People v. WilfordPeople v. Wilford
Anthony J. Dain, 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, Barry Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
The trial court found, as to counts 5 and 6, Wilford suffered a prior assault conviction within seven years of the current offenses within the meaning of
The court sentenced Wilford to prison for 22 years, consisting of four years for count 1, doubled to eight years for his prior strike, plus three years for the great bodily enhancement; one year four months, doubled to two years eight months based on his prior strike for counts 5 and 6; five years for the serious felony prior conviction; and eight months for the probation violation. The court stayed Wilford‘s sentence under count 2
Wilford appeals, contending his conviction for count 1 should be reversed because the trial court prejudicially erred in answering the jury‘s question regarding lesser included offenses and his sentence for counts 5 and 6 violated due process. We find that the court‘s error in responding to the jury‘s question regarding count 1 was harmless. However, we conclude that Wilford‘s challenge to his sentence for counts 5 and 6 is well taken. We therefore reverse his sentence on those two counts and remand this matter to the superior court for resentencing as to those two counts only, consistent with this opinion.
FACTUAL BACKGROUND
Prosecution
In the summer of 2014, Wilford began dating Dulce Amaya. At the time, Amaya was still living with and in a relationship with Rodrigo Osorio, the father of her youngest daughter. Once Osorio discovered Wilford and Amaya were dating, he ended the relationship with Amaya and moved out of her house three months later. Soon after Osorio moved out, Wilford moved in with Amaya, her two daughters, her nine-year-old brother, her roommate Latasha Haines, Osorio‘s niece Estela, Estela‘s mother, and Estela‘s three siblings. Estela regularly babysat Amaya‘s daughters. Wilford kept his belongings in the basement, but he slept upstairs with Amaya. Amaya‘s mother lived at the house on the weekends.
On another occasion, Wilford pushed Amaya onto the coffee table causing her leg to bruise. He forced her into his van and drove her to his grandfather‘s house against her will. After one of Wilford‘s friends showed up at the house, Amaya asked the friend to convince Wilford to release her. However, Wilford would not let her go. Later, Amaya took photos of her injuries and Wilford asked her to delete them. When she and Wilford fought, Amaya often would kick him out of the house, but eventually, she would forgive him and he would return.
One night in November 2014, Amaya and Wilford were play fighting and wrestling. Wilford got too rough and she could not get him off her. She grabbed a pan and hit him to get him off her. In response, he pulled her hair, which hurt her neck. She asked him to stop, but he kept pulling her hair. He also bit her neck. They fought from
While outside, Amaya told Wilford she was upset. Wilford grabbed her by the neck with both hands and squeezed to where she could not breathe. She got free and went to the side of the house. He followed and grabbed her by the hair. Wilford said, “Do you want me to treat you like all the other bitches?” He dragged her by her hair and arms into the basement. The basement entrance was outside and not accessible from inside the house.
Once in the basement, he told her he was sorry. She told him she wanted to leave, but he blocked her from leaving. Amaya was afraid she would die and concerned about who would care for her children. She agreed to have sex with Wilford to calm him down. Amaya did not call the police.
The next morning while they were leaving for work, Amaya told Wilford that he had to move out. Wilford became angry, but went to work. Later that night, when they got home, Wilford told her he needed her support. She told him to leave. He put his hand over her mouth and dragged her across the room by her hair. Amaya yelled for her roommate who called the police.
By the time the police arrived, Wilford had left. Amaya told the police that a man named Johnny Fluker had choked her, locked her in the basement, covered her mouth, and dragged her by her hair across the room. She told the police he had grabbed her by the throat and asked her, “Do you want me to treat you like all those other bitches?” She lied to the police about Wilford‘s last name because she did not want Wilford to get in
A few weeks later, Amaya, Osorio, and her children spent Thanksgiving with her family in Los Angeles. When she returned from Los Angeles, Wilford apologized and said he would never hurt her again. Amaya forgave Wilford and they resumed their romantic relationship. She believed he would change. She also blamed herself for what had happened.
On January 22, 2015, Amaya had a garage sale at her house with Vonnie Galligher and Galligher‘s boyfriend Bishop Slingerland. After the garage sale, Wilford, Galligher, Slingerland, and Amaya cooked, drank beer, talked, and played music. After the children went to bed, the adults sat in the front of the house. Amaya wanted to listen to some music and picked a song. Wilford did not want to hear the song. Nevertheless, Amaya played the song and Wilford became angry. He walked to the back of the house and asked her to follow him. She followed him asking why he was mad. They argued loudly. Then the altercation became physical. Amaya slapped Wilford. Wilford slapped her back, shoved her to the ground, and kicked her several times in the side.
Slingerland walked to the side of the house and saw Wilford kicking Amaya. Wilford told Slingerland, “You need to back off.” Wilford grabbed Slingerland‘s shirt and lifted him up. Wilford told him, “Don‘t get in it” or he would kill him. Slingerland
Amaya got up and ran back to the front of the house. Wilford said, “Oh, you think you‘re going to get off that easy?” He ran at Amaya and hit her in the face. Wilford tackled Amaya, and she hit a metal fence. He threw her to the ground by her throat and kicked her side several times.
Amaya screamed at Galligher to call the police, but Galligher‘s phone was dead. Amaya ran into her house, grabbed her four-year-old daughter and ran across the street because her phone also was dead. She stopped a man in a car and asked him to call the police. He refused. Slingerland drove Wilford away.
Amaya went back into her house. She sent Osorio a Facebook message asking him to come to her house because Wilford had beaten her up. Haines came home and Amaya used Haines‘s phone to call 9-1-1. Amaya told the operator that her ex-boyfriend had hit and kicked her again. She said she was scared and that her three children were with her. She said he had been violent in the past. She said she was scared he was going to kill her. While talking with the 9-1-1 operator, she told Haines that she should have listened to her when she told her in the past to leave Wilford because he was going to keep hitting her. Amaya was afraid Wilford was going to kill her based on his hitting her and stories of him being violent toward previous ex-girlfriends.
Osorio arrived and saw Wilford drive by the house twice. The police arrived and Amaya told them what happened. Amaya had cuts on her hands, leg, and her neck; bruises on her shoulder and ribs; pain on the side of her body; and injuries to her face.
The next day, Amaya got a restraining order against Wilford. While she was filling out the restraining order at the police station, Wilford showed up in the parking lot. She was scared. Wilford had told her that if she got a restraining order he would call immigration and call CPS to tell them she had abused drugs. After she obtained the restraining order, Amaya called the police because Wilford kept calling her and he took the chip out of her truck so it could not start.
Amaya reconciled with Osorio, and he moved back in with her because she did not feel safe. A month later, Amaya began having an affair with Wilford. While Osorio was shopping with Amaya, Wilford saw them together, walked up, and hit Osorio in the face. Osorio wanted to call the police, but Amaya convinced him not to.
On February 12, 2015, Wilford called Amaya to ask to borrow a charger. Amaya asked Estela to put the charger on the steps for Wilford to pick up. While Estela was bringing out the charger, she saw Wilford. He told her, “You never saw me.” He took the charger from her and went into the basement. That night, Amaya and Osorio were in the house getting ready to go out. Her children, Estela and Estela‘s sister Evelyn were there. Amaya, Estela, and Evelyn went to the basement to get a pair of heels. They saw
Amaya went back into the house and saw Osorio on her way to the bathroom. Osorio went outside to the back to get something out of his truck. As he was going back into the house, he heard a noise in the basement. He took one step down the basement stairs to see what it was. He bent down to look and saw Wilford at the bottom of the stairs.
Osorio tried to leave, but Wilford pulled Osorio down. Wilford grabbed Osorio‘s neck, pushed him to the ground and put his knees on his chest. Wilford held him down with one hand and choked him with the other. Wilford yelled at Osorio and told him he was going to kill him. Osorio could not breathe. Wilford hit him in the face repeatedly with his fist. Osorio blacked out and did not remember what happened until later when he was in the ambulance.
Estela walked back toward the basement to find Wilford on top of Osorio hitting Osorio with one hand and holding him down with the other. Estela told Wilford to stop and leave. Wilford eventually ran off. Estela helped Osorio into the house. Osorio was covered in blood. Estela sat Osorio on the couch. Osorio looked faint. He attempted to call 9-1-1, but handed the phone to Amaya who talked to the operator. Amaya asked the
An ambulance took Osorio to the hospital. He had a CT scan of his head and face. Osorio suffered a fractured nose, broken teeth, a bruise to his neck, and spent three days in the hospital. Amaya went to the hospital. Before going inside, she met Wilford a few blocks away. Later that night, Wilford came over to Amaya‘s house and stayed the night with her.
After Osorio was released from the hospital, he continued to live with Amaya for a few months. Meanwhile, Amaya and Wilford remained in a romantic relationship. The police arrested Wilford on March 19, 2015. A uniformed officer recognized Wilford from a police wanted poster. The officer approached Wilford and told him to sit on the curb. While they were talking, Wilford stood up three times. Because Wilford was a big man who seemed very nervous and kept standing up, the officer decided to handcuff him. The officer reached down to put on the cuffs. Wilford stood up and ran down the street. The officer chased him down the street, into an alley, over a fence, and into a backyard. Back up units arrived in the backyard just as Wilford tripped and fell.
After his arrest, during telephone conversations, Wilford told Amaya to testify, “I don‘t recall” to not make him look bad. At Wilford‘s preliminary hearing, Amaya testified, “I don‘t remember” to many questions because she wanted to protect Wilford. The last time Wilford called Amaya from jail, in mid-November 2015, he told her he had forgiven her for calling the police after he beat her up. After that conversation, Amaya decided to stop lying for Wilford and ended their romantic relationship.
Defense3
Between January 28 and February 12, 2015, Wilford periodically would see Amaya in her house‘s basement. Wilford still had property there. A week before the February 2015 incident, Amaya told him to be careful because Osorio had started carrying a knife in his truck. Osorio also had threatened to harm Amaya and Wilford.
On February 12, 2015, Wilford had sex with Amaya in her basement. From the bottom of the stairs of the basement, he could see the top of the windshield of Osorio‘s truck. Later, Amaya came downstairs with her nieces and told him she was going out with Osorio. Amaya and the girls left the basement when they heard Osorio coming to the side of the house.
In the basement, Wilford heard Osorio‘s footsteps move toward the truck. He heard the truck door open and saw the interior light turn on. Wilford then heard the truck door close and heard footsteps coming toward the basement. Wilford saw a light and heard Osorio walking down the stairs. Osorio had one hand to his side, and Wilford was
DISCUSSION
I
JURY INSTRUCTIONS
During jury deliberations, among other questions, the jury asked the court the following: “Are we required to reach a unanimous ‘not guilty’ or ‘guilty’ on the greater charge before considering the lesser included offense LIO?”
With both the prosecutor and defense counsel in agreement, the trial court responded to the jury question:
“You may not consider the lesser included offenses unless or until you have reached a unanimous not guilty verdict as to the greater offenses. If you reach a unanimous guilty verdict as to the greater offenses, then you do not complete the verdict form for the lesser included offenses. If you cannot reach a unanimous verdict as to the greater offenses you do not proceed to the lesser included offenses and you inform the court.”
Wilford contends, and the People concede, that the trial court‘s answer was error.4 (See People v. Kurtzman (1988) 46 Cal.3d 322, 328.) A jury can consider greater and
Although the parties agree that the trial court erred, not surprisingly they disagree regarding the effect of this error. Wilford argues that it was prejudicial under People v. Watson (1956) 46 Cal.2d 818 (Watson). The People contend that the error was harmless. The People have the better argument.
In applying the Watson standard of prejudice, we follow our high court‘s guidance in People v. Breverman (1998) 19 Cal.4th 142 at page 177:
“Appellate review under Watson . . . focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.”
Based on our review of the record, we determine the trial court‘s error in responding to the jury‘s question was harmless under the Watson standard. The evidence adduced at trial overwhelmingly supports Wilford‘s conviction for assault by means likely to cause great bodily injury.
Wilford choked and beat Osorio until he blacked out. He grabbed Osorio‘s leg and brought him off balance, down onto the stairs. As Osorio tried to escape, Wilford pulled him down. Wilford grabbed Osorio‘s neck and pushed him to the ground. He put his
Wilford admitted he punched Osorio in the face three to five times. However, Wilford asserts that these few punches to Osorio‘s face and the possible choking of him for a period of time were not the type of assault likely to produce great bodily injury. We disagree. Indeed, the injuries Osorio sustained undermine Wilford‘s position. Osorio suffered a fractured nose, broken teeth, and bruise to his neck. He spent three days in the hospital. And the jury found Osorio did suffer great bodily injury.
We also are not persuaded by Wilford‘s argument that the jury doubted Osorio‘s credibility because they did not convict Wilford of the criminal threat offense. The evidence supporting that offense was relatively weak, especially in comparison to the evidence supporting the aggravated assault offense. Osorio testified that Wilford said something to him in English that he could not understand. He testified that while Wilford was choking him, he said more things in English he could not understand, and said, “I want to kill you.” Wilford then hit him, and Osorio could not remember what happened after that. This evidence does not call into question the mountainous evidence supporting Wilford‘s conviction under count 1.
We conclude there is not a “reasonable probability” that Wilford would have obtained a more favorable outcome had the error not occurred. (See People v. Lasko (2000) 23 Cal.4th 101, 111.) The evidence of the brutal attack taken together with the true finding of the great bodily injury enhancement show it was not reasonably probable that the jury would have found simple assault had there been no instructional error. (See
II
WILFORD‘S SENTENCE FOR COUNTS 5 AND 6
For counts 5 and 6, the amended information alleged Wilford committed a violation of
Before sentencing, the prosecutor filed a sentencing brief requesting the court to sentence Wilford under counts 5 and 6 to a term of two, four, or five years under
At the sentencing hearing, the trial court questioned the prosecutor regarding the request for a new term. The prosecutor explained she was requesting a sentencing range of two, four, or five years for counts 5 and 6 under
Wilford argues his sentence for counts 5 and 6 must be reversed because it was not properly pled in the information. Specifically, he contends that because the prosecutor pled an enhancement under
A defendant has a constitutional due process right to be advised of the charges against him to have a reasonable opportunity to prepare and present a defense. (People v. Jones (1990) 51 Cal.3d 294, 317; People v. Lohbauer (1981) 29 Cal.3d 364, 368-369.) As such, a defendant may not be convicted of an offense, which is neither specifically charged in the accusatory pleading nor necessarily included within a charged offense. (People v. Parks (2004) 118 Cal.App.4th 1, 6-7.) Further, a defendant has a right to fair notice of the specific sentence enhancement allegations that will be relied upon to increase punishment for his crimes. (People v. Mancebo (2002) 27 Cal.4th 735, 745 (Mancebo); People v. Haskin (1992) 4 Cal.App.4th 1434, 1438.) Nevertheless, a variance between the information and sentence generally does not offend due process unless a defendant is misled to his prejudice in presenting a defense. (See People v. Ramirez (2003) 109 Cal.App.4th 992, 999.)
The People maintain the instant action is like People v. Tardy (2003) 112 Cal.App.4th 783 (Tardy). In that case, the accusatory pleading had charged the defendant with robbery and had alleged prior qualifying convictions (i.e., allegations of prior prison terms served for felony convictions of petty theft with a prior), but it did not specifically charge him with a separate crime of petty theft with a prior conviction. The jury
In Tardy, supra, 112 Cal.App.4th 783 the prosecution advised the defendant of its intent to use the qualifying prior offenses for felony sentencing (petty theft with a prior) before the defendant waived his right to a jury trial on the issue. In contrast, here, the prosecution notified Wilford it was seeking an increased sentence after the jury returned its verdict and the court had found true that Wilford had been convicted of a qualifying offense under
In Cross, supra, 61 Cal.4th 164, the defendant was charged with a felony violation of
Although Cross, supra, 61 Cal.4th 164 involved a defendant stipulating to a prior
We are mindful that the instant matter does not implicate Wilford‘s Boykin–Tahl rights or the expansion of those rights under Yurko, supra, 10 Cal.3d 857. Nevertheless, the Supreme Court‘s reasoning in Cross, supra, 61 Cal.4th 164 implies that the People‘s branding of
In short, on the facts before us, we conclude it is inconsequential whether
DISPOSITION
The sentences for counts 5 and 6 are reversed. This matter is remanded to the superior court for resentencing on counts 5 and 6 consistent with this opinion. In all other aspects, the judgment is affirmed.
HUFFMAN, Acting P. J.
WE CONCUR:
HALLER, J.
AARON, J.