (Italics added.) In other words, appellant sought to include the bracketed language from CALCRIM No. 505 identifying a specific forcible and atrocious crime he claimed to be resisting when he killed the victim. For reasons not apparent from the record on appeal, the trial court agreed to give CALCRIM No. 505 but left out the passage referring to the defendant reasonably believing he was in “imminent danger of being maimed.”
Section 197, subdivision (1) provides that a homicide is justified under the law if committed while “resisting any attempt to murder any person, or to commit a felony, or to do some great bodily injury upon any person . . . .” In People v. Ceballos (1974) 12 Cal.3d 470, 477-478, our Supreme Court stated that although “section 197 appears to permit killing to prevent any ‘felony, ’ ” a literal reading of that language would be undesirable. The court pointed out that under the rule developed at common law the use of deadly force to prevent a felony is justified “only if the offense was a forcible and atrocious crime. [Citations.]” (Ceballos, supra, 12 Cal.3d at p. 478.) As examples of forcible and atrocious crimes, the Ceballos court cited “murder, mayhem, rape and robbery, ” explaining that such crimes by their nature threaten, or are presumed to threaten, human life or great harm to one’s personal safety. (Ibid.) The court explained that when a crime does not “reasonably create a fear of great bodily harm . . . there is no cause of the exaction of a human life.” (Ibid.) Thus, as clarified in Ceballos, a defendant is justified in using deadly force to prevent a felony only if the commission of that felony poses the threat of death or great bodily injury. (Ceballos, supra, 12 Cal.3d at p. 478.)
The bench notes following CALCRIM No. 505 cite Ceballos for the proposition that “[f]orcible and atrocious crimes are generally those crimes whose character and manner reasonably create a fear of death or serious bodily injury.” (Bench notes to CALCRIM No. 505, supra, p. 179.)
The crime of mayhem “cannot be committed without the infliction of great bodily injury.” (People v. Brown (2001) 91 Cal.App.4th 256, 272.) Great bodily injury is an element of the crime. (People v. Pitts (1990) 223 Cal.App.3d 1547, 1559-1560.) Appellant contends it is “misleading” to say that a conviction for mayhem requires great bodily injury, claiming that “any kind of injury to the face” that causes permanent scarring qualifies as mayhem. We disagree. One of the cases on which appellant relies stands for the proposition that a disfiguring facial injury may support a conviction for mayhem. (See People v. Newble (1981) 120 Cal.App.3d 444, 453.) That case does not establish one may commit mayhem by inflicting any kind of injury to the face that causes a scar. To the contrary, the court in People v. Newble agreed that “ ‘not every visible scarring wound can be said to constitute the felony crime of mayhem.’ ” (Id. at p. 453.) Appellant also relies on People v. Ausbie (2004) 123 Cal.App.4th 855, 860-861, disapproved on another ground in People v. Reed (2006) 38 Cal.4th 1224, 1228, which he cites for the proposition that “[t]he modern rationale for the crime of mayhem in California is to protect the integrity of the victim’s person from disfigurement. [Citations.]” The quoted passage does not support appellant’s position that the crime of mayhem may be committed by inflicting any kind of injury to the face that causes permanent scarring. Moreover, the court went on to point out that a disfiguring injury constitutes great bodily injury, citing People v. Brown, supra, 91 Cal.App.4th at p. 272. (People v. Ausbie, supra, 123 Cal.App.4th at p. 862.) In short, one cannot be “maimed” without suffering great bodily injury.
Mayhem is defined in section 203 as follows: “Every person who unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem.”
Here, the court correctly instructed the jury on appellant’s right to use force to defend himself against the threat of death or great bodily injury. The court also offered a definition of great bodily injury, describing it as a “significant or substantial physical injury” that is “greater than a minor or moderate harm.” It was unnecessary to specify that appellant would have been justified in defending against mayhem, a crime requiring the infliction of great bodily injury. “It is not error for a trial court to reject instructions requested when the substance of the instruction is covered by those instructions given. [Citations.]” (People v. Rice (1970) 10 Cal.App.3d 730, 744.) The instructions given fully covered the point that appellant would have been justified in killing the victim if he reasonably believed he was in imminent danger of suffering great bodily injury, including being maimed.
Even if we were to conclude the trial court erred by omitting any reference to “being maimed” in the self-defense instruction, the error was plainly harmless. Appellant’s trial counsel was permitted to, and did, argue to the jury that appellant shot Gross in self-defense to resist against being hit in the face by the victim’s belt. Defense counsel emphasized that the belt “could have knocked out any eye, ” telling the jury, “There’s lots of great bodily injury.” Therefore, the trial court’s failure to instruct the jury that appellant had a right to use deadly force to prevent against being maimed did not preclude appellant from presenting his theory of the case to the jury or prevent the jury from considering it with a full understanding of the law.
The parties do not discuss whether instructional error should be evaluated under the standard of Chapman v. California (1967) 386 U.S. 18, 24, or People v. Watson (1956) 46 Cal.2d 818, 836. We need not resolve the issue because we conclude any error here was harmless beyond a reasonable doubt.
2. Cunningham error
Appellant contends the trial court erred by imposing the upper terms on the manslaughter conviction and the firearm use enhancement based on facts neither admitted by appellant nor found to be true beyond a reasonable doubt by a jury, relying on Cunningham, supra, 549 U.S. ___ [127 S.Ct. 856]. We conclude there was no error.
The United States Supreme Court had not yet decided Cunningham when appellant filed his opening brief. Appellant nevertheless raised the issue, anticipating the Cunningham decision and relying on Blakely v. Washington (2004) 542 U.S. 296. Because Cunningham was decided before the People filed a responsive brief, both the People and appellant have addressed the application of Cunningham to the facts of this case.
In Cunningham, the United States Supreme Court held that California’s Determinate Sentencing Law violates a defendant’s right to jury trial to the extent it permits a trial court to impose an upper term sentence based on aggravating factors found by the court instead of a jury. (Cunningham, supra, 127 S.Ct. at pp. 860, 868-871.) The Cunningham court expressly disapproved of our Supreme Court’s decision in People v. Black (2005) 35 Cal.4th 1238 (Black I). (Cunningham, supra, 127 S.Ct. at p. 871.) In light of Cunningham, the United States Supreme Court vacated the judgment in Black I and remanded the matter to the California Supreme Court. (See Black v. California (2007) 127 S.Ct. 1210.) Upon remand, our Supreme Court decided People v. Black (2007) 41 Cal.4th 799 (Black II), in which it held that “imposition of the upper term does not infringe upon the defendant’s constitutional right to jury trial so long as one legally sufficient aggravating circumstance has been found to exist by the jury, has been admitted by the defendant, or is justified based upon the defendant's record of prior convictions.” (Id. at p. 816, italics added.) In arriving at this conclusion, the court relied in part on the well established rule that “the right to a jury trial does not apply to the fact of a prior conviction, ” citing United States Supreme Court decisions in Cunningham, supra, 127 S.Ct. at p. 868, Blakely v. Washington, supra, 542 U.S. at p. 301, Apprendi v. New Jersey (2000) 530 U.S. 466, 490, and Almendarez-Torres v. United States (1998) 523 U.S. 224, 243. (Black II, supra, 41 Cal.4th at p. 818.) “ ‘[R]ecidivism . . . is a traditional, if not the most traditional, basis for a sentencing court’s increasing an offender’s sentence.’ [Citation.]” (Ibid.)
The California Supreme Court has also made clear that where, as here, a defendant was sentenced when Black I was still the law (Black I was decided on June 20, 2005; appellant was sentenced on June 27, 2006), no forfeiture occurs based on failure to raise the issue in the trial court. (People v. Sandoval (2007) 41 Cal.4th 825, 837, fn. 4.) Accordingly, we reject the People’s contention that appellant forfeited his claim of error by failing to object in the trial court.
Here, the trial court cited the following five aggravating factors in support of imposing the upper term: (1) the offense was particularly vicious and callous; (2) the manner in which the crime was carried out indicated some planning; (3) appellant had engaged in violent conduct indicating a serious danger to society; (4) appellant’s prior sustained petitions as a juvenile in delinquency proceedings were numerous and of increasing seriousness; and (5) appellant’s prior performance on juvenile probation and parole was unsatisfactory. The court described appellant’s history in juvenile delinquency proceedings as “remarkable, ” starting with a sustained petition for first degree residential burglary and followed by sustained petitions for multiple counts of residential burglary, violations of court orders, and receiving stolen property, among others.
The trial court’s imposition of upper terms for the manslaughter conviction and the firearm use enhancement did not infringe upon appellant’s constitutional right to jury trial under Cunningham. Where, as here, at least one legally sufficient aggravating circumstance is justified based upon a defendant’s history of recidivism, the trial court is authorized to impose the upper term. (Black II, supra, 41 Cal.4th at p. 816.) The trial court’s reliance on appellant’s prior juvenile adjudications supports the imposition of the upper terms.
Appellant argues that his prior juvenile adjudications are not equivalent to prior “convictions” and thus cannot provide the basis for imposing an upper term sentence. He relies on United States v. Tighe (9th Cir. 2001) 266 F.3d 1187, 1192-1195 (Tighe), in which a divided panel of the Ninth Circuit Court of Appeals held that the “prior conviction” exception to the general rule requiring jury determination of aggravating sentencing factors does not extend to nonjury juvenile adjudications. The majority in Tighe reasoned that prior convictions constitute a constitutionally permissible sentencing factor only because they satisfy the “fundamental triumvirate of procedural protections intended to guarantee the reliability of criminal convictions: fair notice, reasonable doubt and the right to a jury trial.” (Id. at p. 1193.) According to the Tighe majority, juvenile adjudications that do not afford the right to jury trial or require proof beyond a reasonable doubt do not fall within the prior conviction exception. (Id. at p. 1194.)
The Tighe court’s concern about juvenile adjudications requiring proof less than a reasonable doubt has no application to California juvenile adjudications. Under California law, a minor may be adjudged a ward of the court only upon proof beyond a reasonable doubt. (Welf. & Inst. Code, §§ 602, 701.)
We are not obliged to follow the reasoning of Tighe, which has been rejected by every other federal appellate court that has considered the matter. (People v. Williams (1997) 16 Cal.4th 153, 190 [decisions of lower federal courts interpreting federal law not binding on state courts].) After the Ninth Circuit filed its decision in Tighe, its reasoning was rejected in unanimous decisions of the Eighth Circuit in United States v. Smalley (8th Cir. 2002) 294 F.3d 1030, 1032, the Third Circuit in United States v. Jones (3d Cir. 2003) 332 F.3d 688, 696, and the Eleventh Circuit in United States v. Burge (2005) 407 F.3d 1183, 1190. Likewise, with one exception, California appellate courts have declined to follow Tighe. (See People v. Tu (Aug. 27, 2007, A105905) ___ Cal.App.4th ___ [2007 Cal.App. Lexis 1409, at p.*22]; People v. Buchanan (2006) 143 Cal.App.4th 139, 149; People v. Palmer (2006) 142 Cal.App.4th 724, 733; People v. Smith (2003) 110 Cal.App.4th 1072, 1075; People v. Lee (2003) 111 Cal.App.4th 1310, 1312-1316; People v. Superior Court (Andrades) (2003) 113 Cal.App.4th 817, 830-834, People v. Bowden (2002) 102 Cal.App.4th 387, 390; but see People v. Nguyen (2007) 152 Cal.App.4th 1205, 1224-1226.)
The reported California decisions that have addressed the issue arise primarily in the context of whether it is proper to treat a juvenile adjudication as a strike under the Three Strikes Law.
In People v. Tu, supra, the appellate court addressed the very issue presented here, holding that a sentencing court may enhance an adult offender’s sentence on the basis of prior juvenile adjudications without violating the offender’s constitutional right to jury trial. (People v. Tu, supra, ___ Cal.App.4th at p. ___ [2007 Cal.App. Lexis 1409, at p.*26].) The court concluded that “[t]he panoply of rights and protections extended to juveniles in this state infuse sufficient reliability into the juvenile adjudicative process to satisfy Apprendi . . . .” (Id. at ___ [2007 Cal.App. Lexis 1409, at p.*22].)
We agree with the analysis in Tu. The procedural rights afforded in a juvenile court proceeding suffice to ensure the reliability of a juvenile adjudication, and the lack of a jury trial does not undermine that reliability in any significant way. (See People v. Palmer, supra, 142 Cal.App.4th at p. 732.) Accordingly, the trial court’s finding that appellant’s prior sustained petitions in juvenile delinquency proceedings were numerous and of increasing seriousness was sufficient, in and of itself, to justify imposition of the upper terms for the manslaughter conviction and the associated firearm use enhancement.
Indeed, the United States Supreme Court has stated that “[t]he imposition of the jury trial on the juvenile court system would not strengthen greatly, if at all, the fact-finding function.” (McKeiver v. Pennsylvania (1971) 403 U.S. 528, 547.)
3. Other sentencing issues
Appellant makes two additional arguments concerning his sentence. First, in his opening brief, he devotes one sentence to arguing the trial court imposed the upper term for manslaughter and the upper term for the firearm use enhancement without differentiating the sentencing factors that applied to each. The import of his contention appears to be that the trial court was obliged to distinguish between the sentencing factors that applied to the conviction and the sentencing factors that applied to the enhancement. Second, appellant argues the trial court could not use the fact that appellant chose to arm himself with a firearm as an aggravating factor to justify an enhanced sentence for manslaughter. Appellant’s argument appears to be that the upper term sentence violates the dual-use prohibition of section 1170, which provides in relevant part that “the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law.” We address these arguments in turn.
With regard to appellant’s contention the trial court failed to distinguish between the sentencing factors that applied to his conviction and those that applied to the firearm use enhancement, appellant forfeited this claim by failing to object at the sentencing hearing. (People v. Scott (1994) 9 Cal.4th 331, 353 [waiver doctrine applies to claims involving trial court’s failure to properly make or articulate discretionary sentencing choices].) Appellant’s failure to cite any legal authority to support his argument is an additional and sufficient basis for rejecting the claim. (See Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1.) Moreover, even if we were to assume the court erred, appellant has failed to explain how he was prejudiced by the error.
With respect to appellant’s dual use claim, his argument appears to be that the trial court could not use the fact of his firearm use both as a sentence enhancement under section 12022.5, subdivision (a) and as an aggravating factor to impose the upper term on his manslaughter conviction. Appellant suggests the aggravating factor of “planning” was premised upon the fact he armed himself with a gun. Because appellant failed to object at sentencing to the alleged improper dual use of facts, he has waived the issue and is precluded from raising it on appeal. (People v. Erdelen (1996) 46 Cal.App.4th 86, 91; see also People v. Scott, supra, 9 Cal.4th at p. 353.)
Further, to the extent the court erred, any error was plainly harmless. “ ‘Improper dual use of the same fact for imposition of both an upper term and a consecutive term or other enhancement does not necessitate resentencing if “[i]t is not reasonably probable that a more favorable sentence would have been imposed in the absence of the error.” ’ [Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 728.) Here, the trial court properly relied upon appellant’s juvenile delinquency history to support the imposition of the upper term for manslaughter and the upper term for the firearm use enhancement. Under Black II, no more was needed to impose the upper term. (Black II, supra, 41 Cal.4th at p. 816.) The dual use doctrine does not prohibit the use of the same aggravating fact to impose more than one upper term—in this case an upper term on both the conviction and the related enhancement. (See People v. Williams (1984) 157 Cal.App.3d 145, 156.)
Disposition
The judgment is affirmed.
We concur: Pollak, J. Horner, J.
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.