Opinion
NOT TO BE PUBLISHED
Lake County Super. Ct. No. CR918934
Jenkins, J.
Defendant Eric Paul Williams appeals the judgment imposed following his guilty-plea conviction on the charge of infliction of corporal injury on a cohabitant, in violation of Penal Code, section 273.5, subdivision (a). Defendant contends the trial court committed prejudicial sentencing error by refusing to receive into evidence four letters written to the court on his behalf. We conclude that assuming the trial court erred when it excluded the proffered evidence, any error was harmless. Accordingly, we affirm the judgment.
Further references are to the Penal Code unless otherwise noted.
Defendant also contends he is entitled to 51 additional custody credits on the basis that amendments to section 4019 effective January 25, 2010, apply retroactively. This issue has been rendered moot by the fact that the trial court issued an amended abstract of judgment on October 1, 2010, awarding defendant the requisite custody credits pursuant to a retroactive application of the statute.
FACTS AND PROCEDURAL BACKGROUND
The following facts underlying the offense of conviction are not in dispute. In October 2009, Clearlake police were dispatched to the scene of a domestic disturbance. Police contacted defendant standing outside the victim’s (Kimberly Carlsen’s) apartment. Officers smelled a strong odor of alcohol from defendant and observed that his eyes were bloodshot and watery and that he had trouble keeping his balance. An officer contacted Carlsen and observed a contusion above her left eye, which was purplish in color. He also noted that her eye was swollen shut. Carlsen told police that on the previous evening she and her live-in boyfriend (defendant) had an argument during which defendant pinned her to the floor and punched her in the eye with a closed fist.
Based on this incident, the Lake County District Attorney (DA) filed an information charging defendant in count I with infliction of corporal injury on a cohabitant, in violation of section 273.5, subdivision (a). In connection with count I, the information also alleged that defendant had two prior domestic violence convictions within the meaning of section 243, subdivision (e)(2). The information also charged defendant in count II with false imprisonment in violation of section 236.
On November 30, 2009, defendant appeared with counsel and agreed to plead no contest to count I in return for dismissal of the balance of the information. The plea form signed by defendant reflects that defendant knowingly and voluntarily waived his constitutional rights and was advised that the maximum term of commitment for the offense of conviction was four years. The court accepted defendant's plea, found him guilty and also determined that defendant had violated a term of probation in two pending cases which specified that he “obey all laws.” At the sentencing hearing on March 15, 2010, the court stated that it had read and considered the probation report, including the attached, four-page statement by defendant, and asked if the parties had any other evidence. The DA had no further evidence to present. Defense counsel replied that he had several letters he wished to introduce. The DA objected on the basis that the letters “degrade[ed] the victim, ” adding, “If they [the letter writers] want to testify, they can come testify. But I would object to the letters.” The letters were marked collectively as defendant’s exhibit A. The court reviewed the letters and sustained the DA’s objection, ruling that: “The objection to A on hearsay grounds is sustained.”
The only other evidence presented at the sentencing hearing was the testimony of defendant’s mother, Lorie Sylstra. Sylstra informed the court that defendant could reside in her three-bedroom home on seven acres in Redwood Valley if probation was granted. She also testified that defendant was physically infirm, stating that he is a “very frail man” and an insulin dependent diabetic with a bad heart. She further stated that defendant has “an extreme drinking problem” and would benefit from alcohol rehabilitation treatment. Sylstra opined that her son does not have a violent character and stated that she does not want him to go to prison.
Following Sylstra’s testimony, the court entertained argument of counsel regarding defendant’s application for probation. Thereafter, the court adopted the recommendation in the probation report and denied probation on the following grounds: “The nature, seriousness and circumstances of the crime are considered to be as serious as other instances of the same type of crime. The defendant’s prior convictions are numerous and increasing in seriousness. He has twelve prior misdemeanor convictions, three of which relate to... domestic violence type cases. The defendant’s prior performance on probation was poor. He was in fact on two grants of probation for domestic violence at the time of this offense. Although the defendant claims a willingness to comply with the terms and conditions of probation, the Court doubts his ability to do so because of social factors, primarily that he has a substance abuse problem that has not been addressed.... So he’s got a long-standing substance abuse problem. The defendant does not appear to be remorseful for the conduct in this case. And the likelihood that he would constitute a danger to others if not imprisoned is considered by the Court to be substantial.”
Having denied probation, the court solicited argument from counsel regarding the appropriate term of commitment. Defense counsel argued that because defendant had no prior felonies, “the interests of justice would be amply served by no more than the mid term.” Based on all the information before it, the trial court concluded that the factors in aggravation outweighed those in mitigation “in number and in weight.” On that basis, the trial court “elect[ed] to impose the upper term” and sentenced defendant to a term of four years imprisonment. Defendant filed a timely notice of appeal on April 5, 2010.
DISCUSSION
Defendant contends that the trial court’s exclusion of the letters submitted in support of his application for probation on hearsay grounds was error. On this point, defendant argues that at sentencing the rules of evidence and procedure are relaxed, allowing for the admissibility of the letters in question here. Further, he argues that letters concerning the defendant are explicitly made admissible under California Rules of Court, rule 4.411.5(a)(7)(b).
Having canvassed the evidentiary rules and rules of court applicable to the admission of evidence at sentencing proceedings, we question whether the letters at issue here were admissible as a matter of law. Nevertheless, even if the trial court erred by excluding the letters, reversal is not warranted. In this regard, courts have consistently held that a harmless error standard for procedural error at sentencing should apply and that remand for resentencing is unnecessary unless it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (See People v. Price (1991) 1 Cal.4th 324, 492; People v. Avalos (1984) 37 Cal.3d 216, 233, quoting People v. Watson (1956) 46 Cal.2d 818, 836.)
For example, “No evidence in... mitigation may be introduced at the sentencing hearing unless it was described in the statement [of mitigation]” filed pursuant to section 1170, subdivision (b). (Cal. Rules of Court, rule 4.437(c)(2).) Here, defendant failed to submit a statement in mitigation pursuant to section 1170, subdivision (b). Also, defendant’s reliance on rule 4.411.5(a)(7)(B) for admissibility of the letters is misplaced. That rule addresses matters that should be included in the probation officer’s presentence investigation report, including “written statements” from “interested persons.” (See Cal. Rules of Court, rule 4.411.5(a)(7)(B).) However, the letters in question were not submitted to the probation office for purposes of the presentence report but were first presented at the sentencing hearing.
In his reply brief, defendant acknowledges that sentencing error is assessed under the Watson standard. Nevertheless, defendant asks that we adopt a “new” standard of review, where the matter is automatically remanded to the trial court upon a finding of sentencing error, and then further appellate review is confined to the “narrow question” of whether the trial court “abused discretion after considering the proper facts.” We decline to entertain defendant’s proposal for a new standard of appellate review for sentencing error because we are bound to follow existing law. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [stating that “all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction”].)
With this standard in mind we turn to examine the substance of the letters ruled inadmissible by the court. The first is from Janelle Perry, a retired nurse and friend of defendant’s mother, who wrote that defendant has an alcohol problem requiring long-term treatment and describes him as a “gentle man” who would “not... harm anyone.” Perry describes defendant’s relationship with the victim as “toxic and dangerous, ” and defendant as a “frail diabetic [who] can’t take any more getting beat up, fighting and drinking with [the victim] doing her thing, whether it is mental illness, drugs or what.”
The second letter is from the victim. It states that defendant is an alcoholic who needs “help more than prison.” The victim urges the court not to send defendant to prison because she is pregnant and “really need[s] [defendant] home.” The third letter was from Monica Grossman. She states that she has known defendant for two years and has “never known him to be a violent person.” Grossman states she has witnessed defendant’s alcoholism and opines that he “needs to be in a long term recovery center until he builds up the willpower to fight his disease.” Grossman states defendant was in the final month of an alcohol recovery program in October 2008 when he met the victim and entered a destructive relationship that turned his life “upside down into a whirlwind of chaos” and subjected him to severe mental abuse by the victim.
The fourth and final letter is from defendant’s mother, Lorie Sylstra, who testified at the sentencing hearing. In her letter to the court, Sylstra states defendant met the victim while in recovery in 2008. Since then defendant’s life “has been turned completely upside down” by his relationship with a woman who uses drugs, and is physically and verbally abusive towards him. Sylstra also opines in the letter that defendant “is not a violent person.”
Having examined the proffered letters in light of the evidence actually admitted at the sentencing hearing, we find that it is not reasonably probable that defendant would have received a more favorable sentence if the trial court had received them into evidence. In our view the information contained in the letters was cumulative to the evidence considered by the court at sentencing. For example, the letters address defendant’s alcoholism, his need for treatment, his poor health, including diabetes and disability, and the physical and mental abuse purportedly heaped upon him by the victim. However, the court was presented with information pertaining to these issues via the probation report, defendant’s four-page letter attached to the probation report, and the testimony of defendant’s mother, Lorie Sylstra, at the sentencing hearing. The probation report describes defendant’s alcohol abuse and his prior history of residential treatment, and recommends that while imprisoned defendant should participate in a substance abuse program. The report also notes that defendant “is on SSI disability for diabetes and an injury to his left knee, ” has not worked for the past five years on account of his disability, and that he “claims to suffer from post traumatic stress disorder from childhood abuse.” Moreover, defendant’s four-page letter to the court recounts, from defendant’s perspective, the nature of his relationship with the victim, and describes the physical and mental abuse she purportedly inflicts upon him. Lastly, the court received statements from Sylstra (at the hearing) and the victim (via the probation report) requesting that defendant not receive a prison sentence. The court was not swayed. Rather, the court deemed defendant unsuitable for probation, gave significant weight to the factors in aggravation by finding they outweighed those in mitigation, and on that basis imposed the upper term of four years.
The letters also express that defendant should be granted probation rather than imprisonment because he is a gentle and non-violent person. The latter opinion is flatly contradicted by defendant’s criminal history as documented in the probation report. His propensity for violence is demonstrated by several domestic violence related convictions, as well as convictions for assault, exhibiting a deadly weapon and battery.
In sum, given the cumulative nature of the information contained in the letters, we conclude it is not “reasonably probable” that a result more favorable to the appealing party would have been reached had the letters been received into evidence. (People v. Price, supra, 1 Cal.4th at p. 492.) Accordingly, even if the trial court erred by excluding the letters, remand for resentencing is unnecessary. (Ibid.)
DISPOSITION
The judgment is affirmed.
We concur: McGuiness, P. J., Siggins, J.