IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
October 24, 2011
THE PEOPLE, PLAINTIFF AND RESPONDENT,
TROY JORGENSEN, DEFENDANT AND APPELLANT.
(Super. Ct. No. 09F04644)
The opinion of the court was delivered by: Raye , P. J.
P. v. Jorgensen
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
Following a jury trial, defendant Troy Jorgensen was convicted of a lewd and lascivious act upon a child who is 14 or 15 years old by a person who is at least 10 years older (Pen. Code, § 288, subd. (c)(1)), five counts of sexual intercourse with a minor more than three years younger than defendant (Pen. Code, § 261.5, subd. (c)), four counts of oral copulation of a minor (Pen. Code, § 288a, subd. (b)(1)), two counts of sexual penetration of a minor (Pen. Code, § 289, subd. (h)), and single counts of furnishing marijuana to a minor (Health & Saf. Code, § 11361, subd. (b)), dissuading a witness (Pen. Code, § 136.1, subd. (b)(1)), and misdemeanor battery on a dating partner (Pen. Code, § 243, subd. (e)(1)).*fn1 The trial court sustained six strike allegations and sentenced defendant to 325 years to life in state prison.
On appeal, defendant contends (1) there was insufficient evidence to support three of the six strike allegations, (2) two of the three remaining strikes should have been stricken in the interests of justice, (3) admitting prior uncharged acts of domestic violence as propensity evidence violated due process; and (4) there was instructional error on the propensity evidence. We shall affirm.
S.B. was born on January 2, 1993. She met defendant through her friend Lydia's mother in May 2008. Defendant, who was born on July 14, 1967, lived in a trailer on the property of Lydia's family.
Defendant and S.B. began smoking marijuana together. He provided the marijuana, which they smoked "Every day to every other day." She became sexually active with defendant in December 2008. They had intercourse about 15 times before S.B. turned 16. S.B. and defendant also engaged in oral sex and digital penetration of S.B. when she was 15. The relationship was consensual; defendant told S.B. he loved her and gave her an engagement ring. S.B. considered defendant to be her boyfriend about a week after she turned 16. S.B. ran away from home in February 2009 and lived with defendant for about a week.
Defendant knew S.B.'s age and was concerned he would get caught. He would tell S.B. to deny everything if anyone asked her about the relationship. Defendant once threatened to kill S.B. and cut her up if she told anyone about them.
Defendant "smacked" S.B. across the face during an argument in May 2009. S.B. did not report the incident to the police because she still loved defendant and did not want him to go to jail.
S.B. ran away from home a second time in late May 2009 and lived in defendant's trailer for about two weeks. On June 6, 2009, defendant struck her in the face and punched her in the chest during an argument. S.B. got a knife, and defendant told her to stab him. When S.B. put the knife down and walked away, defendant pushed her down. S.B. twisted her ankle as she kicked defendant and freed herself. S.B. jumped on the bed and pulled down a curtain rod; defendant grabbed the rod and used it to strike S.B. all over her body.
S.B. did not report the incident until she returned home. She later made a pretext call to defendant in which he apologized for hitting her. Defendant told S.B. he was afraid of going to prison for "statutory rape" if S.B. got pregnant by him. When S.B. asked why he would go to prison, defendant told her she was 16 and that was statutory rape.
In August 2002 defendant moved to Sacramento with his girlfriend, Sharon Warden-Papandrea. During an argument in February 2004, defendant punched her in the right side of the face with his fist. Warden-Papandrea escaped to the bedroom but defendant caught her. He then grabbed Warden-Papandrea, punched her, and kicked her.
The relationship ended in August 2004. In September 2004 defendant made threatening phone calls to Warden-Papandrea, telling her, "I'm going to take your daughter away from you. I'm going to burn the house down. I'm going to kill your kids. I'm going to burn all of you in the house."
Roberta Korf dated defendant and lived with him in 2005. On May 22, 2005, they got into an argument while Korf drove home. Defendant said it was a good day to die, grabbed the steering wheel, and jerked it. Korf lost control of the car, which spun and struck a utility pole.
The trial court sustained six strike allegations against defendant--three 1988 convictions for first degree burglary (§ 459), a 1987 conviction for theft of a firearm (former § 487, subd. (3)), and convictions for assault with a deadly weapon (§ 245, subd. (a)(1)) in 1993 and 1994. Defendant asserts there is insufficient evidence to support the trial court's finding that the theft of a firearm and assault with a deadly weapon convictions were strikes.
To find defendant sustained a prior felony conviction within the meaning of the "three strikes" law (§ 667, subd. (d)) and a prior serious felony within the meaning of section 667, subdivision (a), the prior conviction must be a "serious felony" as defined by section 1192.7, subdivision (c).
In determining whether a prior conviction is a serious felony and a strike, "the trier of fact [may] look to the entire record of the conviction" but may look "no further[.]" (People v. Guerrero (1988) 44 Cal.3d 343, 355, italics omitted.) The record of the conviction includes all relevant documents found in the court file of the prior conviction. (People v. Castellanos (1990) 219 Cal.App.3d 1163, 1172.) Hearsay evidence is inadmissible unless the statements fall under an exception to the hearsay rule. (People v. Reed (1996) 13 Cal.4th 217, 230.)
"[I]f the prior conviction was for an offense that can be committed in multiple ways, and the record of the conviction does not disclose how the offense was committed, a court must presume the conviction was for the least serious form of the offense. [Citations.] In such a case, if the serious felony nature of the prior conviction depends upon the particular conduct that gave rise to the conviction, the record is insufficient to establish that a serious felony conviction occurred." (People v. Miles (2008) 43 Cal.4th 1074, 1083 (Miles).)
While grand theft generally is not a strike, grand theft of a firearm is a serious felony and therefore a strike. (§ 1192.7, subd. (c)(26).) At the time of defendant's prior conviction, former section 487, subdivision (3) provided grand theft is committed: "When the property taken is an automobile, firearm, horse, mare, gelding, any bovine animal, any caprine animal, mule, jack, jenny, sheep, lamb, hog, sow, boar, gilt, barrow or pig."
The People presented the abstract of judgment for the grand theft conviction. The abstract, which was prepared on June 19, 1990, stated defendant was convicted on April 7, 1987, of "487.3 GRAND THEFT FIRARM [sic]." Defendant asserts this is insufficient evidence to support the trial court's finding because too much time passed between the conviction and the abstract of judgment.
"The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt. [Citation.] Where, as here, the mere fact of conviction under a particular statute does not prove the offense was a serious felony, otherwise admissible evidence from the entire record of the conviction may be examined to resolve the issue. . . .
"Such evidence may, and often does, include certified documents from the record of the prior proceeding and commitment to prison. [Citations.] A court document, prepared contemporaneously with the conviction, as part of the record thereof, by a public officer charged with that duty, and describing the nature of the prior conviction for official purposes, is relevant and admissible on this issue." (Miles, supra, 43 Cal.4th at p. 1082.)
Defendant's argument focuses on the term "contemporaneously." He asserts nothing in the abstract indicates either the clerk or the sentencing judge at the 1990 probation revocation proceeding was present when he was convicted for the offense in 1987. Citing Miles, supra, 43 Cal.4th 1074 and People v. Williams (1996) 50 Cal.App.4th 1405 (Williams), defendant concludes: "[W]here the description [of a prior conviction] is prepared years later, by officials who were not involved in the actual trial, the description may not be relied on as proof beyond a reasonable doubt."
Miles and Williams do not support defendant's proposition. In Miles, the Supreme Court held that a fingerprint card was not reliable evidence of the nature of a prior conviction absent a showing that "the card had been prepared contemporaneously with the judgment by a court official charged with the duty of recording it accurately. [Citation.]" (Miles, supra, 43 Cal.4th at p. 1093.) Williams held a fingerprint card was not reliable evidence of the prior conviction because there was "no reasonable basis to believe that the Department of Corrections employee who made the notation had any information concerning the underlying conviction other than that revealed in the abstract of judgment." (Williams, supra, 50 Cal.App.4th at p. 1413.) Since neither case involved the abstract of judgment, they are inapposite.
"[T]he abstract is a contemporaneous, statutorily sanctioned, officially prepared clerical record of the conviction and sentence. It may serve as the order committing the defendant to prison (§ 1213), and is '"the process and authority for carrying the judgment and sentence into effect." [Citations.]' [Citation.] As such, 'the Legislature intended [it] to [accurately] summarize the judgment.' [Citations.] When prepared by the court clerk, at or near the time of judgment, as part of his or her official duty, it is cloaked with a presumption of regularity and reliability." (People v. Delgado (2008) 43 Cal.4th 1059, 1070 (Delgado).)
While prepared three years after defendant's conviction, the abstract was prepared contemporaneously with the entry of judgment for the offense when defendant was sent to prison for violating his probation. This satisfies the Supreme Court's test for reliability as announced in Delgado. The abstract describes defendant's 1987 conviction as grand theft of a firearm, which is a serious felony and a strike. Substantial evidence supports the trial court's strike finding on this prior conviction.
The People presented evidence that defendant suffered prior convictions for assault with a deadly weapon (§ 245, subd. (a)) in 1993 and 1994. There was no evidence regarding the nature of those convictions. Defendant asserts assault with a deadly weapon is not a serious felony within the three strikes law because the People did not prove he personally used a dangerous or deadly weapon to commit the assaults.
At one time, a conviction for assault with a deadly weapon was not a serious felony unless the People proved that the defendant personally used a dangerous or deadly weapon. (People v. Rodriguez (1998) 17 Cal.4th 253, 261-262; People v. Equarte (1986) 42 Cal.3d 456, 465.) However, Proposition 21, passed in the March 7, 2000, primary election, adopted section 1192.7, subdivision (c)(31), which states: "As used in this section, 'serious felony' means any of the following: [¶] . . . [¶] (31) assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245." (See Ballot Pamp., Primary Elec. (Mar. 7, 2000) text of Prop. 21, § 17, pp. 124-125, italics omitted.)
Defendant argues section 1192.7, subdivision (c)(31) is limited to assaults on firefighters and peace officers. He claims that applying this provision to all assaults with a deadly or other specified weapon is contrary to the voters' intent and would render meaningless subdivision (c)(32) of section 1192.7.
In interpreting a voter initiative, "we apply the same principles that govern statutory construction" (People v. Rizo (2000) 22 Cal.4th 681, 685), and "our primary purpose is to ascertain and effectuate the intent of the voters who passed the initiative measure" (In re Littlefield (1993) 5 Cal.4th 122, 130). "'In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose.' [Citation.] At the same time, 'we do not consider . . . statutory language in isolation.' [Citation.] Instead, we 'examine the entire substance of the statute in order to determine the scope and purpose of the provision, construing its words in context and harmonizing its various parts.' [Citation.] Moreover, we '"read every statute 'with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.'"' [Citation.]" (State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043.)
"Here the statutory language is clear and unambiguous. Section 1192.7(c)(31) specifies that an assault with a specified weapon or an assault on a peace officer or firefighter in violation of section 245 is a 'serious felony' and omits an assault by means of force likely to produce great bodily injury from that classification." (People v. Winters (2001) 93 Cal.App.4th 273, 277; see also People v. Myers (2007) 148 Cal.App.4th 546, 554; Delgado, supra, 43 Cal.4th at p. 1070, fn. 4; People v. Haykel (2002) 96 Cal.App.4th 146, 149; People v. Luna (2003) 113 Cal.App.4th 395, 398 (Luna), disapproved on other grounds in Delgado, supra, 43 Cal.4th at p. 1070, fn. 4.)*fn2
Properly interpreted, subdivision (c)(31) of section 1192.7 states that all assaults on peace officers or firefighters, and an assault on anyone with a deadly or other specified weapon, is a serious felony. "Under section 1192.7, subdivision (c)(31), any assault on a peace officer in violation of section 245(c) constitutes a serious felony under section 1192.7, regardless of whether a deadly weapon was used. Thus, section 1192.7, subdivision (c)(31), says '"serious felony"' includes 'assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245.' (Italics added [by Semien].) The reference to assault on a peace officer in the second half of subdivision (c)(31) of section 1192.7 is not limited to assault with a deadly weapon, as is the reference to assault in the first half of the subdivision. Accordingly, any assault on a peace officer in violation of section 245 is a serious felony." (People v. Semien (2008) 162 Cal.App.4th 701, 709 (Semien).)
Defendant's interpretation would render superfluous the language of section 1192.7, subdivision (c)(31) describing assaults with a deadly or other specified weapon, since the phrase "assault on a peace officer or firefighter, in violation of Section 245" already covers such assaults. Like every other court to consider the matter, we conclude that any assault with a deadly weapon is a serious felony under subdivision (c)(31).
Defendant notes section 1192.7, subdivision (c)(32), also added by Proposition 21, adds to the list of serious felonies: "assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Sections 245.2, 245.3, or 245.5." He argues that applying subdivision (c)(31) to all assaults with a deadly weapon renders this provision meaningless. Not so. The last phrase of subdivision (c)(31), "in violation of Section 245" limits this provision to assault with a deadly weapon in section 245; subdivision (c)(32) addresses assault as defined in different statutes, sections 245.2, 245.3, and 245.5.
Defendant's prior offenses were described in their respective abstracts as assault with a deadly weapon in violation of section 245, subdivision (a)(1). Thus, there is substantial evidence supporting the trial court's strike findings. (Semien, supra, 162 Cal.App.4th at p. 710.)
Defendant contends it was an abuse of discretion for the trial court to refuse to strike two of defendant's three prior convictions for first degree burglary. He is wrong.
The record indicates defendant was convicted on three counts of first degree burglary on March 24, 1988. He was sentenced to a four-year term on one count, a consecutive 16-month term on another count, and a stayed four-year term on the third count. From this, defendant infers he committed the three offenses in a single act and argues the trial court should have struck two of the three convictions. (See People v. Burgos (2004) 117 Cal.App.4th 1209, 1214 [abuse of discretion to not strike one of two prior convictions arising from a single act].)
Defendant never argued this ground when he asked the trial court to strike his prior convictions. "It is one thing to say that the court must consider evidence offered by the defendant in support of his motion, but quite another to say that the court must gather and consider evidence that was not presented. We reject the notion that a defendant's request under section 1385 imposes on the trial court a sua sponte investigational duty to ferret out facts potentially supporting the defendant's request. We believe the burden instead is on the defendant to provide the facts." (People v. Lee (2008) 161 Cal.App.4th 124, 129.)
His contention is also without merit. Defendant received consecutive terms on two of the three prior burglary counts. Since a defendant normally is not subject to consecutive terms for offenses arising out of a single transaction (§ 654), the record strongly suggests at least two of the prior burglaries arose from different acts.
Even if the trial court struck one or two of the prior burglaries, defendant's argument does not address the remaining burglary or his three other strike convictions. Defendant presents no argument as to why the four remaining strikes should be stricken, rendering harmless any possible error in not dismissing two of the burglary strikes.
Defendant contends it was a violation of his federal due process rights to admit prior acts of domestic violence as propensity evidence pursuant to Evidence Code section 1109.
As defendant acknowledges, the California Supreme Court rejected such a challenge to Evidence Code section 1108, which provides that when a defendant in a criminal action "is accused of a sexual offense, evidence of the defendant's commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352." (§ 1108, subd. (a); see People v. Falsetta (1999) 21 Cal.4th 903, 907.) Defendant also concedes that numerous Court of Appeal decisions have applied Falsetta to reject constitutional attacks on Evidence Code section 1109. (People v. Brown (2000) 77 Cal.App.4th 1324, 1332-1334; People v. Hoover (2000) 77 Cal.App.4th 1020, 1025-1030; People v. Johnson (2000) 77 Cal.App.4th 410, 416-420; People v. James (2000) 81 Cal.App.4th 1343, 1353; People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096.)
We decline defendant's request to chart a different course. Like the Court of Appeal in People v. Jennings (2000) 81 Cal.App.4th 1301, "[w]e agree with the reasoning and the results in these cases, and adopt their analyses as our own." (Id. at p. 1310.)
The trial court instructed the jury with CALCRIM No. 852 as follows: "The People presented evidence that the defendant committed domestic violence that was not charged in this case . . . . [¶] . . . [¶] You may consider this evidence only if the People have proved by a preponderance of the evidence that the defendant in fact committed the uncharged offense. [¶] Proof by a preponderance of the evidence is evidence--is a different burden of proof from beyond a reasonable doubt. A fact is proved by a preponderance of the evidence if you conclude that it is more likely than not that the fact is true. If the People have not proved this burden you may disregard this evidence entirely. [¶] If you decide the defendant committed the uncharged domestic violence, you may, but are not required, to conclude from the evidence that the defendant was disposed or inclined to commit domestic violence, and based on that decision also conclude that the defendant was likely to commit and did commit . . . . [¶] . . . [¶] . . . [t]he crime charged in Count Fifteen, attempt [sic] simple battery against a cohabitant, a person with a dating relationship as charged in that count. If you conclude that the defendant committed the charge of domestic violence, that conclusion is only one factor to consider along with all the other evidence. It's not sufficient by itself to prove that the defendant is guilty of Count Fifteen. Period. [¶] The People must still prove each charge and allegation of every other charge beyond a reasonable doubt."
Defendant contends the foregoing instruction unconstitutionally reduced the prosecution's burden of proof by allowing the jury to convict him based on proof by a preponderance of the evidence that he committed uncharged offenses. He argues the instruction also violated due process by substituting the proof of a basic fact, proof of the uncharged offenses, for proof of an ultimate fact, that defendant committed the charged domestic violence offense.
Defendant did not object to the instruction. However, since his contention addresses his substantial rights, it is not forfeited on appeal. (People v. Palmer (2005) 133 Cal.App.4th 1141, 1156; see also § 1259.)
This court has rejected similar challenges to CALCRIM No. 852. (See People v. Johnson (2008) 164 Cal.App.4th 731, 738-740; People v. Reyes (2008) 160 Cal.App.4th 246, 250-253.) Referring to the predecessor to CALCRIM No. 852, CALJIC No. 2.50.02, we explained:
"CALCRIM No. 852 makes clear the evidence of uncharged acts of domestic violence may only be considered at all if it has been established by a preponderance of the evidence and explains what is meant by that burden of proof. The instruction also explains that if that burden is not met, the evidence must be disregarded entirely.
"As with CALJIC No. 2.50.02, CALCRIM No. 852 explains that if the jury finds the defendant committed the uncharged acts, it may but is not required to conclude the defendant was disposed to or inclined to commit domestic violence and may also conclude that the defendant was likely to commit and did commit the crimes charged in the case. Also as with CALJIC No. 2.50.02, CALCRIM No. 852 clarifies that even if the jury concludes the defendant committed the uncharged acts, that evidence is only one factor to consider, along with all the other evidence and specifies that such evidence alone is insufficient to prove the defendant's guilt on the charged offenses. CALCRIM No. 852 then goes on to state that the People must still prove each element of every charge beyond a reasonable doubt. In this, CALCRIM No. 852 goes further than CALJIC No. 2.50.02 with a clarification which inures to the defendant's benefit." (People v. Reyes, supra, 160 Cal.App.4th at p. 252.)
Nothing in CALCRIM No. 852 authorizes the jury to use a preponderance of the evidence standard for other than the question of whether defendant committed the uncharged acts of domestic violence. Likewise, the instruction clearly states defendant cannot be convicted on the basis of the propensity evidence alone, and it was merely one piece of evidence which the jury must consider with the rest of the evidence.
Defendant notes the trial court's oral instruction misstated CALCRIM No. 852, by stating: "[t]he People must still prove each charge and allegation of every other charge beyond a reasonable doubt," which erroneously adds the word "other" to the instruction. He asserts that by inserting the term "other" into this sentence, the trial court implied the People did not have to prove the domestic violence charge beyond a reasonable doubt.
The jurors received the correct CALCRIM No. 852 in written form. Misreading of jury instructions is at most harmless error when the written instructions received by the jury are correct. (People v. Osband (1996) 13 Cal.4th 622, 687.) The written version of jury instructions controls should there be any conflict between the written instructions and the oral instructions. (Id. at p. 717.) The written instructions render the court's misstatement harmless.
The judgment is affirmed.
We concur: BUTZ , J. HOCH , J.