People v. Morton

[EDITORS' NOTE: THIS OPINION IS DEPUBLISHED UPON GRANTING OF PETITION FOR REVIEW. THE OPINION APPEARS BELOW WITH A GRAY BACKGROUND.] [EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 325

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 326 OPINION

Roy Lee Morton appeals from his conviction on charges of domestic battery with corporal injury (Pen. Code, § 273.5, subd. (a)) and misdemeanor assault (a lesser included offense of the aggravated assault charged pursuant to Pen. Code, § 245). Morton argues the court abused its discretion in allowing the jury to hear evidence he had engaged in a prior, uncharged incident of domestic violence, and erred by following our Supreme Court's precedent in People v.Black (2005) 35 Cal.4th 1238 [29 Cal.Rptr.3d 740,113 P.3d 534] in its application of California's determinate sentencing law. We are unpersuaded of any error. There is no basis to conclude the court abused its discretion on the evidentiary issue. The prior incident of domestic violence bore significant similarities to this one, and the fact that it was unprovoked — rather than provoked as Morton contends this incident was — made it germane to Morton's claim of self-defense. The court's decision to admit testimony concerning the prior incident from the alleged victim's son was likewise reasonable. The son was a direct witness to the prior incident, and while he was of a tender age (nine years) at the time of the incident, he was 19 at the time of his testimony. The "emotional impact" of his testimony was doubtless blunted somewhat by that passage of time. As to the sentencing issue, the trial court certainly cannot be said to have erred in followingBlack, our Supreme Court's then binding precedent, in its application of California's determinant sentencing law. However, while this case was pending on appeal, the United States Supreme Court handed down its decision in Cunningham v.California (2007) 549 U.S. [166 L.Ed.2d 856, 127 S.Ct. 856], disapproving People v. Black, supra, 35 Cal.4th 1238. Consequently, the issue we must decide is whetherCunningham requires us to remand this case to the trial court for resentencing. We conclude it does not, and affirm the judgment.

* * * The events giving rise to the crimes charged against Mortong occurred on November 7, 2004. At that time, Morton resided with his girlfriend and alleged victim, Theresa W. According to the prosecution's evidence, Morton was sitting in the living room watching television, while Theresa W. was cooking in the kitchen, topless. Morton made an unflattering comment about Theresa W.'s appearance as compared to that of a stripper in the movie he was watching. Theresa W. took umbrage, told Morton she was going to move out, and noted that he also fared poorly in comparison to the "good looking and big" man in the movie. *Page 328 Not to be outdone in the umbrage department, Morton picked up the chair he had been sitting in, and tried to throw it through the window near Theresa W. He then grabbed a wooden table and threw that at Theresa W. Neither connected. Theresa W. went into the hallway, picked up the phone and attempted to call 11. Morton grabbed the phone from her, and they both went into the bedroom. Morton hit Theresa W. several times in the jaw with a closed fist, and "head-butt[ed]" her. When Theresa W. began screaming, he grabbed her by the throat from behind, and a neighbor heard her shout "you're going to choke me to death." According to the neighbor, Morton responded something to the effect of "I don't give a damn, you bitch." Morton and Theresa W. ended up on the floor, and Morton again choked her until Theresa W. thought she would actually pass out. Although Theresa W. was able to get Morton's hands off her throat, he remained on top of her. He squatted over her face, then pulled down his pants and told Theresa W. "I'm going to shit on you." Theresa W. managed to escape this Fellini-esque nightmare, and fled the apartment, still topless. Morton followed her, but according to Theresa W., his mood had changed. He told Theresa W. he loved her and wanted to go to his sister's house. A neighbor overheard him say to Theresa W.: "be quiet, because if the cops come, I'm going to be gone. Is that what you want?" The police did come, and Theresa W. was observed to be shaking and crying. She also had a cut on her right eye, injuries on her face, discoloration on her chest, and redness and bruising on her neck. The police observed no injuries on Morton. Theresa W.'s injuries were documented in photographs, which were introduced into evidence at trial. In addition to evidence concerning the events of November 7, 2004, the prosecution also introduced evidence, over Morton's objection, concerning an uncharged incident of domestic violence committed by Morton in 1995. The alleged victim in that incident, Tina C, had been Morton's girlfriend. She testified she and Morton lived together on and off for several years. At the time of the incident, in September of 1995, they were living together with her nine-year-old son. Tina C. testified that Morton pushed her into the bedroom, hit her three or four times on her upper body with a closed fist, and slapped her multiple times with an open hand. Morton then choked her. Tina C.'s son, who had been in the bedroom at the time of the altercation, also testified. He stated he saw Morton push his mother into the bedroom, hit her in the face with a closed fist, and then choke her. He later saw "redness or hand prints" *Page 329 on her neck that had been caused by the choking.1 Although Tina C.'s son was only nine at the time of the events recounted in his testimony, he was 19 at the time he gave that testimony. Morton offered evidence to counter the prosecution's case, including his sister's testimony to the effect that he had called her on the day of the incident with Theresa W., prior to his arrest. Sounding scared, Morton told his sister that Theresa W. had gone "coo coo again," and was biting him even as he was on the phone. The sister said she could hear Morton yelling over the sound of the television set in the background. Morton related that Theresa W. was also hitting him, and that he had to "hold her to keep from hurting her." Morton's sister could hear him ask "why are you doing this to me?" The sister then went over to the apartment shared by Morton and Theresa W., and reported to a police officer what she had heard on the phone. That officer testified Morton's sister had told him that Morton and Theresa W. had argued over his seeing a stripper on television. Morton also offered the testimony of a man who rented a room from Theresa W.'s mother. That man testified that he had seen Theresa W. at Thanksgiving in 2004. At that time, he did not notice any injuries on Theresa W.'s face or neck, nor did she exhibit or complain of any pain. He also testified that during dinner Theresa W. related that she and Morton had a recent altercation, but claimed it was she who had started it and hit Morton first. The jury returned a verdict of "guilty" on the charge of domestic battery with corporal injury, and on a charge of misdemeanor assault. Morton had previously waived his right to a jury trial on his prior convictions, and the court found each of the allegations to be true, including two prior "strike" convictions and four convictions which qualified for sentence enhancements pursuant to Penal Code section 667.5, subdivision (b). Morton subsequently invited the court to strike one or more of his "strike" priors pursuant to Penal Code section 1385, and the court agreed to strike one. The court then sentenced Morton to the upper "aggravated" term of four years on the domestic battery count, doubled that because of Morton's remaining "strike" prior, and added one year for each of Morton's four enhancement priors. The court also sentenced Morton to six months for his conviction on the misdemeanor count, but stayed that pursuant to Penal Code section 654. *Page 330 In explaining its decision to sentence Morton to the upper term for the domestic battery conviction, the court emphasized his prior criminal history and his failure to comply with the conditions of parole: "[T]he defendant was on parole at the time of this offense. I would also note that his prior performance on parole was unsatisfactory. Numerous times, he was returned to custody upon being released on parole. [¶] And he has numerous convictions as an adult beyond the two strikes and the four prison priors which were alleged under [Penal Code section]667.5." Although the court recited that these "aggravating factors outweigh the mitigating factors," it did not actually find that any of the mitigating factors listed in California Rules of Court, rule 4.423 had been established.