THE PEOPLE v. FRANKIE SMITH

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Court of Appeal, Second District, California.

THE PEOPLE, Plaintiff and Respondent, v. FRANKIE SMITH, Defendant and Appellant.

B219913

Decided: March 30, 2011

Cannon & Harris and Gregory L. Cannon, under appointment by the Court of Appeal, for Defendant and Appellant. Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Steven D. Matthews and G. Tracey Letteau, Deputy Attorneys General, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

In the underlying action, the trial court revoked appellant Frankie Smith's probation after a jury found him guilty of misdemeanor battery of a co-parent (Pen.Code, § 243, subd. (e)(1)).1  Appellant contends the trial court erred in failing to provide a unanimity instruction, and in imposing the upper term on the conviction underlying his probation;  in addition, he asserts the sentencing minute order and abstract of judgment incorrectly reflect his sentence.   As explained below, we agree that the sentencing minute order and abstract of judgment must be corrected, but see no error in the judgment.   We will therefore affirm the judgment.

RELEVANT FACTUAL AND

PROCEDURAL BACKGROUND

In January 2007, a felony complaint was filed alleging that appellant Frankie Smith committed the following offense against Nakima H. on October 9, 2006:  willful, deliberate, and premeditated attempted murder (§§ 187, subd. (a), 664);  assault with a firearm (§ 245, subd. (a)(2));  and criminal threats (§ 422).   Accompanying the assault charge was an allegation that appellant personally used a firearm (§ 12022.5).2  On July 22, 2008, pursuant to a plea agreement, appellant pled no contest to assault with a firearm.   The trial court dismissed the remaining charges and placed appellant on formal probation for five years.

In July 2009, an amended information was filed alleging that appellant committed the following offenses against Nakima on February 3, 2009:  assault with a knife (§ 245, subd. (a)(1);  criminal threats (§ 422);  and misdemeanor battery of a co-parent (§ 243, subd. (e)(1)).3  The amended information also charged appellant with abuse of a child, Tyrell H., on the same date (§ 273a, subd. (a)).4  Appellant pleaded not guilty.

In August 2009, a jury found appellant guilty of misdemeanor battery of a co-parent, and not guilty of the other charges.   In view of the verdict, the trial court found that appellant had violated the conditions of his probation.   On August 28, 2009, the trial court imposed the upper term of four years on appellant's July 2008 assault conviction and a term of 365 days on his misdemeanor battery conviction, to be served concurrently.   This appeal followed.

FACTS

A. Prosecution Evidence

On February 3, 2009, Los Angeles Police Department (LAPD) Officer James Quinones and his partner responded to a radio call regarding domestic violence at Nakima's residence.   As they arrived, Quinones saw Nakima and several children standing in the street.   Nakima was crying.   She told Quinones and other investigating officers that she had engaged in an argument with appellant inside the house.   During the dispute, appellant said, “Bitch, you think I need a gun to kill you?,” and put a knife to Nakima's throat.   As she left the house to find help, appellant kicked her in the back.   After appellant followed her outside the house, she circled back to her house.   Appellant entered the house and pushed her son, Tyrell, against a wall.   The officers found a bump on Tyrell's head.5

At trial, Nakima testified that appellant was the father of Tyrell and another child, Darrius, but denied that appellant had engaged in any wrongdoing on February 3, 2009.   According to Nakima, the misconduct by appellant she had described to the investigating officers and during the preliminary hearing never occurred.

Tyrell initially testified that he saw no violence between appellant and Nakima, and that he bumped his head against a refrigerator when he accidently tripped.   Tyrell later retracted this testimony and stated that Nakima had instructed him to lie.   According to Tyrell, appellant had put his hands on Nakima's throat and had thrown Tyrell against the refrigerator.

Darrius initially testified only that he heard an argument between appellant and Nakima.   He later stated that he saw appellant place Nakima in a headlock and grab a telephone from her hand.

B.  Defense Evidence

Appellant testified that on February 3, 2009, he visited Nakima to fix the brakes on her mini-van and see his children.   They fell into an argument regarding the repair of some house windows, but no violence occurred.   He denied having threatened Nakima, and attributed Tyrell's injury to an accidental fall.

DISCUSSION

Appellant contends the trial court erred in failing to provide a unanimity instruction, and in imposing the high term on the July 2008 assault conviction.   In addition, he contends the sentencing minute order and abstract of judgment incorrectly reflect a DNA penalty assessment and mandate AIDS testing.

A. Unanimity Instructions

Appellant contends the trial court improperly failed to instruct the jury sua sponte regarding juror unanimity in connection with the battery charge.

Generally, battery “cannot be accomplished without a touching of the victim.”  (People v. Marshall (1997) 15 Cal.4th 1, 38.)   Here, the prosecution submitted evidence that appellant forcibly touched Nakima several times during the incident.   Nakima told investigating officers that appellant held a knife to her throat and kicked her, and Darrius testified that appellant placed Nakima in a headlock and grabbed a phone from her.   Pointing to this evidence, appellant argues the trial court was obliged to instruct the jury that it must unanimously agree upon the precise act that constituted appellant's battery.   We disagree.

The trial court may be required to give a unanimity instruction sua sponte in some circumstances.  (People v. Jenkins (1994) 29 Cal.App.4th 287, 298–299.)   However, no such instruction is required when the case falls within the so-called “continuous course of conduct exception.”  (Id. at p. 299.)   This exception is applicable “ ‘when the acts are so closely connected that they form part of one and the same transaction, and thus one offense.   [Citation.]’ ”  (Ibid., quoting People v. Thompson (1984) 160 Cal.App.3d 220, 224.)

An instructive application of this exception is found in People v. Robbins (1989) 209 Cal.App.3d 261.   There, the defendant entered the home of an elderly woman, sexually abused her, and physically injured her.  (Id. at pp. 263–264.)   He was convicted of two counts of forcible oral copulation and one count of sexual penetration by force.  (Ibid.) In addition, the jury found that he had inflicted great bodily injury in the commission of each offense.   (Ibid.) On appeal, the defendant argued that the jury should have been instructed that it must unanimously agree on the injuries the woman suffered in connection with each count.  (Id. at p. 264.)   The appellate court rejected this contention, reasoning that the defendant's attack “was one prolonged assault, of which the individual blows and other indignities were inseparable components.”  (Id. at p. 266.)   We reach the same conclusion here, as appellant's behavior toward Nakima constituted to a single course of conduct.

Appellant contends that the jury necessarily rejected the existence of a single course of conduct in finding him not guilty of the other charges.   He thus invites us to infer that the jury, in acquitting him of charges factually related to the battery charge, was potentially confused regarding the act constituting the battery.   As explained below, no such inference may be drawn from the jury's verdicts.

Section 954 provides in part:  “An acquittal of one or more counts shall not be deemed an acquittal of any other count.”   Under this provision, each count in an information stands upon its own merit, and “a verdict of ․ acquittal upon one count has no bearing upon the verdict with respect to another count.”  (People v. Brown (1985) 174 Cal.App.3d 762, 769, overruled on another ground in People v. Escobar (1992) 3 Cal.4th 740, 752.)   Thus, an acquittal on a charged offense supports no inference regarding the jury's determinations with respect to the elements of the offense, for purposes of challenging the verdict regarding another charged offense.  (People v. Witzel (1957) 155 Cal.App.2d 486, 491.)

The principle embodied in section 954 precludes the inference central to appellant's contention.   As our Supreme Court has explained, when a jury finds a defendant guilty of a charge but acquits him on factually related counts, the pattern of verdicts is properly attributed to jury lenity, compromise, and other factors that do not invalidate the verdicts, rather than confusion regarding the application of the law.  (People v. Lewis (2001) 25 Cal.4th 610, 656.)   Accordingly, we conclude that there was no instructional error.

B. Upper Term on July 2008 Assault Conviction

Relying on Cunningham v. California (2007) 549 U.S. 270 (Cunningham ), appellant challenges his sentence regarding the July 2008 conviction for assault with a firearm.   Following the jury's determination that appellant had committed a misdemeanor battery on Nakima, the trial court revoked appellant's probation and imposed sentence on the July 2008 conviction and the battery.   In selecting the upper term for the July 2008 conviction, the court pointed to appellant's five-year prison term for a 1998 conviction for assault with a deadly weapon and appellant's misconduct while on probation, that is, his battery of Nakima, who was also the victim of the assault underlying the July 2008 conviction.6  Appellant argues that the trial court, in making these determinations, contravened his right to a jury trial under the Sixth Amendment of the United States Constitution.   We find no error.7

In Cunningham, the United States Supreme Court held that under the then-effective version of California's determinate sentencing law (DSL), a defendant was entitled to a jury trial on the facts supporting the selection of the upper term, with the exception of those facts regarding the defendant's recidivism that the trial court may determine under Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi ).  (Cunningham, supra, 549 U.S. at pp. 281–282.)   Following Cunningham, the Legislature reformed the DSL to eliminate the middle term as the presumptively appropriate term in the absence of aggravating or mitigating factors.  (Sandoval, supra, 41 Cal.4th at p. 850.)   In People v. Black (2007) 41 Cal.4th 799, 815–816 (Black ), our Supreme Court explained a key implication of Cunningham for the unmodified DSL, namely, 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.”   Furthermore, in Sandoval, the court concluded that the modifications to the DSL cured the deficiencies identified in Cunningham, as they “[e]liminat[ed] the explicit requirement that the middle term be imposed in the absence of any aggravating or mitigating circumstances.”  (Sandoval, supra, at pp. 849–850.)

Here, appellant was sentenced on August 28, 2009, long after the modified DSL became effective.   Accordingly, in view of Sandoval, we reject his challenge under Cunningham.

Appellant maintains that he was entitled to be sentenced under the unmodified version of the DSL effective in October 2006, when he committed the assault underlying the July 2008 conviction.   We disagree.   In Sandoval, the defendant committed murder and other offenses in February 2003, and was originally sentenced prior to Cunningham.  (Sandoval, supra, 41 Cal.4th at p. 825.)   On appeal, she relied on Cunningham, arguing that the trial court had contravened her Sixth Amendment right to a jury trial in imposing the upper term on her murder conviction.  (Sandoval, supra, at p. 831.)   Although the Supreme Court found error under Cunningham, it rejected her contention that resentencing under the modified DSL would deny her due process and contravene the prohibition against ex post facto laws.  (Sandoval, at pp. 853–857.)   The court stated:  “[T]he federal Constitution does not prohibit the application of the [modified DSL] to defendants whose crimes were committed prior to the date of our decision in the present case.”   Accordingly, appellant was properly sentenced under the modified DSL.8

Appellant maintains that Sandoval and Black are wrongly decided and that the Apprendi exception is constitutionally infirm, notwithstanding our Supreme Court's recognition of its continuing vitality in Sandoval, Black, and other recent cases (see People v. Towne (2008) 44 Cal.4th 63, 74–83).   We decline to address these contentions, as we are bound by our Supreme Court's determinations regarding these matters.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)   In sum, the trial court did not contravene appellant's right to a jury trial under the Sixth Amendment.

C. AIDS Testing Order and DNA Collection Fee

Appellant contends the sentencing minute order and abstract of judgment erroneously reflect an AIDS testing order and the imposition of a $20 DNA collection fee.   He argues that the trial court did not mandate these items in sentencing him, and that he falls outside their statutory bases.   Respondent agrees.

The sentencing minute order and abstract of judgment state that appellant must pay a $20 DNA collection fee pursuant to Government Code section 76104.7.   In addition, the abstract of judgment states that appellant was directed to submit to AIDS testing pursuant to Penal Code section 1202.1.   However, the reporter's transcript of the sentencing hearing discloses that the trial court did not issue these rulings.

The inclusion of the DNA collection fee and AIDS testing order in the sentencing minute order and abstract of judgment is erroneous.   No DNA collection fee is authorized under Government Code section 76104.7 unless other types of fees or fines are imposed upon the defendant.  (Gov.Code, § 76104.7, subd. (a).)  The only other fees and fines imposed upon appellant were a $200 restitution fine (§ 1202.4, subd. (b)), a $200 parole revocation restitution fine (§ 1202.45), a $30 court security assessment (§ 1465.8, subd. (a)(1)), and a $30 criminal conviction assessment (Gov.Code, § 70373).   None of these supports a DNA collection fee.  (Gov.Code, § 76104.7, subd. (c)(1) [restitution fines];  People v. Valencia (2008) 166 Cal.App.4th 1392, 1396 [court security assessment];  Gov.Code, § 70373, subd. (b) [criminal conviction assessment].)   Similarly, as appellant was convicted of no offense for which an AIDS testing order is authorized under Penal Code section § 1202.1, he cannot be required to undergo such testing.  (See § 1202.1, subds. (a), (e);  People v. Jillie (1992) 8 Cal.App.4th 960, 962–963.)   Accordingly, the sentencing minute order and abstract of judgment must be amended to correct these errors.

DISPOSITION

The judgment is affirmed.   The trial court is directed to prepare an amended sentencing minute order and abstract of judgment deleting the AIDS testing order (§ 1202.1) and DNA collection fee (Gov.Code., § 76104.7) (see pt.   C., ante ), and to forward a copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All further statutory citations are to the Penal Code, unless otherwise indicated..  FN1. All further statutory citations are to the Penal Code, unless otherwise indicated.

FN2. In addition, the complaint alleged that appellant had suffered a prior felony conviction (§ 667, subd. (a)(1))..  FN2. In addition, the complaint alleged that appellant had suffered a prior felony conviction (§ 667, subd. (a)(1)).

FN3. The amended information also charged appellant with the unlawful driving or taking of a vehicle owned by Nakima.  (Veh.Code, § 10851, subd. (a).)  This charge was dismissed prior to trial..  FN3. The amended information also charged appellant with the unlawful driving or taking of a vehicle owned by Nakima.  (Veh.Code, § 10851, subd. (a).)  This charge was dismissed prior to trial.

FN4. In connection with the offenses against Nakima, the amended information alleged that appellant had served one prior prison term for purposes of section 667.5, subdivision (a);  had served three prior prison terms for purposes of section 667.5, subdivision (b);  had two prior felony convictions for purposes of section 667, subdivision (a)(1);  and had two convictions for purposes of the “Three Strikes” Law (§§ 667, subds.(b)-(i), 1170. 12, subds. (a)-(d)).  At the beginning of appellant's trial, the information was amended to include an additional conviction for purposes of section 667, subdivision (a)(1), and the Three Strikes Law..  FN4. In connection with the offenses against Nakima, the amended information alleged that appellant had served one prior prison term for purposes of section 667.5, subdivision (a);  had served three prior prison terms for purposes of section 667.5, subdivision (b);  had two prior felony convictions for purposes of section 667, subdivision (a)(1);  and had two convictions for purposes of the “Three Strikes” Law (§§ 667, subds.(b)-(i), 1170. 12, subds. (a)-(d)).  At the beginning of appellant's trial, the information was amended to include an additional conviction for purposes of section 667, subdivision (a)(1), and the Three Strikes Law.

FN5. The prosecution also presented evidence regarding two prior incidents involving appellant and Nakima.   On October 9, 2006, LAPD officers responded to a radio call regarding an assault with a deadly weapon at Nakima's residence.   Nakima told the officers that she had argued with appellant during a phone conversation regarding whether she was seeing other men.   Appellant appeared at her apartment, asserted that there was another man in the house, and threatened to kill her.   He went to his vehicle, fired 10 to 12 rounds at Nakima's apartment, and drove away.   The officers found gunshot indentations outside the apartment.On October 10, 2008, LAPD Officer Manuel Sanchez responded to another radio call regarding an assault with a deadly weapon at Nakima's residence.   According to Sanchez, Nakima appeared to be pregnant.   Nakima told Sanchez that during an argument, appellant had punched her head, kicked her, and threatened to “blow her brains out.”.  FN5. The prosecution also presented evidence regarding two prior incidents involving appellant and Nakima.   On October 9, 2006, LAPD officers responded to a radio call regarding an assault with a deadly weapon at Nakima's residence.   Nakima told the officers that she had argued with appellant during a phone conversation regarding whether she was seeing other men.   Appellant appeared at her apartment, asserted that there was another man in the house, and threatened to kill her.   He went to his vehicle, fired 10 to 12 rounds at Nakima's apartment, and drove away.   The officers found gunshot indentations outside the apartment.On October 10, 2008, LAPD Officer Manuel Sanchez responded to another radio call regarding an assault with a deadly weapon at Nakima's residence.   According to Sanchez, Nakima appeared to be pregnant.   Nakima told Sanchez that during an argument, appellant had punched her head, kicked her, and threatened to “blow her brains out.”

FN6. The court stated:  “I'm giving you the upper term of four years for the following reason:  You have served prior prison time before.   You were on probation at the time this case happened[, a]nd the case involved the same victim.”.  FN6. The court stated:  “I'm giving you the upper term of four years for the following reason:  You have served prior prison time before.   You were on probation at the time this case happened[, a]nd the case involved the same victim.”

FN7. Although appellant raised no objection under the Sixth Amendment before the trial court, he may assert his contention on appeal.  (People v. French (2008) 43 Cal.4th 36, 46–48.)   However, as the trial court's selection of the upper term was a discretionary sentencing decision (People v. Sandoval (2007) 41 Cal.4th 825, 847–851 (Sandoval )), appellant has forfeited any other challenge to the ruling not raised on appeal.  (See People v. Scott (1994) 9 Cal.4th 331, 354–355.).  FN7. Although appellant raised no objection under the Sixth Amendment before the trial court, he may assert his contention on appeal.  (People v. French (2008) 43 Cal.4th 36, 46–48.)   However, as the trial court's selection of the upper term was a discretionary sentencing decision (People v. Sandoval (2007) 41 Cal.4th 825, 847–851 (Sandoval )), appellant has forfeited any other challenge to the ruling not raised on appeal.  (See People v. Scott (1994) 9 Cal.4th 331, 354–355.)

FN8. In view of Black, appellant's challenge under Cunningham would fail even if the unmodified DSL governed his sentencing, as the factors the trial court relied upon in selecting the upper term fall within the Apprendi exception or were admitted by appellant at trial..  FN8. In view of Black, appellant's challenge under Cunningham would fail even if the unmodified DSL governed his sentencing, as the factors the trial court relied upon in selecting the upper term fall within the Apprendi exception or were admitted by appellant at trial.

EPSTEIN, P. J. WILLHITE, J.