Filed 8/26/13 P. v. Bullock CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E055532
v. (Super.Ct.No. RIF10005569)
ERIC VINCENT BULLOCK, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Harry A. Staley, Judge.
(Retired judge of the Kern Super. Ct. assigned by the Chief Justice pursuant to art. VI,
§ 6 of the Cal. Const.) Affirmed.
Theresa Stevenson, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Lise Jacobson, and Collette C.
Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
1 I
INTRODUCTION
After defendant Eric Vincent Bullock was involved in an accident with a truck on
State Route 60, a jury convicted him of two Vehicle Code offenses: driving under the
influence of alcohol causing injury and driving with a blood alcohol content of .08
percent or greater causing injury. (Veh. Code, § 23153, subds. (a) and (b).) The jury also
found defendant personally inflicted great bodily injury within the meaning of Penal
Code sections 12022.7, subdivision (a), and 1192.7, subdivision (c)(8).1 The court
sentenced defendant to six years in prison.
At the scene, defendant blamed the accident on his car being rearended by another
vehicle, forcing his car into the truck. At trial, defendant claimed his car had stalled,
causing him to lose control. On appeal, defendant makes four arguments: there was
insufficient evidence for his convictions because of the possibility of a mechanical
failure; the trial court erred by not instructing the jury regarding the defense of sudden
peril; there was prosecutorial error; and the trial court erred in imposing the upper term of
three years. We reject defendant‘s appeal and affirm the judgment.
II
STATEMENT OF FACTS
A. Prosecution’s Evidence
Kevin Martin testified that he was traveling about 70 miles per hour, and using
1 The court granted a motion to strike defendant‘s 1984 serious felony prior.
2 cruise control, in the fast lane on the 60 Freeway–when a green car passed him on the left
in the adjacent car pool lane. After passing, the green car swerved and hit a big rig. The
big rig veered left, rolled over the car, and hit the median. Martin slammed on his brakes,
stopped, and waited to give a report. Defendant, the driver of the green car, emerged,
looking bewildered and shocked. The right side of the car was badly damaged.
A CHP officer, James Hefele, responded at the scene and saw ―a very badly
damaged small vehicle‖ and a semi tractor-trailer truck in the HOV lane. A passenger
was alive but trapped in the back of the car with his head bleeding heavily. Blood was
seeping out the door frame onto the concrete. The passenger had lacerations on his head,
arms, and upper torso. He was transported by ambulance to the hospital. Based on his
investigation, Officer Hefele determined the accident occurred when defendant‘s car
made an ―unsafe turning movement‖ and hit the truck‘s left front wheel.
The officer questioned defendant who said he was driving from Los Angeles to
Moreno Valley. Defendant denied using any medications or prescriptions. Defendant
indicated the car was mechanically sound but the officer did not inspect it. None of the
other witnesses mentioned mechanical problems. Defendant claimed he had been
rearended and forced into the path of the truck. No third car was involved.
Defendant smelled like alcohol and admitted drinking a couple of beers. Based on
the odor of alcohol, the driver‘s red, watery eyes, and his slow, slurred speech, Officer
Hefele suspected he was under the influence. The field sobriety tests indicated defendant
was intoxicated. Defendant‘s breath samples at the scene were .137 and .134, making
defendant under the influence.
3 The subsequent blood test at the hospital showed a blood alcohol level of .14
percent. At the time of the accident, defendant‘s blood alcohol level was .16 percent,
causing mental impairment for safe operation of a car. Defendant had to have consumed
about six and a half beers to reach those blood alcohol levels.
The injured passenger, Victor Lewis, testified that he had been friends with
defendant for 20 years. Earlier in the day they had gone to Los Angeles to pay their
respects to a friend who had died. Lewis drank three or four beers. On the way home,
Lewis was in the back seat and defendant‘s brother, Gordon was seated in front.
Defendant was sober and driving normally at a safe speed. Lewis recalled arguing with
Gordon and asking for a cigarette when the car ―went out,‖ or stalled, while it was in the
car pool lane and the big rig was in the fast lane. The car had stalled earlier that day.
During cross-examination, Lewis acknowledged that he had not disclosed the details
about stalling before trial. After the accident, Lewis was unconscious and awoke in the
hospital. His arm was broken and required surgery and he had stitches for the lacerations
to his head.
B. Defense Evidence
Defendant‘s brother, Gordon, testified while incarcerated on a charge for felony
assault. The day of the accident, defendant and Gordon picked up Lewis in Moreno
Valley and drove to Los Angeles. Gordon drank a couple of beers. Lewis drank a few
beers. Defendant did not drink alcohol. Gordon testified the car had stalled during the
course of the day but he could not recall the details.
4 On the drive home, defendant was driving normally but Lewis was making noise
in the back seat and reaching for a cigarette when the car ―cut off.‖ As Gordon turned,
talking to Lewis, the car began moving to the right. Gordon braced himself and it
appeared the truck was moving toward the car. The steering wheel seemed to be locked.
The crash knocked the car into the median wall and the truck ran over it. Gordon did not
previously mention the car stalling to the defense investigator.
Defendant testified he did not drink alcohol during the trip to Los Angeles because
he was taking medication for high blood pressure and bipolar disorder. Lewis and
Gordon were drinking at the wake. The car had problems with stalling on the way back
to Moreno Valley. Before the accident, Gordon and Lewis were squabbling. Lewis was
reaching for a cigarette when the car ―cut off‖ and veered to the right. Defendant could
not control the car by steering or braking. Defendant‘s car collided with the truck and the
truck hit the median wall. The airbag struck defendant in the face.
Defendant contradicted most of Officer Hefele‘s testimony. Defendant denied
telling the officer he had drunk some beer. Defendant also disputed that he had told the
officer he was not taking medication. He denied taking field sobriety tests. Defendant
was evasive about his claim of being rearended before the accident until, finally, he
admitted he was not rearended.
Defendant admitted he was previously arrested for driving under the influence in
2000 and 2003. He had been convicted of a domestic violence felony in 2007 or 2008.
5 III
SUFFICIENCY OF EVIDENCE
To establish a violation of Vehicle Code section 23153, three elements must be
proven beyond a reasonable doubt: (1) driving a vehicle while under the influence of an
alcoholic beverage or drug, (2) when so driving, committing some act which violates the
law or is a failure to perform some duty required by law, and (3) as a proximate result of
this violation of law or failure to perform a duty, another person was injured. (People v.
Verlinde (2002) 100 Cal.App.4th 1146.)
Defendant maintains the evidence was insufficient to establish the second element,
namely, that defendant committed an unlawful act or failed to perform a legal duty.
Defendant relies on his own testimony and the testimony of the two passengers that the
accident was caused by some failure in the vehicle. Additionally, Martin, the
independent witness, testified he had not seen any erratic driving, straddling lanes, or
excessive speeding by defendant‘s car before the accident but that defendant‘s car veered
suddenly into the fast lane. According to defendant, the testimony showed defendant had
responded to a sudden failure in his vehicle, making it inoperable and unsteerable.
Defendant relies upon the doctrine of imminent peril to assert that such evidence is
insufficient to establish either a violation of the Vehicle Code or general negligence
liability: ―A person facing a sudden and unexpected emergency situation not caused by
that person‘s own negligence is required only to use the same care and judgment that an
ordinarily careful person would use in the same situation, even if it appears later that a
different course of action would have been safer.‖ (CALCRIM No. 590; People v.
6 Boulware (1940) 41 Cal.App.2d 268, 269-270 [sudden peril defense considered where
defendant, who was under the influence of alcohol, swerved and caused a collision];
People v. Clark (1962) 202 Cal.App.2d 513, 518 [imminent peril instruction appropriate
for defense where intoxicated driver‘s sudden swerve into opposite lane collided with
truck].) Defendant argues the evidence was insufficient to prove beyond a reasonable
doubt that, in addition to driving while under the influence, defendant concurrently
committed a separate unlawful act or failed to perform a legal duty.
Defendant‘s argument, however, does not correctly apply the appellate standard of
review for sufficiency of the evidence which favors the judgment below. (People v.
Johnson (1980) 26 Cal.3d 557, 578; see also People v. Ledesma (2006) 39 Cal.4th 641,
722-723.) A reviewing court must ―presume in support of the judgment the existence of
every fact the jury could reasonably deduce from the evidence. [Citations.]‖ (People v.
Bloyd (1987) 43 Cal.3d 333, 346-347.) The question is, after drawing all inferences in
favor of the judgment, could any rational trier of fact have found defendant guilty beyond
a reasonable doubt. (Jackson v. Virginia (1979) 443 U.S. 307, 318-319.) Before a
judgment of conviction can be set aside for insufficiency of the evidence to support the
trier of fact‘s verdict, it must clearly appear that upon no hypothesis whatever is there
sufficient evidence to support it. (People v. Bolin (1998) 18 Cal.4th 297, 331.) A review
of circumstantial evidence uses the same standard as sufficiency of the evidence. (People
v. Ceja (1993) 4 Cal.4th 1134, 1138.)
Instead, defendant ignores the standard of review for sufficiency of the evidence
and asserts that the evidence was consistent with his version of events–that defendant lost
7 control of his car because of a mechanical failure. If the reviewing court finds ―that the
circumstances also might reasonably be reconciled with a contrary finding [it] would not
warrant reversal of the judgment.‖ (People v. Proctor (1992) 4 Cal.4th 499, 529.) It is
the exclusive province of the trial judge or jury to determine the credibility of a witness
and the truth or falsity of the facts on which that determination depends; the reviewing
court must give due deference to the trier of fact and not substitute its evaluation of a
witness‘s credibility for that of the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199,
1206.) A reviewing court presumes the existence of every fact in support of the judgment
that the jury ―could reasonably deduce from the evidence.‖ (People v. Bloyd, supra, 43
Cal.3d at pp. 346-347.) After having drawn all inferences in favor of the judgment, the
reviewing court then determines whether ―any rational trier of fact‖ could have found the
defendant guilty beyond a reasonable doubt. (Jackson v. Virginia, supra, 443 U.S. at pp.
318-319.)
We conclude substantial evidence supports the jury‘s finding that defendant
violated the law or failed to perform a legal duty. The jury was instructed on violations
of (1) Vehicle Code section 22348, exceeding the speed limit; (2) Vehicle Code section
22107, making an unsafe turn; (3) Vehicle Code section 24002, operating an unsafe
vehicle; and (4) Vehicle Code section 21655.8, making an improper exit from a carpool
lane. The prosecution also alleged that defendant failed to exercise ordinary care at all
times and failed to maintain proper control of his vehicle. The jury was required to find
that defendant committed at least one illegal act or failed to perform at least one duty, and
8 that the jurors must agree on which act was committed or which legal duty defendant
failed to perform.
Martin testified the posted speed limit was 65 miles per hour and that he was
driving 70 miles per hour when defendant passed him. Thus, defendant was exceeding
the speed limit. Additionally, defendant‘s car swerved out of the carpool lane and, in
Officer Hefele‘s opinion, defendant‘s unsafe turn caused the collision. Substantial
evidence therefore supported that defendant both made an unsafe turn and an improper
exit from the carpool lane.
The testimony at trial about defendant‘s car stalling was refuted by other evidence.
The investigating officer concluded that defendant‘s intoxication caused him to make an
unsafe turning movement. At the scene, defendant said the car did not have mechanical
problems and he blamed the accident on another car. The jury could reasonably have
concluded that defendant‘s statements at the scene were more credible than his testimony
at trial. A rational jury could also have concluded that defendant‘s actions violated
Vehicle Code section 24002 if he failed to exercise ordinary care by driving an unsafe
vehicle.
Substantial evidence therefore supports the jury‘s findings and defendant‘s
convictions for driving under the influence causing injury and driving with a blood
alcohol content greater than .08 percent.
9 IV
INSTRUCTION ON THE DEFENSE OF SUDDEN PERIL
In a related argument, defendant contends the trial court erred by not instructing
the jury about sudden peril based on CALCRIM No. 590: ―A person facing a sudden and
unexpected emergency situation not caused by that person‘s own negligence is required
only to use the same care and judgment that an ordinarily careful person would use in the
same situation, even if it appears later that a different course of action would have been
safer.‖ Defendant submits that such an instruction on the standard of care in the face of
sudden peril was supported by the evidence presented at trial and not giving the
instruction prejudicially lessened the People‘s burden of proof in violation of defendant‘s
state and federal constitutional rights of due process.
The Benchnotes for CALCRIM No. 2100 (driving under the influence causing
injury), state, ―On request, if supported by the evidence, the court must instruct on the
‗imminent peril/sudden emergency doctrine. [Citation.] The court may use the bracketed
instruction on sudden emergency in CALCRIM No. 590, . . .‖ In this case, defense
counsel did not request the pinpoint instruction and there was no sua sponte duty to give
the instruction. (People v. Saille (1991) 54 Cal.3d 1103, 1117.)
Furthermore, not giving the instruction was either harmless or not prejudicial. The
trial court did give an instruction sua sponte on accident; CALCRIM No. 3404 states:
―The defendant is not guilty of Driving under the influence causing injury nor driving
with a blood alcohol level above the legal limit causing injury if he acted or failed to act
without the general intent required for that crime, but acted instead accidentally. You
10 may not find the defendant guilty of those two crimes unless you are convinced beyond a
reasonable doubt that he acted with the required general intent.‖ In light of the
substantial evidence that defendant committed several Vehicle Code violations while
driving drunk, it is not reasonably probable that defendant could have achieved a
different outcome with an instruction on sudden peril. (People v. Watson (1956) 46
Cal.2d 818, 836; People v. Holt (1997) 15 Cal.4th 619, 703.) Therefore, defendant‘s
alternative claim for ineffective assistance of counsel fails because the representation
defendant received was not legally deficient. (People v. Ledesma (1987) 43 Cal.3d 171,
217-218.)2
V
PROSECUTORIAL ERROR
Defendant next challenges the prosecutor‘s rebuttal argument to the jury. The
prosecutor criticized the length of defense counsel‘s closing argument: ―[I]f you have a
defense that points to a legitimate fact in evidence, it doesn‘t take three hours to
explain. . . . But it does take three hours to try and convince twelve people who know
that a man is guilty that maybe he‘s not. [¶] . . . [¶] Don‘t fall for it, okay.‖ The
prosecutor then told the jury that ―[b]eyond a reasonable doubt means enough evidence to
make guilt reasonable and innocence unreasonable,‖ a formulation the court agreed was
wrong and warranted a limiting instruction to the jury. In discussing the evidence, the
prosecutor said, ―If you‘re charged with driving under the influence causing injury, what
2We reject defendant‘s strained argument that the jury‘s query about the effect of defendant‘s medications had any bearing on the issue of sudden peril.
11 does that mean? It means you got in an accident where somebody got hurt. It‘s not the
big rig‘s fault.‖ He elaborated about reasonable doubt, ―Let‘s talk about why it‘s not
reasonable for you to believe the car shut off. There‘s literally no evidence to support it.
They don‘t have to produce anything. But if they are going to argue it, you have nothing
at all, zero —.‖ He further argued, ―Mr. Jones [defense counsel] made a comment a few
minutes ago, testimony is evidence. If you believe it, okay‖ but then the prosecutor
accused defendant, his brother, and his friend of lying. While the defense repeatedly
objected–and the court sustained some of those objections—the court admonished the
jury only once that what the attorneys say in closing argument is ―just argument. In the
end, you are to rely on the facts as you determine them and follow the law as it is stated
to you.‖
A summary of defendant‘s argument is that the prosecutor committed misconduct
by repeatedly misstating the burden of proof and implying that the jury should find
appellant guilty because defendant had not provided affirmative, physical evidence to
prove the mechanical defect in the vehicle. The prosecutor‘s implication that the defense
had failed to meet a burden to prove a defense through physical or other tangible
evidence had the overall cumulative effect of depriving defendant of his constitutional
rights to a fair trial.
Prosecutorial misconduct is the use of a trial tactic by a prosecutor that wrongly
persuades a jury to render a verdict independent of the properly admitted trial evidence.
(People v. Hill (1998) 17 Cal.4th 800, 822-823.) Comments on the state of the evidence
or on the defense‘s failure to call witnesses, introduce evidence, or rebut the People‘s
12 case are generally permissible. (People v. Medina (1995) 11 Cal.4th 694, 755.) A
prosecutor may not suggest that ―‗a defendant has a duty or burden to produce evidence,
or a duty or burden to prove his or her innocence.‘‖ (People v. Woods (2006) 146
Cal.App.4th 106, 112.) A prosecutor‘s misstatement of the reasonable doubt standard
constitutes prosecutorial misconduct. (People v. Katzenberger (2009) 178 Cal.App.4th
1260, 1269.) Prosecutorial misconduct can occur without bad faith. (Hill, at p. 821.)
A prosecutor‘s conduct violates the federal Constitution only if it is so egregious,
and infects the trial with such unfairness, that the resulting conviction is a denial of due
process. (People v. Smithey (1999) 20 Cal.4th 936, 960.) Conduct that does not
constitute such fundamental unfairness is misconduct under state law only if it involves
―‗―the use of deceptive or reprehensible methods to attempt to persuade . . . the jury.‖‘‖
(People v. Benavides (2005) 35 Cal.4th 69, 108.) During closing argument a party has
broad discretion to argue the evidence vigorously and to comment on reasonable
inferences that may be drawn therefrom. (See People v. Bemore (2000) 22 Cal.4th 809,
846.) To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the
defendant must show not only prejudice but also a reasonable likelihood the jury
understood or applied the complained-of comments in an improper or erroneous manner.
(See People v. Ayala (2000) 23 Cal.4th 225, 283-284; People v. Frye (1998) 18 Cal.4th
894, 970.)
Applying the foregoing principles, we do not find any prejudicial prosecutorial
error. The prosecutor‘s several comments about the weakness of defendant‘s case were
not improper. (People v. Bradford (1997) 15 Cal.4th 1229, 1339-1340; People v.
13 Medina, supra, 11 Cal.4th at p. 755.) As a general rule, prosecutors may comment
during closing argument on a defendant‘s failure to present exculpatory evidence without
erroneously implying that the defendant bears the burden of proof. (People v. Lewis
(2004) 117 Cal.App.4th 246, 256-257; Medina, at p. 755.) Here, the prosecutor properly
commented on the state of the evidence without shifting the burden of proof or implying
any ―duty‖ on the part of the defense to produce witnesses or other evidence.
Regarding the prosecutor‘s inartful formulation of ―beyond a reasonable doubt,‖ it
is presumed that arguments of counsel are viewed by the jury as the statements of an
advocate attempting to persuade and carry less weight than do instructions from the court.
(Boyde v. California (1990) 494 U.S. 370, 384; People v. Seaton (2001) 26 Cal.4th 598,
646.) The trial court‘s admonishment to the jury to follow the instructions as given by
the court was sufficient to cure any possible prejudice. (See People v. Montiel (1993) 5
Cal.4th 877, 937-938.) The jury is presumed to have understood and followed the court‘s
instructions. (People v. Medina, supra, 11 Cal.4th at p. 745; People v. Boyette (2002) 29
Cal.4th 381, 436.)
Finally, the prosecution was allowed to question the credibility of the defense
evidence presented at trial: ―The prosecutor is permitted to urge, in colorful terms, that
defense witnesses are not entitled to credence [and] to argue on the basis of inference
from the evidence that a defense is fabricated, . . .‖ (People v. Pinholster (1992) 1
Cal.4th 865, 948.)
Even assuming the prosecutor‘s remarks could be construed as improper, they did
not involve ―‗―the use of deceptive or reprehensible methods to attempt to persuade . . .
14 the jury.‖‘‖ (People v. Benavides, supra, 35 Cal.4th at p. 108.) There is also no
reasonable likelihood the jury understood or applied the prosecutor‘s remarks in an
improper or erroneous manner. (See People v. Ayala, supra, 23 Cal.4th at pp. 283, 284.)
It is not reasonably probable defendant could have achieved a more favorable result
absent the subject comments. (See People v. Pigage (2003) 112 Cal.App.4th 1359,
1375.) The trial court explained to the jury that the burden of proof rested with the
prosecution and instructed the jury on the reasonable doubt standard, that the statements
of counsel do not constitute evidence, and that, if the attorney‘s comments conflicted
with the law, the jury was to follow the court‘s instructions. There is no reasonable
likelihood the jury construed or applied any of the prosecutor‘s remarks in an
objectionable fashion. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) The
prosecutor‘s remarks did not constitute prejudicial misconduct warranting reversal.
(People v. Ervin (2000) 22 Cal.4th 48, 101.)
VI
THE UPPER TERM SENTENCE
The trial court imposed the upper term and a consecutive sentence for the great
bodily injury enhancement, resulting in a total sentence of six years. The court denied
probation and imposed an upper term sentence of three years for violating Vehicle Code
section 23153, subdivision (a), with a consecutive term of three years for the great bodily
injury enhancement, pursuant to Penal Code section 12022.7, subdivision (a). Defendant
contends the court abused its discretion by not properly considering aggravating and
15 mitigating factors. (People v. Sandoval (2007) 41 Cal.4th 825, 847; Cal. Rules of Court,
rule 4.410(a).)
Under Penal Code section 1170, subdivision (b), ―[w]hen a judgment of
imprisonment is to be imposed and the statute specifies three possible terms, . . . [t]he
court shall set forth on the record the reasons for imposing the term selected and 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.‖ The trial court is ―required to specify
reasons for its sentencing decision.‖ (People v. Sandoval, supra, 41 Cal.4th at pp. 846-
847.) The court is not required ―to cite ‗facts‘ that support its decision or to weigh
aggravating and mitigating circumstances.‖ (Sandoval, at p. 847.) Nevertheless,
defendant maintains the court improperly relied on the 1984 prior strike conviction that
the court dismissed pursuant to Penal Code section 1385. We conclude the trial court did
not abuse its discretion in imposing the upper term.
Defendant did not raise an objection below so this issue has been waived. (People
v. Gonzalez (2003) 31 Cal.4th 745, 751-756.) But, in any event, the trial court
appropriately imposed the upper term because the trial court‘s reasons adequately support
the upper term: ―[A] trial court is free to base an upper term sentence upon any
aggravating circumstance that the court deems significant, subject to specific
prohibitions. (See, e.g., Cal. Rules of Court, rule 4.420(c) [fact underlying an
enhancement may not be used to impose the upper term unless the court strikes the
enhancement]; id., rule 4.420(d) [fact that is an element of the crime may not be used to
impose the upper term].) The [trial] court‘s discretion to identify aggravating
16 circumstances is otherwise limited only by the requirement that they be ‗reasonably
related to the decision being made.‘ (Cal. Rules of Court, rule 4.408(a).)‖ (People v.
Sandoval, supra, 41 Cal.4th at p. 848.) As defendant recognizes, a single aggravating
factor will support an upper term sentence. (People v. Osband (1996) 13 Cal.4th 622,
728, 732; People v. Black (2007) 41 Cal.4th 799, 813; Cal. Rules of Court, rule 4.420(b).)
The fact that a sentencing allegation is stricken under section 1385 ―‗is not the
equivalent of a determination that [the] defendant did not in fact suffer the conviction.‘‖
(People v. Garcia (1999) 20 Cal.4th 490, 496, 499.) Even after a court strikes or
dismisses a prior conviction allegation, ―the [prior] conviction remains part of the
defendant‘s personal history, and a court may consider it when sentencing the defendant
for other convictions, including others in the same proceeding.‖ (Id. at p. 499; see also In
re Varnell (2003) 30 Cal.4th 1132.) The trial court‘s ability to dismiss a criminal action
―in furtherance of justice‖ does not authorize it to strike facts that need not be charged or
alleged, such as the sentencing factors that guide the court‘s decisions whether to grant
probation or to select the upper, middle or lower term for an offense. (People v. Lara
(2012) 54 Cal.4th 896, 900-901.)
In Varnell, the trial court ruled that dismissal of a prior had not eliminated ―the
fact of the prior conviction.‖ (In re Varnell, supra, 30 Cal.4th at p. 1135.) The Supreme
Court reversed the Court of Appeal, stating that the dismissal of a charged prior
conviction is not a ―‗determination that defendant did not in fact suffer the conviction‘‖
and that the trial court lacked the power to disregard a ―sentencing factor‖ that rendered
the defendant ineligible for Proposition 36 sentencing. (Varnell, at p. 1138.) The
17 Supreme Court further held that because the denial of probation under Proposition 36 did
not increase the defendant‘s penalty, his prior conviction was not a matter that had to be
pleaded and proven. (Varnell, at pp. 1141-1142.)
Applying Varnell‘s analysis to the present case, the fact that defendant‘s prior
conviction was stricken under Penal Code section 1385, did not preclude the trial court
from considering the conviction and relying on that conviction, along with defendant‘s
other criminal history, in selecting the upper term. Here, the prosecution alleged that
defendant had suffered a prior strike conviction for robbery, a serious and violent felony.
At sentencing, the trial court dismissed the prior conviction allegation pursuant to People
v. Superior Court (Romero) (1996) 13 Cal.4th 497. The trial court cited defendant‘s
criminal history, including two separate 1984 convictions for assault with a deadly
weapon and robbery, a 2005 conviction for driving under the influence and driving with a
revoked or suspended license, a 2008 conviction for domestic violence, and another 2008
conviction for possession of ammunition.
As noted, a trial court may base an upper term sentence upon any aggravating
circumstance that the court deems significant, subject to certain prohibitions. The court‘s
discretion to rely on and identify aggravating circumstances is otherwise limited only by
the requirement that they be reasonably related to the decision being made. (People v.
Sandoval, supra, 41 Cal.4th at p. 848.) Here, defendant‘s numerous prior convictions, in
addition to the prior strike that was dismissed, were appropriate factors the court could
rely on in imposing the upper term. Contrary to defendant‘s argument, the court did not
rely only upon defendant‘s prior prison term.
18 The trial court‘s sentencing decision was ―not arbitrary and capricious,‖ was
―consistent with the letter and spirit of the law,‖ and was based upon an ―‗individualized
consideration of the offense, the offender, and the public interest.‘‖ (People v. Sandoval,
supra, 41 Cal.4th at p. 847.)
VII
DISPOSITION
Sufficient evidence supports defendant‘s convictions. There was no prejudicial
instructional, prosecutorial, or sentencing error.
We affirm the judgment.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
RAMIREZ P. J.
KING J.