Opinion
E066263
06-15-2018
THE PEOPLE, Plaintiff and Respondent, v. LAWRENCE JOHN CARRUTHERS, Defendant and Appellant.
Jean F. Matulis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christine Friedman, and Steve T. Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FMB1500542) OPINION APPEAL from the Superior Court of San Bernardino County. Rodney A. Cortez, Judge. Affirmed. Jean F. Matulis, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Christine Friedman, and Steve T. Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
The People's and defendant's motions for judicial notice, filed on June 23, 2017, and August 7, 2017, respectively, are granted. (Evid. Code, §§ 452, 459; Cal. Rules of Court, rule 8.252.)
Defendant and appellant, Lawrence John Carruthers, appeals from the judgment entered following a jury conviction for rape of an unconscious person. (Pen. Code, § 261, subd. (a)(4).) In a bifurcated trial, the jury also found true a prior strike conviction for violating section 192, subdivision (b) (involuntary manslaughter) with a personal weapon use enhancement (§ 12022.5), which subjected defendant to a two-strike sentencing (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i)). In addition, the jury found true a prior serious felony enhancement (§§ 192(b), 667, subd. (a)(1)), and a prior prison term enhancement (§§ 459, 667.5, subd. (b)). The trial court sentenced defendant to 22 years in prison.
Unless otherwise noted, all statutory references are to the Penal Code.
Referred to herein as section 192(b).
Referred to herein as section 667.5(b).
Defendant contends his rights to due process and a fair trial were violated based on the following trial court errors: (1) The trial court did not fully readvise him of the risks of representing himself after the court granted the prosecution's motion to amend the information, (2) the trial court abused its discretion in granting the prosecution's motion to amend the information, and (3) the trial court abused its discretion by imposing the maximum term, based on defendant's lack of remorse. We conclude the trial court did not commit prejudicial error or violate defendant's rights to due process or a fair trial, and therefore affirm the judgment.
II
FACTS
On August 31, 2015, defendant visited M.W., her adult daughter, Z.W., and her son, J.A., who were loading a truck to move the following day. M.W. and defendant had been friends for about 15 years. M.W. was 50 years old. For the past 12 years, M.W. had been confined to a wheelchair, after contracting meningitis, causing her to become paralyzed from the waist down. She had not been in a sexual relationship since suffering from paralysis.
Defendant offered to help load the truck in exchange for $5 to buy beer. After receiving the money, defendant purchased the beer and returned to M.W.'s to drink it. While drunk, defendant began talking to M.W. like he was her boyfriend. M.W. told him to stop it or she would throw him out. By 9:00 p.m., M.W. was exhausted. She took sleeping medication, as she often did, and when it started to take effect, told everyone she was going to bed. She fell asleep in her bedroom, wearing a T-shirt or nightgown and diaper briefs. M.W. had never invited defendant into her room, and he had never entered. Because defendant was drunk, he was permitted to sleep on the floor in the den.
Later that night, while J.A. and defendant were watching television in the den, defendant said he was going into M.W.'s room. J.A. told defendant, "Don't go in there." Defendant went into M.W.'s room. Meanwhile, J.A. fell asleep.
Sometime after midnight, Z.W. awoke to use the bathroom. She noticed her mother's bedroom door was closed. She thought this was odd because M.W. could not shut the door herself. Z.W. knocked on the door. There was no answer. She asked J.A., who was in the den alone, where defendant was. J.A. shrugged. Z.W. called her older brother, R. While he was on the phone with her, Z.W. unlocked M.W.'s bedroom door with a key. As Z.W. entered, defendant got up from M.W.'s wheelchair. Defendant claimed he was in M.W.'s room watching television, but later on, defendant said the door was locked because he was sleeping with M.W. Z.W. tried to awaken M.W. She mumbled something but appeared to be sleeping. R., who was on the speakerphone, told defendant to leave. Defendant angrily rambled that they were not allowing him to love M.W. Defendant left M.W.'s room, got his beer, and opened the front door. Z.W. thought defendant was leaving, and went back to bed. Right after Z.W. returned to her room, J.A. saw defendant return to M.W.'s room and lock the door. J.A. fell asleep, assuming Z.W. would take care of the matter.
M.W. testified she woke up at least twice that night, finding defendant in her room. On one occasion, she found defendant sitting behind her with one hand down her diaper. She believed he had his fingers in her vagina but was uncertain because of a lack of sensation from paralysis. M.W. told defendant to get the ". . ." out of her bed. Defendant stood up, put his clothes on, and left M.W.'s room. M.W. went back to sleep.
On the second occasion, M.W. awoke to find defendant had pulled down his clothes, torn her diaper open, repositioned her legs, and was "humping" her from behind. M.W. tried but was unable to turn over. She told defendant to get up. Defendant began masturbating. M.W. believed defendant had penetrated her vagina but she could not be certain because of her paralysis. As a ruse, M.W. told defendant to get J.A. because he needed to get ready for school. When J.A. entered her room, M.W. whispered to him, "He raped me." J.A. told defendant to leave and then called the police. J.A. told the police M.W. had been sexually assaulted.
After deputies from the San Bernardino County Sheriff's Department arrived, defendant returned. He appeared intoxicated. Sergeant Wilson recorded his conversation with defendant. Defendant said he spent the night at M.W.'s, woke up the next morning, got the kids ready for school, and "That's it." Defendant told Sergeant Wilson, "N-nothing happened between me and [M.W.]" After Sergeant Wilson gave defendant his Miranda rights, defendant repeated what he had just said, and added, "Nothing else happened." Defendant added that he "had no sexual contact . . . at all." At the end of the interview, Sergeant Wilson arrested defendant.
Miranda v. Arizona (1966) 384 U.S. 436.
M.W. underwent a sexual assault examination at the hospital. She was found to have injuries consistent with blunt force trauma from recent sexual penetration. A DNA sample taken from defendant's penis showed a mixture of DNA consistent with DNA from both M.W. and defendant. According to expert testimony, there was a 1 in 9.7 quintillion chance that the sample would match a random African-American, such as M.W. No male DNA was found in M.W.'s vagina, in her rectum, or on her breasts. The male DNA found on a vulvar swab was insufficient for the criminalist to determine a DNA profile.
III
WAIVER OF RIGHT TO COUNSEL
Defendant contends that, when the trial court granted the prosecution's request to amend the information, the trial court violated his rights to due process and a fair trial by not readvising him of his right to counsel, including advising him of the risks and complexities of his case. Specifically, defendant argues that the trial court failed to inform him that, as a consequence of the People amending the information, defendant was facing a maximum penalty of 22 years, instead of 11 years.
The following principles are applicable to reviewing a Faretta waiver of the right to counsel: "'A criminal defendant has a right, under the Sixth Amendment to the federal Constitution, to conduct his own defense, provided that he knowingly and intelligently waives his Sixth Amendment right to the assistance of counsel. [Citations.] A defendant seeking to represent himself "should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that 'he knows what he is doing and his choice is made with eyes open.' [Citation.]" [Citation.] "No particular form of words is required in admonishing a defendant who seeks to waive counsel and elect self-representation." [Citation.] Rather, "the test is whether the record as a whole demonstrates that the defendant understood the disadvantages of self-representation, including the risks and complexities of the particular case." [Citations.]' [Citation.] Thus, '[a]s long as the record as a whole shows that the defendant understood the dangers of self-representation, no particular form of warning is required.'" (People v. Burgener (2009) 46 Cal.4th 231, 240-241 (Burgener); in accord, People v. Ruffin (2017) 12 Cal.App.5th 536, 543-544 (Ruffin).) "'On appeal, we review the entire record, including proceedings after the invocation of the right to self-representation, and determine de novo whether the defendant's waiver of the right to counsel was knowing and voluntary.'" (People v. Bush (2017) 7 Cal.App.5th 457, 469 (Bush); accord, Ruffin, at p. 544.)
Faretta v. California (1975) 422 U.S. 806.
No specific inquiry is required during a Faretta advisement of the right to counsel. However, California courts have discussed the types of warnings that are sufficient. "Those warnings '"include the defendant's inability to rely upon the trial court to give personal instruction on courtroom procedure or to provide the assistance that otherwise would have been rendered by counsel. . . ." [Citation.] The defendant "should at least be advised that: self-representation is almost always unwise and that the defense he conducts might be to his detriment; he will have to follow the same rules that govern attorneys; the prosecution will be represented by experienced, professional counsel who will have a significant advantage over him in terms of skill, training, education, experience, and ability; the court may terminate his right to represent himself if he engages in disruptive conduct; and he will lose the right to appeal his case on the grounds of ineffective assistance of counsel. [Citation.] In addition, he should also be told he will receive no help or special treatment from the court and that he does not have a right to standby, advisory, or cocounsel. [Citation.] [¶] While this list of issues is not exhaustive, it demonstrates that there are a number of matters the court must ask about and consider before ruling on a defendant's request to represent himself."'" (Ruffin, supra, 12 Cal.App.5th at p. 544, quoting People v. Sullivan (2007) 151 Cal.App.4th 524, 545-546.)
The court should also satisfy itself that "the defendant understands the nature of the charges against him, though there is a split of authority in California as to whether the court must also specifically advise the defendant of the maximum penal consequences of conviction. (See Bush, supra, 7 Cal.App.5th at pp. 469-474 [discussing decisions and holding advisement of penal consequences is not essential to a valid Faretta waiver]; cf. People v. Jackio (2015) 236 Cal.App.4th 445, 454-455 [holding that court must advise the defendant of the maximum punishment if convicted, including enhancements].)" (Ruffin, supra, 12 Cal.App.5th at p. 544.) "[E]ven if such an advisement is not mandatory, its total absence is certainly a factor to consider in determining whether the defendant's waiver was knowingly made." (Ibid.; see id. at p. 553 (conc. opn. of Epstein, J.) [advisement of maximum penalty should be required].)
In Ruffin, supra, 12 Cal.App.5th at page 540, the court held that the master calendar court committed reversible, prejudicial error by failing to adequately advise the defendant of the dangers and disadvantages of self-representation before the defendant exercised his right to represent himself. On the day set for trial, which was the last permissible day to try the defendant, the defendant's trial attorney was unavailable and the defendant refused to waive his right to a speedy trial. The trial court found there was good cause to continue the trial under such circumstances. The defendant insisted he wanted to start the trial and represent himself. The defendant initialed and signed a Faretta advisement form regarding self-representation, and told the court he did not have any questions regarding the Faretta form. The court did not ask if the defendant had read and understood the form, inquire regarding ambiguities in the defendant's responses concerning his understanding of the nature of the charges, and did not advise him of the penal consequences of a conviction against him. (Ruffin, supra, at p. 541.)
The court granted the defendant's request to represent himself and proceed to trial. However, after the case was assigned to a trial court and called for trial, the defendant told the judge he actually did not want to represent himself. He just wanted a speedy trial but, because he had to represent himself, he needed a continuance to prepare his defense. The court denied a continuance and began jury selection, with the defendant representing himself. (Ruffin, supra, 12 Cal.App.5th at pp. 542-543.)
On appeal, the Ruffin court concluded that the defendant's Faretta waiver was invalid, because the master calendar court's inquiry about the Faretta form and the remainder of the record failed to adequately demonstrate that the defendant understood the dangers and disadvantages of representing himself. (Ruffin, supra, 12 Cal.App.5th at p. 540.) The Ruffin court found that, among other deficiencies, "neither the court nor the form advised defendant of the penal consequences of conviction—up to 27 years to life in state prison—and nothing in the record on appeal reveals such an advisement. Reviewing this record de novo and as a whole, we cannot say that the waiver form, coupled with the court's oral inquiry, satisfactorily demonstrates that appellant's request to represent himself was knowing and voluntary." (Id. at p. 547.)
Ruffin is distinguishable. In the instant case, defendant was warned orally and in writing of his right to counsel on two occasions. It is undisputed that he was properly advised at the pretrial conference on January 22, 2016, when defendant requested representing himself. At that time, the trial court gave the defendant a complete Faretta warning, which included advising him of his maximum possible sentence of 11 years. In addition, when defendant was representing himself, the court again advised him of his right to counsel after granting the prosecution's motion to amend the information. The trial court again advised defendant of the dangers and disadvantages of self-representation, with the exception the court did not tell him that the information amendment increased his maximum possible sentence from 11 years to 22 years.
The issue here is whether the trial court erred in not fully readvising defendant of his right to counsel after the information was amended. Unlike in Ruffin, defendant was initially properly advised of his right to counsel and defendant was granted in pro. per. status. There is no evidence of any reluctance on defendant's part to represent himself at trial. There also is no evidence he sought to withdraw his waiver of counsel or asked that counsel be appointed to defend him during the trial. In addition, there was extensive colloquy between the court, counsel, and defendant, before the court granted defendant's Faretta motion to represent himself, and an additional shorter colloquy when the information was amended. The court reminded defendant at that time that he had a right to counsel and advised defendant again of the risks and disadvantages of representing himself. (People v. Bloom (1989) 48 Cal.3d 1194, 1225; Ruffin, supra, 12 Cal.App.5th at p. 549; People v. Conners (2008) 168 Cal.App.4th 443, 454-455.)
In Bush, supra, 7 Cal.App.5th 457, the trial court readvised the defendant of his right to counsel at seven hearings. The defendant declined each time because he wanted to speak for himself, did not trust attorneys, wanted to learn the legal process, and believed the prosecution had insufficient evidence to win a conviction. (Id. at p. 468.) The Bush court held the defendant knowingly and intelligently waived his right to counsel, even though the court did not advise the defendant of his maximum fine. The court further held that any error in not providing the defendant with a complete Faretta warning was harmless error. (Bush, supra, at pp. 477-479; Chapman v. California (1967) 386 U.S. 18, 24.)
The Bush court stated that, "[a]lthough . . . the constitutional requirement of a knowing, intelligent waiver 'is satisfied when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea' [citation], the Supreme Court [in Iowa v. Tovar (2004) 541 U.S. 77, 81 (Tovar),] did not state that courts must give these advisements in every case." (Bush, supra, 7 Cal.App.5th at p. 470, italics added.)
The court in Bush explained that: "To the contrary, in Tovar, supra, 541 U.S. 77 the court reaffirmed its long-standing rule that there is no prescribed formula for ensuring a defendant knows what he is doing in electing to represent himself. 'The information a defendant must possess in order to make an intelligent election . . . will depend on a range of case-specific factors, including the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceedings.' [Citation.] Although '[w]arnings of the pitfalls of proceeding to trial without counsel . . . must be "rigorous[ly]" conveyed,' the court observed [citation], a waiver of counsel is '"knowing, intelligent, and sufficiently aware if the defendant fully understands the nature of the right and how it would likely apply in general in the circumstances—even though the defendant may not know the specified detailed consequences of invoking it." [Citation.]' [Citation.] That a defendant '"lacked a full and complete appreciation of all of the consequences flowing from his waiver,"' will not alone defeat a showing that '"the information . . . provided to him satisfied the constitutional minimum."' [Citation.] '[T]he information a defendant must have to waive counsel intelligently will "depend, in each case, upon the particular facts and circumstances surrounding that case."'" (Bush, supra, 7 Cal.App.5th at p. 471.)
The Bush court disagreed with Arrendondo v. Neven (2014) 763 F.3d 1122, 1131, footnote 2, which held that Tovar, supra, 541 U.S. 77 established that a defendant waiving counsel before entering a guilty plea, must understand the range of allowable punishments. "What Tovar requires is that the defendant be 'made aware "of the hazards ahead" if he proceed[s] without the assistance of counsel.' [Citation.] . . . '"'[T]he test is whether the record as a whole demonstrates that the defendant understood the disadvantage of self-representation, including the risks and complexities of the particular case.'"'" (Bush, supra, 7 Cal.App.5th at p. 471; see also Burgener, supra, 46 Cal.4th at pp. 241-242.)
The Bush court further concluded that, even assuming "that the trial court had an affirmative duty specifically to admonish defendant about the maximum potential fine on conviction, we also reject defendant's contention that the omission of this single piece of information from the court's extensive colloquy with him about the hazards and risks of self-representation requires an automatic reversal." (Bush, supra, 7 Cal.App.5th at p. 474.) The court held in Bush that, under Chapman v. California, supra, 386 U.S. 18, any error in providing the defendant in Bush with an incomplete Faretta advisement was harmless error. (Bush, supra, at p. 477.)
Here, even though the trial court did not advise defendant of his maximum possible sentence when the information was amended, there was no prejudicial error. First, "Federal authority holds that once a defendant gives a valid waiver, it continues through the duration of the proceedings unless it is withdrawn or is limited to a particular phase of the case. 'While it is true that the Sixth Amendment right to counsel applies at all critical stages of the prosecution, including the sentencing stage, it does not follow that once the assistance of counsel in court has been competently waived, a new waiver must be obtained at every subsequent court appearance by the defendant. A competent election by the defendant to represent himself and to decline the assistance of counsel once made before the court carries forward through all further proceedings in that case unless appointment of counsel for subsequent proceedings is expressly requested by the defendant or there are circumstances which suggest that the waiver was limited to a particular stage of the proceedings.'" (People v. Crayton (2002) 28 Cal.4th 346, 362 (Crayton), quoting Arnold v. United States (9th Cir.1969) 414 F.2d 1056, 1059; see also People v. Bauer (2012) 212 Cal.App.4th 150, 157 (Bauer); Davis v. United States (8th Cir. 1955) 226 F.2d 834, 840.)
But see United States v. Erskine (9th Cir. 2004) 355 F.3d 1161, 1165 ; Schell v. United States (7th Cir. 1970) 423 F.2d 101, 103; United States v. Hantzis (9th Cir. 2010) 625 F.3d 575, 580-581; Jensen v. Hernandez (2012) 864 F. Supp.2d 869, 897. To the extent these cases are not distinguishable, we decline to follow them.
Defendant's reliance on Jensen v. Hernandez, supra, 864 F. Supp.2d 869, for the proposition that, when the information was amended, the trial court was required to readvise defendant of his right to counsel, including informing him of his maximum possible sentence, is misplaced. Jensen is a lower federal court decision and therefore is not binding on this court. (People v. Zapien (1993) 4 Cal.4th 929, 989; People v. Jackio, supra, 236 Cal.App.4th at p. 456.) Moreover, Jensen's categorical rule is at odds with the high court's Sixth Amendment jurisprudence. (Tovar, supra, 541 U.S. at p. 92 ["the information a defendant must have to waive counsel intelligently will 'depend, in each case, upon the particular facts and circumstances surrounding that case, . . .'"].) Erskine is likewise at odds with decisions of our state Supreme Court, which require California appellate courts to determine, based on the entire record, whether a Faretta waiver was knowing and intelligent. (Burgener, supra, 46 Cal.4th at p. 241.)
It is undisputed that when defendant initially waived his right to counsel, the trial court properly advised him of the dangers and disadvantages of self-representation before he exercised his right to represent himself. There is no indication from the record that defendant was incapable of comprehending the oral and written warnings concerning self-representation. To the contrary, the record demonstrates defendant was of at least average intelligence, having completed high school and two years of college. He had also worked as a teacher's assistant. In addition, defendant demonstrated considerable legal knowledge, and represented himself in a previous criminal prosecution. Therefore, the trial court was not required to readvise defendant of his right to counsel when the information was amended, because defendant's waiver of counsel remained in effect throughout the proceedings. (Crayton, supra, 28 Cal.4th at pp. 362-363; Bauer, supra, 212 Cal.App.4th at p. 157.)
Second, an in pro. per. defendant is not entitled to be treated any differently than a defendant represented by counsel. The trial court would not have been required to provide defendant with a Faretta advisement or advise him of his maximum possible sentence had he been represented by counsel when the information was amended. The amended information provided notice of the factual allegations underlying a two-strike sentencing allegation and cited the three strikes provision, section 1170.12, subdivisions (a) through (d) as a count 1 special allegation, indicating the sentence on count 1 might be doubled under the "Three Strikes" law. Defendant's comments during the hearing on amending the information, reflect he was aware the amendment would result in increasing his maximum possible sentence under the Three Strikes law. Defendant objected to the amendment, arguing that the involuntary manslaughter conviction was not a strike and the case was therefore not a "strikeable case." Furthermore, although the court was not required to readvise defendant of his right to counsel, the court reminded him at length that he was entitled to representation by an experienced attorney who might more effectively argue on his behalf. Defendant was adamant that he wished to represent himself.
The instant case is distinguishable from Crayton. In Crayton, the trial court proceedings preceded unification of the municipal and superior courts. When the criminal complaint was filed, the defendant appeared before a magistrate in the municipal court, who was required under section 859, to inform the defendant of his or her right to counsel. After the preliminary hearing in the municipal court, and after the prosecution filed the information in the superior court, the court was required under section 987 to inform the defendant during his arraignment of his right to an attorney. (Crayton, supra, 28 Cal.4th at p. 360.) In Crayton, the judge inadvertently failed to readvise the defendant when he appeared for arraignment on the felony information. (Id. at p. 361.)
The instant case occurred after reunification of the courts, with the criminal proceedings all occurring in the superior court. There was also no statutory requirement the court readvise defendant of his right to counsel after he waived the right and was representing himself. Furthermore, under the Chapman harmless error standard, any such error in not advising defendant of his maximum possible sentence when the information was amended was nonprejudicial because the record demonstrates that defendant was resolute and unwavering in representing himself. (Bauer, supra, 212 Cal.App.4th at p. 157.) In addition, even if he had asserted his right to counsel and was represented by counsel during the trial, it is highly unlikely the outcome would have been any different because there was overwhelming evidence supporting his conviction. (Burgener, supra, 46 Cal.4th at p. 245; Crayton, supra, 28 Cal.4th at p. 350.)
IV
MOTION TO AMEND THE INFORMATION
Defendant contends the trial court erred in granting the prosecution's motion to amend the information. The day before defendant's trial began, the prosecution moved to amend the information to modify the enhancement allegations and add a strike.
A. Applicable Law
Under section 1009, the trial court may permit an "amendment of an information at any stage of the proceedings provided the amendment does not change the offense charged in the original information to one not shown by the evidence taken at the preliminary examination. If the substantial rights of the defendant would be prejudiced by the amendment, a reasonable postponement not longer than the ends of justice require may be granted." (People v. Winters (1990) 221 Cal.App.3d 997, 1005.) Whether the prosecution should be permitted to amend the information is a matter "within the sound discretion of the trial court and its ruling will not be disturbed on appeal absent a clear abuse of discretion." (Id. at p. 1005; see also People v. Hamernik (2016) 1 Cal.App.5th 412, 423-424; People v. Witt (1975) 53 Cal.App.3d 154, 165.)
Section 969a, which concerns adding prior felony conviction allegations, further provides: "Whenever it shall be discovered that a pending indictment or information does not charge all prior felonies of which the defendant has been convicted either in this State or elsewhere, said indictment or information may be forthwith amended to charge such prior conviction or convictions, and if such amendment is made it shall be made upon order of the court."
Section 969a gives the trial court discretion to permit or deny the amendment. Prudent exercise of that discretion is required to ensure that defendants' due process rights are adequately protected. (People v. Valladoli (1996) 13 Cal.4th 590, 607.) "In exercising such discretion, courts should scrutinize (i) the reason for the late amendment, (ii) whether the defendant is surprised by the belated attempt to amend, (iii) whether the prosecution's initial failure to allege the prior convictions affected the defendant's decisions during plea bargaining, if any, (iv) whether other prior felony convictions had been charged originally, and (v) whether the jury has already been discharged (see § 1025). This list, of course, is intended to be illustrative rather than exhaustive, and we reiterate the matter is best left to the discretion of our trial judges." (Id. at pp. 607-608.)
B. Procedural Background
In September 2015, the People filed a felony complaint against defendant (San Bernardino County Superior Court case No. FMB1500386), alleging rape of an unconscious person (M.W.) on September 1, 2015. (§ 261, subd. (a)(4); count 1.) The complaint included two strikes, consisting of a section 220 conviction and a section 192, subdivision (a) conviction (voluntary manslaughter), and various additional enhancement allegations. In November 2015, the complaint was dismissed with leave to refile, pursuant to the People's motion, on the ground the People were unable to proceed to trial.
Referred to herein as section 192(a).
The information in the instant refiled case, filed in December 2015, included a two-strike allegation based on a prior section 220 conviction in 1982 (assault with intent to commit rape). (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i).) The information also alleged three prison prior convictions under section 667.5(b), which included convictions for violating sections 192(b), 243.4, subdivision (a), and 459. In addition, the information alleged a section 667, subdivision (a)(1) enhancement based on defendant's section 220 prior conviction. At the time of the Faretta hearing on January 22, 2016, the prosecutor told the court the prosecution was requesting striking the section 220 strike allegation because the prosecution had been unable to obtain the records for the 1982 conviction from archives.
Referred to herein as section 243.4(a).
On May 2, 2016, the day before the trial began, the prosecution filed a proposed amended information. The prosecutor informed the court defendant had previously received notice of the amended information. The prosecutor further explained that the People previously removed the section 220 strike and wanted to add a section 192(b) conviction as a strike in its place. The prosecutor stated that the People did not originally allege the section 192(b) conviction as a strike because it was not until later that the prosecutor discovered there was a gun allegation that qualified the conviction as a strike. The People also struck from the information two of the prison priors (a § 192(b) conviction in 1988, and a § 243.4(a) conviction in 2001), because they did not meet the five-year requirement. The section 192(b) conviction, with the section 12022.5 weapon enhancement, was added as a section 667, subdivision (a)(1) enhancement, and the section 459 conviction remained, as a previously alleged section 667.5(b) enhancement.
Defendant opposed the filing of the amended information on the ground the involuntary manslaughter conviction (§ 192(b)) did not qualify as a strike. Defendant asserted that his previous attorney confirmed that it was not a strike, and the issue was addressed in 2001. The court stated there would be a hearing in the future during which the trial court would determine whether the conviction qualified as a strike. Defendant acknowledged he was not a legal "professional," but believed he would be able to argue as to why the conviction did not constitute a strike. The court acknowledged defendant had a right to represent himself but suggested counsel be appointed to represent him, reminding him of the risks and disadvantages of representing himself. Defendant explained why he wanted to represent himself and confirmed that he wanted to continue to do so.
The court then proceeded with arraignment on the amended information. Defendant reasserted his objection to the court filing the amended information. The prosecutor again explained it struck the original strike allegations and then added one strike. The prosecutor indicated that the strike that was added was one of the two strikes alleged in the original information. The trial court permitted the filing of the amended information, over defendant's objection. The court noted that later on the prosecutor would have to prove that the conviction qualified as a strike. Defendant responded, "Okay." Defendant acknowledged he did not need the court to read to him the amended information charges and allegations. Defendant then waived arraignment on the amended information, pled not guilty to the charges, and denied the amended information allegations.
C. Discussion
Defendant contends he was not on notice of the section 192(b) weapon use strike (section 192(b)/weapon strike) because it was not alleged in the original complaint or information. The People argue the strike was alleged in the complaint in the previous dismissed case, FMB1500386. Defendant argues the section 192 strike alleged in that case was not a section 192(b)/weapon strike. It was alleged as a section 192(a), voluntary manslaughter strike. Defendant therefore argues there was no notice of the section 192(b)/weapon strike until it was alleged in the amended information in the instant case (case no. FMB1500542) as a section 667.5(b) enhancement, not as a strike, and there was no attached weapon use allegation (§ 12022.5), which was required to make the section 192(b) conviction a strike. Defendant further argues that, at the time of the hearing on the amended information, the prosecutor incorrectly informed the court that the section 192(b)/weapon strike was one of the two strikes alleged in the original information, apparently referring to the complaint that was dismissed. Defendant asserts this representation was misleading. He therefore concludes the trial court did not properly exercise its discretion.
We conclude defendant received sufficient notice of the section 192(b)/weapon strike and was aware that the information amendment added a strike which would increase his sentence. It is unsubstantiated speculation that the trial court was misled by the prosecutor's statement that the section 192(b) strike was previously alleged. Furthermore, defendant did not object to the prosecutor's representation that the strike had been previously alleged or attempt to clarify any misleading or incorrect statements made by the prosecutor.
Regardless, there is no evidence in the record that the prosecutor intended to mislead the court or that the court did not properly exercise its discretion when it permitted the prosecution to amend the information. The trial court noted, in response to defendant's objection to amending the information, that defendant would have an opportunity to challenge the validity of the strike later in the trial, and therefore permitted the amendment.
Applying the Valladoli factors, we conclude the trial court did not abuse its discretion in allowing the prosecution to amend the information to add the section 192(b)/weapon strike conviction as a strike, and to add it as a section 667, subdivision (a)(1) enhancement. First, the prosecutor explained that the reason for the late addition of the strike was because the prosecution had recently discovered there was a weapon enhancement that qualified the section 192(b) conviction as a strike. There was nothing in the record indicating the prosecution acted in bad faith in amending the information.
People v. Valladoli, supra, 13 Cal.4th at pages 607-608.
Second, the amendment should not have been a complete surprise, since a section 192(a) prior conviction was alleged as a strike in the first action, and a section 192(b) prior conviction was alleged as an enhancement in the refiled complaint and information. Also, before the hearing on the amended information, the prosecutor provided defendant with notice of the amended information by providing defendant with a copy of the proposed amended information and told defendant the prosecution intended to amend the information. Defendant indicated that he intended to contest the validity of the 192(b)/weapon strike conviction, and told the court that, even though he was not an attorney, he believed he was prepared to argue why the conviction did not qualify as a strike. Defendant did not request a continuance to prepare his arguments and rejected the trial court's urging that he be represented by counsel instead of representing himself.
Third, there is no evidence in the record that the prosecution's initial failure to allege the section 192(b)/weapon strike conviction as a strike affected defendant's decisions during plea bargaining. Fourth, the section 192 prior conviction was previously alleged. It was alleged as a section 192(a) strike in the previous, dismissed action, and as a section 192(b)/667.5(b) enhancement in the complaint and information. Fifth, at the time of the prosecution's request to amend the information, the jury had not been discharged and the trial had not yet begun. (People v. Valladoli, supra, 13 Cal.4th at pp. 607-608.) Based on these circumstances, and the absence of any showing of prejudice, we reject defendant's contention the trial court abused its discretion by permitting the prosecution to amend the information.
V
SENTENCING
During the sentencing hearing, defendant asked for leniency based on the prosecutor previously offering him a plea bargain of a three-and-a-half-year sentence if he pled guilty to the lesser charge of sexual battery. Defendant said he rejected the offer because he believed he was innocent. The trial court told defendant that the plea bargain offer had no bearing on sentencing. The court added that its sentencing decision was in no way influenced by defendant's decision to reject the plea bargain offer.
Defendant argues the court erred in imposing a maximum term on count 1 (rape of an unconscious person) based on the finding defendant was unwilling to admit he committed the charged crime. In support of this contention, defendant cites the following statements made by the trial court during sentencing: "My punishment that I impose today in no way represents your decision to not accept that offer. I'm not punishing you because you chose to go to trial. I'm punishing you today because of your actions which even to today you haven't acknowledged wrongdoing. You haven't even apologized to the victim for what you brought upon her and her family. You continue to portray yourself as the victim in this. And that is just something that I cannot understand, comprehend, or wrap my mind around. [¶] There's one thing that I would have been able to consider today and that was had you walked into this court a humble man, expressing your sincerest apologies to try and somehow help the victim along with her life, but you continue to reject that." The court further stated it was adopting the circumstances in aggravation that were stated in the probation report, which included the aggravating factors in listed California Rules of Court, rule 4.421(b)(1), (2), (3), and (5). The court added there were no mitigating circumstances.
California Rules of Court, rule 4.421(b) states, in relevant part:
"(b) Factors relating to the defendant
"Factors relating to the defendant include that:
"(1) The defendant has engaged in violent conduct that indicates a serious danger to society;
"(2) The defendant's prior convictions as an adult . . . are numerous or of increasing seriousness;
"(3) The defendant has served a prior term in prison or county jail under section 1170 [, subdivision] (h); [¶] . . . [¶]
"(5) The defendant's prior performance on . . . parole was unsatisfactory."
Defendant maintains that the court erred in considering his lack of remorse as an aggravating factor, when there was conflicting evidence of guilt and he claimed he was innocent. "Lack of remorse may be used as a factor to aggravate under California Rules of Court . . . unless the defendant has denied guilt and the evidence of guilt is conflicting." (People v. Holguin (1989) 213 Cal.App.3d 1308, 1319.) But even though defendant denied his guilt, there was overwhelming evidence of his guilt. Therefore, the trial court did not abuse its discretion in considering defendant's lack of remorse as an aggravating factor. (Ibid.; see also People v. Leung (1992) 5 Cal.App.4th 482, 507.) Strong evidence of defendant's guilt included evidence of M.W.'s injuries sustained to her cervix and genitalia, DNA evidence recovered from M.W. and defendant, and testimony by M.W. and her children.
Even if the trial court's consideration of defendant's lack of remorse was error, other aggravating factors considered were sufficient on their own to support defendant's maximum sentence. "The mere fact a trial court erroneously relies upon certain factors in imposing an upper term does not per se require reversal. Reversal is only required where there is a reasonable probability the trial court would sentence the defendant differently absent the erroneous factors. [Citation.] Thus, where the trial court has stated several factors warranting the upper term, and only some of those factors are erroneous, the sentence is generally affirmed. [Citations.] Indeed, even one valid factor is sufficient to justify the upper term." (People v. Holguin, supra, 213 Cal.App.3d at p. 1319; see also People v. Black (2007) 41 Cal.4th 799, 812; People v. Osband (1996) 13 Cal.4th 622, 728-729.)
It is unlikely the outcome would have been any different had the court not considered defendant's lack of remorse. There were no mitigating circumstances, and multiple other aggravating factors, including defendant committing multiple violent sex crimes against the victim; defendant having a history of numerous prior convictions of increasing seriousness, which include multiple misdemeanors, involuntary manslaughter, sexual battery, and burglary; defendant serving prior prison terms; and defendant having an unsatisfactory past parole performance. (Cal. Rules of Court, rule 4.421.) Since any of these aggravating factors was sufficient alone to aggravate the sentence, we cannot conclude the trial court would have sentenced defendant differently had it not considered defendant's lack of remorse. (People v. Holguin, supra, 213 Cal.App.3d at pp. 1319-1320.)
Furthermore, the circumstances of defendant's crime were such that it is reasonably probable the trial court would have imposed the maximum sentence, regardless of the court considering defendant's failure to show remorse. Defendant raped a 50-year-old friend, who was paralyzed from the waist down. Defendant took advantage of a position of trust, raping M.W., knowing she had taken sleeping medication and would not be able to feel anything he did to her from the waist down while she slept, because of her paralysis. After family members discovered defendant in the victim's room and told him to leave, defendant feigned leaving and then returned to resume sexually abusing M.W. The record demonstrates defendant's lack of remorse was not the only reason the trial court imposed the maximum term. Therefore, any error in the trial court considering lack of remorse is harmless error.
VI
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.