Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County Super. Ct. No. MF006782A. Kenneth C. Twisselman II, Michael Bush and James M. Stuart, Judges.
Judge Twisselman conducted the trial; Judges Bush and Stuart conducted the in-camera hearings.
Richard Power, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Michael P. Farrell, Assistant Attorney General, Michael A. Canzoneri and Charles A. French, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
Gomes, J.
After repeatedly disobeying orders to return to his cell, Kareem Lamar Brown inflicted several blows to a prison correctional officer’s head. A jury found him guilty of a felony assault and a felony battery. On appeal, he raises one discovery issue, one instructional issue, and two sentencing issues. We affirm the judgment.
BACKGROUND
On April 15, 2005, the district attorney filed an information charging Brown with a felony assault – assault with malice aforethought by a life prisoner on another person by means of force likely to produce great bodily injury (Pen. Code, § 4500) – and a felony battery – battery by a prisoner on a non-prisoner (§ 4501.5) – on October 14, 2004. The information alleged personal infliction of great bodily injury in the commission of both crimes (§ 12022.7, subd. (a)) and a 1997 conviction of second-degree murder (§ 187, subd. (a)) as a serious felony prior (§§ 667, subd. (a)(1), 1192.7, subd. (c)(1)) within the scope of the three strikes law (§§ 667, subds. (b)-(j), 1170.12, subds. (a)-(d)).
Later statutory references are to the Penal Code.
On April 1, 2008, a jury found Brown guilty of both crimes, found both allegations of personal infliction of great bodily injury true, and found the allegation of a second-degree murder prior true within the scope of the three strikes law. On June 13, 2008, the court imposed a term of life without the possibility of parole for nine years doubled to 18 years on the assault (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1), 4500) plus a consecutive three-year term for the great-bodily-injury enhancement (§ 12022.7, subd. (a)) and imposed and stayed a doubled six-year (middle) term on the battery (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1), 4501.5) plus a consecutive three-year term for the great-bodily-injury enhancement (§ 12022.7, subd. (a)).
At the time of the assault and battery, Brown was serving his sentence on his strike prior (15-to-life for second-degree murder plus five years for personal use of a firearm). (§ 187, subd. (a); former § 12022.5, subd. (b)(1).) His new sentence is fully consecutive to that sentence.
ISSUES ON APPEAL
Brown challenges the court’s rulings (1) denying his request for a provocation instruction, (2) doubling the statutory time for parole eligibility on the assault, and (3) declining to strike his strike prior. Finally, (4) Brown requests, the Attorney General agrees, and we concur that we review documents and rulings at five in-camera discovery hearings to determine whether the court committed an abuse of discretion in violation of his right to due process.
DISCUSSION
1. Provocation Instruction
Brown argues that the court’s denial of his request for a provocation instruction was prejudicial error. The Attorney General argues the contrary.
First, we turn to the evidence at trial. Michael Lippert, a correctional officer at California Correctional Institution in Tehachapi (CCI), called Craig Terry, a correctional officer working the control room at CCI, to let him know which inmates to let out for doctor’s appointments. One was Brown’s cell mate, whom Terry so informed on the public address system. After giving him time to get ready, Terry opened the cell door, but Brown stepped out instead. On the public address system, Terry ordered him to return to his cell, but he did not, so Terry called Lippert and told him, “Brown was out on the tier and would not return to his cell.”
From downstairs, Lippert “repeatedly asked [Brown] to lock up,” but his response was “negative.” Brown, “quite agitated,” started “swearing” at Lippert. Watching Lippert and Brown talk to each other, Terry saw Brown “throw his arms up in like a defiant manner, like he was refusing a direct order.” On the public address system, Terry ordered Brown “to return to his cell” four or five times, but he did not comply. Lippert walked upstairs to “order him to lock up” and pointed his pepper spray at him “in case [he] needed to use it.”
Once he was upstairs, Lippert saw Brown facing him in “a bladed stance, slightly skewed from facing you straight on, one foot slightly in front of the other. And his arms were down to his sides, slightly bent,” and his fists were “clenched” in a fighting stance. Lippert fired his pepper spray. Brown charged him and struck “three to four heavy blows” to his head. Lippert lost consciousness.
From the control room, Terry saw Brown “striking [Lippert] about the face and chest” a total of about 10 times, some before he fell, some after he fell. After Lippert fell, Brown straddled him and kept striking him in the face until a rubber bullet Terry fired hit him in the lower back. Brown immediately stopped the assault and, after glancing behind him, looked at Terry in the control room and ran back into his cell.
Testifying in his own defense, Brown acknowledged leaving his cell and not going back inside even after Lippert “continued to give [him] direct orders to go back into the cell.” The prison was on lock down, racial wars were in progress, and he was concerned for his and his cell mate's safety. Brown told Lippert he would go back into his cell as soon as his cell mate left the cell. Lippert told him he needed to lock up or his cell mate would not see the doctor. Brown told Lippert he did not care if his cell mate saw the doctor. Saying he would spray Brown and lock him up if he did not lock up voluntarily, Lippert “pointed his pepper spray” at him, “took a defensive stance,” and again told him to lock up. Brown again told Lippert he would go back into his cell as soon as his cell mate left the cell. Lippert pepper sprayed him. Brown “automatically respond[ed] in self-defense,” striking him “four to five times” “real hard” “with clenched fists.” After Lippert lost consciousness and fell, Brown did not touch him again. He never got on top of him.
Next, we turn to the instructions. During the instructional colloquy, Brown requested modification of CALJIC No. 8.42 (“Sudden Quarrel or Heat of Passion and Provocation Explained”) to help the jury understand the concept of provocation. The prosecutor, on the other hand, asked the court to modify CALJIC No. 5.17 (“Actual but Unreasonable Belief in Necessity to Defend – Manslaughter”) to explain to the jury how malice aforethought can be negated by proof of sufficient provocation or actual but unreasonable self-defense in a non-homicide case. The court observed that the use note to CALJIC No. 7.35 (“Assault by Life Prisoner with a Deadly Weapon or by Means of Force Likely to Produce Great Bodily Injury with Malice Aforethought”) states that “CALJIC [No.] 5.17 or [CALJIC Nos.] 8.42 through 8.44” can be modified “to show how malice aforethought can be negated.” (Italics added.) CALJIC No. 5.17, the prosecutor argued, was “more on point with the facts.”
Noting that “there is no evidence to support a sudden quarrel or heat of passion,” the court commented, “The evidence in this case that the defense would be arguing to the jury would be the necessity for self-defense. Correct?” Brown replied, “Yes.” After a brief dialogue, the court said, “So I don’t see this as a sudden quarrel or heat of passion case. [¶] Do you agree, Mr. Brown?” He replied, “Yes.” The court observed that “[CALJIC No.] 8.42 goes into more detail about sudden quarrel or heat of passion and provocation” and characterized CALJIC No. 5.17 as “actually the more appropriate instruction to use, because this is an issue of self-defense. And whether it’s perfect self-defense or imperfect self-defense, that’s your theory. Correct, Mr. Brown?” He replied, “Yes.” Working together, the court, the prosecutor, and Brown modified CALJIC No. 5.17 both as to title (“Actual but Unreasonable Belief in Necessity to Defend”) and as to text (with the court instructing the jury as follows):
A person who assaults another person in the actual but unreasonable belief in the necessity to defend against imminent peril to life or great bodily injury assaults unlawfully but does not harbor malice aforethought. This would be so even though a reasonable person in the same situation seeing and knowing the same facts would not have had the same belief.
“As used in this instruction, an ‘imminent’ peril means one that is apparent, present, immediate and must be instantly dealt with, or must so appear at the time to the person who assaults.
However, this principle is not available, and malice aforethought is not negated, if the defendant by his unlawful or wrongful conduct created the circumstances which legally justified his adversary’s use of force.”
Now we turn to the law. The rule is settled that in a criminal case the court must instruct on the general principles of law that are relevant to the evidentiary issues, that are closely and openly connected with the facts before the court, and that are necessary for the jury’s understanding of the case. (People v. Breverman (1998) 19 Cal.4th 142, 154; People v. Barton (1995) 12 Cal.4th 186, 195, fn. 4.) The court’s analysis of the evidence, engagement in dialogue with the parties about the provocation instruction and the self-defense instruction, and choice of the self-defense instruction with appropriate modification show a careful discharge of the court’s duties. The record shows no error.
2. Doubling of Statutory Time for Parole Eligibility
Brown argues that the court’s doubling of the statutory time for parole eligibility on the assault was prejudicial error. The Attorney General argues the contrary.
Although the statute defining the assault authorizes a term of life without the possibility of parole for nine years (§ 4500), the three strikes law provides that, “in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has a prior felony conviction: [¶] (1) If a defendant has one prior felony conviction that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction” (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)). On the authority of the three strikes law, the court imposed a life term on the assault without the possibility of parole not for nine years but for 18 years. (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1), 4500.)
Brown observes, “There is no way a prisoner could already be serving a life sentence without having been previously convicted of a serious or violent felony,” on which basis he argues that he is being punished twice – under section 4500 and under the three strikes law – due to “the same fact – the fact of his prior serious or violent felony conviction.” That, he argues, is a double jeopardy violation that denies him due process.
Brown’s primary authority for his argument is North Carolina v. Pearce (1969) 395 U.S. 711 (Pearce), overruled on another ground by Alabama v. Smith (1989) 490 U.S. 794, 803. He argues that Pearce prohibits the imposition of multiple punishment for the same offense. (See Pearce, supra, at p. 717.) The flaw in his argument is that his punishment is not for the second-degree murder he committed in 1995 but for the assault he committed in 2004. Recidivist statutes do not impose a second punishment for a first offense in violation of the double jeopardy clause. (People v. White Eagle (1996) 48 Cal.App.4th 1511, 1520 (White Eagle), citing Moore v. Missouri (1895) 159 U.S. 673, 677.) Likewise, the double jeopardy clause does not prohibit the imposition of multiple punishment for the same offense if the Legislature authorizes multiple punishment. (White Eagle, supra, 48 Cal.App.4th at p. 1520, citing Missouri v. Hunter (1983) 459 U.S. 359, 366 (Hunter).)
In People v. Garcia (2001) 25 Cal.4th 744 (Garcia), our Supreme Court rejected a challenge to the use of a strike prior both to prove an element of a crime and to double a sentence under the three strikes law. (Id. at p. 756.) The court held that the “plain and unambiguous language” of the law “discloses an intent to impose the enhanced, doubled sentence despite a possible ‘dual use’ of defendant’s prior conviction.” (Id. at p. 757; see §§ 667, subd. (e)(1), 1170.12, subd. (c)(1).) “Notwithstanding any other provision of law, this section shall be applied in every case in which a defendant has a prior felony conviction as defined in this section.” (Garcia, supra, at p. 757, citing § 1170.12, subd. (d)(1), italics added; see § 667, subd. (f)(1).) “This absolute language permits only the interpretation that the Legislature intended more severe punishment for recidivist felons, regardless of whether a prior conviction is a component of their current felony. Even if such punishment can be considered cumulative, it survives constitutional challenge due to the legislative authorization.” (People v. Sipe (1995) 36 Cal.App.4th 468, 489, citing Hunter, supra, 495 U.S. at pp. 368-369.) We reject Brown’s argument to the contrary.
3. Striking of Strike Prior
Brown argues that the court committed an abuse of discretion by declining to strike his strike prior. The Attorney General argues the contrary.
Before sentencing, Brown filed a request that the court strike his strike prior. He emphasized that he was 15 years old when he suffered his strike prior and that the probation officer “did not attempt to illicit [sic] any information on [his] background or upbringings [sic].” The prosecutor filed a written opposition. He stressed that in response to “a two-second burst of pepper spray” Brown inflicted “a severe beating” that caused life-threatening injuries and that even if he initially felt he was acting in self-defense the perceived threat was over after he landed his first punch, so there was no justification for continuing the attack and beating the helpless officer “nearly to death.”
At the ensuing hearing, the court observed that Brown was incarcerated in state prison for the entire time from conviction of his strike prior to commission of the assault and that the “lack of criminal behavior in custody does not have as much weight as the lack of criminal behavior while out of custody as a free member of society.” The court agreed with the prosecutor that Brown showed “a great deal of maturity during the trial” and represented himself “very capably” at trial. Nonetheless, the court found him neither in whole nor in part outside the spirit of the three strikes law and declined to strike his strike prior.
The deferential abuse of discretion standard of review governs the court’s ruling. (People v. Carmony (2004) 33 Cal.4th 367, 371 (Carmony); People v. Superior Court (Romero)(1996) 13 Cal.4th 497; § 1385.) Two fundamental precepts guide our review. First, the party challenging the sentence has the burden of clearly showing the sentencing decision was irrational or arbitrary. (Carmony, supra, at p. 376.) In the absence of the requisite showing, we will presume the court acted to achieve legitimate sentencing objectives and will allow the sentencing decision to stand. (Id. at pp. 376-377.) Second, as we have no authority to substitute our judgment for the court’s judgment, we cannot reverse a sentencing decision merely because reasonable people might disagree. (Id. at p. 377.) “Taken together, these precepts establish” that no abuse of discretion occurs unless the sentencing decision “is so irrational or arbitrary that no reasonable person could agree with it.” (Ibid.)
Since all discretionary authority is contextual, we look to the legal principles and policies germane to the court’s ruling. (Carmony, supra, 33 Cal.4th at p. 377.) The intent of the three strikes law was to restrict the discretion of the courts in sentencing repeat offenders. (Ibid.) The three strikes law does not offer a discretionary sentencing choice, as do other sentencing laws, but establishes a sentencing norm, carefully circumscribes the power of the courts to depart from the norm, requires an explicit justification of any ruling that departs from the norm, and creates a strong presumption that any sentence conforming to the norm is rational and proper. (Id. at pp. 377-378.) The court’s ruling declining to strike Brown’s strike prior was not an abuse of discretion.
4. In Camera Discovery Hearings
Brown requests, the Attorney General agrees, and we concur that we review documents and rulings from five in-camera discovery hearings – one on January 26, 2006, one on February 1, 2006, two on March 23, 2006, and one on March 30, 2006 – to determine whether the court’s rulings constituted an abuse of discretion in violation of his right to due process. We have conducted the requested review, have applied the relevant law, and have determined that the record shows no error. (See, e.g., Brady v. Maryland (1963) 373 U.S. 83; People v. Mooc (2001) 26 Cal.4th 1216; Pitchess v. Superior Court (1974) 11 Cal.3d 531.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: Wiseman, Acting P.J., Cornell, J.