People v. Cummings CA2/8 ( 2022 )

Filed 12/28/22 P. v. Cummings CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B316538
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA148874)
v.
CARL CORNELIUS
CUMMINGS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County. Tammy Chung Ryu, Judge. Affirmed.
Alex Coolman, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Scott A. Taryle and David A. Voet, Deputy
Attorneys General, for Plaintiff and Respondent.
**********
Defendant and appellant Carl Cornelius Cummings
kidnapped and committed a violent assault on his longtime
girlfriend which included chasing her in his car and hitting her.
He was convicted by jury of kidnapping, assault with a deadly
weapon and several other felonies, and sentenced to 14 years
four months in prison. He contends on appeal the prosecutor
committed misconduct during closing argument, his trial counsel
was ineffective for failing to object to the misconduct, and the
upper term sentence on the kidnapping count should be reduced
to a middle term sentence in light of the passage of Senate
Bill 567 (2021–2022 Reg. Sess.) which took effect while this
appeal was pending.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant began dating A.H. in 2013 when they were in
high school. They had a relationship for about six years, broken
up by intermittent periods of separation when A.H. tried to stay
away from defendant. They have two children together, a
daughter (A.C.) and a son (C.C.). We refer to the victim and her
two minor children by their initials to protect their privacy.
A.H. described the relationship as “fun” in the beginning
but eventually defendant began to hit and abuse her. She
became fearful of him and regulated her behavior to the point she
felt like a “robot” who did what defendant wanted in order to
keep him from getting angry and hitting her. Defendant often
threatened to kill her or take her children from her.
The hitting escalated into more violent assaults. At their
daughter’s third birthday party, defendant got angry about
something and choked A.H. until she began to feel weak and
almost blacked out. Later, when A.H. was pregnant with their
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son, she tried to leave the house to buy a Halloween costume for
their daughter, and defendant beat her repeatedly, accusing her
of wanting to meet up with another man. Defendant kicked her
stomach and told her he hoped the baby died.
Most of the time, A.H. did not report the abuse to law
enforcement because she was scared of defendant and afraid she
would lose her children if the authorities got involved. However,
in 2017, she reported two incidents, one in March and one in
May. The first incident resulted in an investigation by the Los
Angeles County Department of Children and Family Services
because the abuse occurred while the children were present.
The incident in May 2017 occurred in the presence of A.H.’s
mother. Defendant hit and kicked A.H. repeatedly and broke
numerous windows in the home. Defendant was arrested,
convicted of injuring A.H. in violation of Penal Code
section 273.5, and spent a few months in jail. Upon his release,
A.H. agreed to get back together with him because she believed
he was going to change. However, within a short period of time,
defendant resumed his abusive behavior.
By the fall of 2018, defendant and A.H. were no longer
living together but A.H. would meet him sometimes with the
children. On one such occasion, A.H. drove to meet defendant
and took their infant son with her. Defendant demanded A.H.
have sex with him in the car. When she said no, defendant
struck her repeatedly in the face and torso and forced himself on
her, with their son still seated in his car seat. The next day,
defendant came to her home and demanded she come down to the
car. After she agreed to talk with him, defendant raped her
again. A.H., at the urging of her mother, eventually reported the
rapes. She admitted she made inconsistent and incomplete
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statements to the police about the rapes because she feared her
children might be taken away since she had agreed both times to
see defendant.
In April 2019, A.H. was living in Long Beach but still
seeing defendant in public places away from her home. For
several months, A.H. had been trying to talk to defendant about
their relationship and her belief that they should only be friends.
On April 25, defendant called A.H. and demanded she come see
him. A.H. agreed to meet defendant at a Jack in the Box
restaurant in Los Angeles. She was scared but did not want him
coming to her home. A.H. arrived at the restaurant with their
five-year-old daughter and two-year-old son in the car with her.
Defendant got into the front passenger seat of A.H.’s car.
Defendant is six feet five inches tall and A.H. is just five feet tall.
A.H. went inside the Jack in the Box to get food for the children
and made other excuses to go inside several times, like taking the
children to the restroom, because she was fearful of defendant.
After looking at A.H.’s phone, defendant got angry. He accused
A.H. of having a man’s phone number noted on her phone.
Multiple videos from nearby security cameras captured the
assault that ensued and were shown to the jury. A.H. tried to
escape defendant several times, at first running back inside the
Jack in the Box. Defendant followed A.H. inside, hit her, picked
her up and threw her to the ground. He grabbed her again and
carried her back to the car. A.H.’s top was pulled off in the
struggle. She escaped the car again and ran, half naked out into
the street, trying to get help from passing cars and people inside
a liquor store. Defendant then used A.H.’s car, with the children
still in the back seat, to chase down A.H. He drove across traffic
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to the wrong side of the street and struck A.H. with the car. She
sustained numerous injuries and was taken to the hospital.
Defendant was charged, by amended information, with
eight felonies, six related to the April 2019 incident and two
related to the 2018 rape: kidnapping (Pen. Code, § 207, subd. (a);
count 1); two counts of injuring a spouse/girlfriend with a prior
conviction (§ 273.5, subd. (f)(1); counts 2 & 9); two counts of child
abuse (§ 273a, subd. (a); counts 3 & 4); assault with a deadly
weapon (§ 245, subd. (a)(1); count 6); attempted murder (§§ 187,
subd. (a), 664; count 7); and forcible rape (§ 261, subd. (a)(2);
count 8). It was alleged as to counts 1, 2, 6 and 7 that defendant
personally used a car as a deadly weapon in the commission of
the offenses. (§ 12022, subd. (b)(1).) (Count 5 was dismissed for
insufficient evidence at the preliminary hearing.)
At the close of the prosecution’s case, defendant stipulated
to his 2017 conviction for a violation of Penal Code section 273.5
where A.H. was the victim. Defendant did not present any
witnesses in his defense.
The jury found defendant guilty on all counts except
attempted murder and found true the special allegations. The
court sentenced defendant to 14 years four months in prison,
calculated as follows: an eight-year upper term on count 1
(kidnapping), the base term; a consecutive 20-month term on
count 2 (injury to girlfriend with prior conviction), one-third the
midterm plus four months for the deadly weapon enhancement; a
consecutive 16-month term on each of counts 3 and 4 (child
abuse), one-third the midterm; and a consecutive two-year term
on count 8 (rape), one-third the midterm. The court imposed and
stayed sentence on counts 6 and 9 pursuant to Penal Code section
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654. The court imposed a 10-year protective order and awarded
defendant 1,076 days of presentence custody credits.
Defendant timely appealed.
DISCUSSION
1. Prosecutorial Misconduct
Defendant contends the prosecutor committed misconduct
during closing argument by improperly vouching for the
credibility of the victim by arguing that law enforcement and the
district attorney’s office “failed” her when she previously reported
domestic abuse in 2017. Defendant says because no evidence was
put on about the handling and investigation of the prior
incidents, the jury was left to believe the prosecutor had some
insight or private knowledge about what had occurred that
resulted in the system purportedly failing A.H. Defendant says
the prosecutor’s vouching was particularly prejudicial because
the prosecutor exhorted the jury to find defendant guilty and not
allow the system to fail A.H. again.
It is undisputed defendant did not object to the statements
he now contends constitute improper vouching. Defendant has
therefore forfeited the contention on appeal. “It is well settled
that making a timely and specific objection at trial, and
requesting the jury be admonished . . . , is a necessary
prerequisite to preserve a claim of prosecutorial misconduct for
appeal.” (People v. Seumanu (2015) 61 Cal.4th 1293, 1328;
accord, People v. Huggins (2006) 38 Cal.4th 175, 205 (Huggins).)
In any event, no improper vouching occurred. Improper
vouching by a prosecutor about the strength of the prosecution’s
case generally “ ‘ “involves an attempt to bolster a witness by
reference to facts outside the record.” ’ ” (Huggins, supra,38 Cal.4th at p. 206.) Misconduct during argument is judged by
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considering the argument as a whole and in light of the entire
evidentiary record. (People v. Morales (2001) 25 Cal.4th 34, 47.)
Here, defense counsel, during his argument, said A.H. had
lied or at least changed her story about the 2018 rapes and also
suggested she likely embellished how many times defendant hit
her in the face given the lack of significant injuries to her face.
During rebuttal, the prosecutor responded to this argument by
conceding that A.H. had not been entirely truthful with law
enforcement because when she had previously reported abuse in
2017, the system failed her. The prosecutor then argued
reasonable inferences from the record that could account for A.H.
changing her story or being less than truthful on different
occasions. This was permissible argument based directly on
A.H.’s testimony in which she admitted she had not always been
forthcoming with law enforcement about defendant’s conduct and
had in fact lied about certain aspects of the 2018 rapes because
she feared the authorities would take away her children for
continuing to spend time with defendant despite his prior acts of
abuse.
As Huggins aptly states, it is not misconduct “to ask the
jury to believe the prosecution’s version of events as drawn from
the evidence. Closing argument in a criminal trial is nothing
more than a request, albeit usually lengthy and presented in
narrative form, to believe each party’s interpretation, proved or
logically inferred from the evidence, of the events that led to the
trial.” (Huggins, supra, 38 Cal.4th at p. 207.) That is what the
prosecutor did here.
Defendant also contends his trial counsel was ineffective
for failing to object to the prosecutor’s argument. Defendant’s
burden to establish ineffective assistance on direct appeal is
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significant. Defendant must demonstrate “both that trial counsel
failed to act in a manner to be expected of reasonably competent
attorneys acting as diligent advocates, and that it is reasonably
probable a more favorable determination would have resulted in
the absence of counsel’s failings.” (People v. Cudjo (1993)
6 Cal.4th 585, 623, citing Strickland v. Washington (1984)
466 U.S. 668, 687–696.) Moreover, counsel’s failure to object
rarely constitutes ineffective assistance. (Huggins, supra,38 Cal.4th at p. 206.) And, where, as here, the record on appeal
does not show why counsel failed to object “ ‘unless counsel was
asked for an explanation and failed to provide one, or unless
there simply could be no satisfactory explanation, the claim must
be rejected on appeal.’ ” (Ibid.)
Defendant cannot establish either element of an ineffective
assistance claim for the simple reason that, as we explained ante,
there was no improper vouching that warranted an objection.
Any objection would have been overruled.
2. Senate Bill 567
Senate Bill 567 went into effect on January 1, 2022, while
this appeal was pending. (Stats. 2021, ch. 731, § 1.3.) The
legislation made significant changes to the law under which
defendant was sentenced. Under former Penal Code
section 1170, the trial court had the discretion to consider
relevant aggravating and mitigating factors and to choose
whether to impose an upper, middle or lower term sentence. The
trial court here exercised its discretion to impose an eight-year
upper term sentence on the kidnapping count (count 1),
explaining its reasoning on the record in accordance with the law
as it existed at that time.
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Penal Code section 1170, subdivision (b)(2), as amended by
Senate Bill 567, now provides that the trial court must impose
the presumptive middle term of a sentencing triad unless “there
are circumstances in aggravation of the crime that justify the
imposition of a term of imprisonment exceeding the middle term,
and the facts underlying those circumstances have been
stipulated to by the defendant, or have been found true beyond a
reasonable doubt at trial by the jury or by the judge in a court
trial.” There is one exception. Section 1170, subdivision (b)(3)
provides that “[n]otwithstanding paragraphs (1) and (2), the court
may consider the defendant’s prior convictions in determining
sentencing based on a certified record of conviction without
submitting the prior convictions to a jury.”
As the People concede, the changes effected by Senate
Bill 567 apply retroactively to defendant’s case as they are
ameliorative in nature and therefore apply to all nonfinal
appeals. (See, e.g., People v. Brown (2012) 54 Cal.4th 314, 323
[discussing rule of In re Estrada (1965) 63 Cal.2d 740].)
Defendant argues the upper term sentence imposed on
count 1 under the former version of Penal Code section 1170 is
not valid. The People contend that defendant has not suffered
prejudice as any error in imposing the upper term sentence is
harmless beyond a reasonable doubt.
Several appellate courts have concluded that harmless
error analysis is appropriate in the context of Senate Bill 567
error. (See, e.g., People v. Flores (2022) 75 Cal.App.5th 495,
review den. Jun. 15, 2022, S274232; People v. Lopez (2022) 78
Cal.App.5th 459, review den. July 20, 2022, S274856 (Lopez);
People v. Dunn (2022) 81 Cal.App.5th 394, review granted
Oct. 12, 2022, S275655.)
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We agree. “ ‘ “Failure to submit a sentencing factor to the
jury, like failure to submit an element [of the crime] to the jury,
is not structural error.” [Citation.] Such an error does not
require reversal if the reviewing court determines it was
harmless beyond a reasonable doubt, applying the test set forth
in Chapman v. California (1967) 386 U.S. 18.’ ” (Lopez, supra,
78 Cal.App.5th at p. 465, review den., quoting People v. French
(2008) 43 Cal.4th 36, 52–53.)
However, there is disagreement about what exactly a
reviewing court must find in order to conclude such error was
harmless. Lopez appears to set the highest bar, holding that in
order to conclude the trial court’s reliance on aggravating factors
not found true by a jury or admitted by the defendant was not
prejudicial, a reviewing court must “conclude beyond a
reasonable doubt that a jury would have found true beyond a
reasonable doubt every factor on which the court relied, because
the amended statute requires that every factor on which a court
intends to rely in imposing an upper term, with the exception of
factors related to a defendant’s prior conviction(s), have been
admitted by the defendant or proven to a jury.” (Lopez, supra,
78 Cal.App.5th at pp. 465–466, review den.)
We need not resolve which formulation is the better
reasoned. We conclude the record is clear that under any
formulation, including Lopez, the error was harmless.
At the sentencing hearing, the court commented on the
trial evidence after hearing argument from counsel. The court
said it found the case to be a difficult one and that it was
miraculous A.H. did not sustain greater injuries. The court
referred to some of the more egregious aspects of the April 2019
assault and noted that “the factors in aggravation are
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overwhelming.” The court largely focused on A.H. being a
particularly vulnerable victim who was “tiny” compared to
defendant and in a “desperate” situation–a cycle of violence that
often resulted in her being assaulted in front of her young
children. The court also cited defendant’s previous assaults on
A.H. and that defendant was on probation at the time the current
charges took place.
The court allowed defendant to make some remarks and
then imposed sentence. The court deemed the kidnapping count
(count 1) to be the base term and imposed the upper term of eight
years based on the fact that A.H. was a particularly vulnerable
victim. (Cal. Rules of Court, rule 4.421(a)(3).) Earlier in the
hearing, the court identified several other aggravating factors,
including that the crime involved great violence, the defendant
used a weapon during the commission of the crime, and
defendant was on probation when the crime was committed.
(Rule 4.421(a)(1), (2) & (b)(4).)
The evidence was overwhelming and uncontradicted that
defendant was significantly larger than A.H., who by all accounts
was diminutive, and that defendant committed the violent
assault on A.H.—an assault the violence of which was captured
on video from multiple angles, and which occurred almost
entirely in front of A.H.’s minor children. The defense case was
focused mainly on arguing that defendant’s actions showed rash,
impulsive and out-of-control behavior and no premeditation or
intent to kill A.H. The jury acquitted defendant of attempted
murder, but otherwise convicted him on all charges.
We conclude from this record that it is beyond question the
jury would have found beyond a reasonable doubt that A.H. was a
particularly vulnerable victim and that the assault involved great
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violence. As for the use of a car as a deadly weapon, the jury
found true that special allegation. And defendant stipulated to
his prior 2017 conviction. Defendant was in fact on probation at
the time of the assault, and therefore the jury would have found
that fact was true beyond a reasonable doubt if it had been
presented to them. Accordingly, any error was harmless.
DISPOSITION
The judgment of conviction is affirmed.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
HARUTUNIAN, J.
 Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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