People v. Gaines CA2/1 ( 2023 )

Filed 12/29/23 P. v. Gaines CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION ONE
THE PEOPLE, B317632
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. NA115137)
v.
RAPHAEL GAINES,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Laura L. Laesecke, Judge. Affirmed with
instructions.
Robert A. Werth, 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, Steven D. Matthews and Stephanie C. Santoro,
Deputy Attorneys General, for Plaintiff and Respondent.
Appellant and defendant Raphael Gaines appeals from a
judgment of conviction for multiple crimes based on his repeatedly
beating his former girlfriend and using force and the threat of
force to obtain money from her. He challenges the sufficiency
of the evidence to support two of these convictions, contends
numerous trial errors occurred, challenges the court’s imposition
of the aggravated term on count 1, and seeks to correct the
characterization of count 1 in the abstract of judgment. We agree
that the abstract of judgment must be corrected, but otherwise
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. Charges and Convictions
A criminal information charged Gaines with: (1) two counts
of inflicting corporal injury on a girlfriend in violation of Penal Code
section 273.5, subdivision (a),1 (2) attempted extortion in violation
of sections 518 and 664, (3) second degree robbery in violation
of section 211, and (4) making a criminal threat in violation of
section 422, subdivision (a). A jury found him guilty of all crimes
charged. As to counts 1 and 3, the jury found true the alleged
aggravating circumstance that, within the past seven years, he
had sustained a prior conviction for injuring a spouse. The court
sentenced Gaines to the aggravated term of four years on count 1,
and one-third the midterm (2 years concurrently) on counts 2, 3,
and 4, and, pursuant to section 654, stayed the sentence on count 5.
1 Subsequent statutory references are to the Penal Code.
2
B. Evidence Presented At Trial
1. Testimony of G.D.
G.D., the victim of the crimes charged, testified as follows:
G.D. and Gaines met online and began dating in early 2020.
To assist Gaines financially, G.D. paid for several of Gaines’s
expenses, including three car payments. After Gaines lost his
job, he wanted G.D. to give him more money. When G.D. refused,
Gaines became physically abusive. In approximately May 2020,
G.D. reversed the three $200 car payments she had made on his
behalf, and Gaines’s car was repossessed three to four weeks later.
a. Events of July 2, 2020
On the morning of July 1, 2020, G.D. and Gaines were at
a hotel together. Gaines claimed G.D. owed him $5,000 for the
repossessed vehicle. To placate Gaines, G.D. told him she would
get money from her retirement account to pay him. The following
morning Gaines “figured out” G.D. had not been “fully truthful”
and repeatedly struck her with an open hand on her head,
shoulders and back, then kicked her when she fell to the ground.
These actions constituted the factual basis for count 1, “willfully
inflict[ing] corporal injury resulting in a traumatic condition” on
a romantic partner. (§ 273.5, subd. (a); see id. subd. (a)(3).)
Later that morning they drove G.D.’s vehicle to her bank.
Gaines told G.D. that if she came out without the money, he would
break her jaw and “physically embarrass [her]” in front of everyone.
G.D. applied for a $5,000 loan, but the application was denied.
When the bank employee offered to call the police on G.D.’s behalf,
G.D. declined the offer because she was afraid of what Gaines might
do. These events were the factual basis for count 2, attempted
extortion. (See §§ 518, 664.)
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The bank employee offered to tell Gaines that G.D. was
unable to withdraw money because of banking security measures
that had tightened during the pandemic. When the employee
approached Gaines, he refused to speak with her and told G.D. to
get in the car and drove to a more secluded part of the parking lot.
Once there, Gaines began yelling at G.D., saying that she was
wasting his time by lying and playing games, and that he wanted
his money. He began “whaling . . . on [G.D.],” hitting her head,
shoulders, and back with an open hand. These actions formed the
factual basis for count 3, willful infliction of corporal injury on a
romantic partner, the second section 273.5 violation.
G.D. then drove Gaines to the location where he was
staying and dropped him off. G.D. was in a lot of pain. When she
arrived home she took pictures of bruises on her arms, shoulder,
and chest. The prosecution offered these photographs into evidence.
These bruises had not been present the day before (on July 1).
Later that evening, Gaines called G.D. and demanded she
pay him the $200 impound fee for his vehicle. Gaines became
verbally abusive when G.D. refused. He told her he was coming
over to her house to collect the money and would hurt her and her
family if she did not pay him. In fear of Gaines, she left her house
with her children. Gaines called her again and again threatened
and verbally abused her. Portions of these two phone calls were
recorded by G.D.’s son and played for the jury.
b. Events of July 3, 2020
On July 3, 2020, Gaines contacted G.D. and again demanded
she reimburse him for the impound fee. G.D. withdrew the money
from an ATM and took it to Gaines. Gaines entered G.D.’s vehicle
and directed G.D. to drive to the mall saying he wanted to buy
new clothes. Although she drove to the mall, she refused to go in,
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whereupon Gaines struck her face, knocking her head into the
window. Eventually Gaines got out of the vehicle and started
walking toward the mall.
When G.D. realized Gaines had her cell phone, she decided
to accompany him to the mall so she could retrieve it. In the mall,
G.D. attempted to approach a security guard, but Gaines grabbed
her by the neck and directed her to an ATM. He demanded that
she withdraw $700, and said to her, “ ‘You are playing games.
You’re playing with my money.’ . . . ‘I will seriously hurt you and
kill you.’ ” G.D. withdrew $100 and gave it to Gaines to “get him
off [her] back.” These events formed the factual basis for count 4,
robbery. (§211.)
Gaines then demanded that they go to another ATM so G.D.
could withdraw more money to give to him. Gaines threatened
to kill G.D. if she did not comply, and G.D. felt afraid. These
events formed the factual basis for count 5, criminal threat. (§ 422,
subd. (a).)
They drove to a bank where Gaines again demanded money.
She withdrew $150 and gave it to Gaines. She told Gaines she
could not get any more money out of the bank. Gaines then drove
to where he was staying. G.D. asked Gaines to return the $250
she had given him. He refused and stated that if she did not give
him the rest of the money he would “ ‘beat the . . . shit out of [her].’ ”
G.D. then drove home. That night, July 3, 2020, G.D. reported
“everything” to the Long Beach Police Department. She made
subsequent police reports as well, but did not specify when she had
done so. G.D. ended her relationship with Gaines after the July 3
incidents.
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2. Testimony of G. Rodriguez
G. Rodriguez, an employee at G.D.’s bank, testified regarding
G.D.’s July 2, 2020 encounter at the bank as follows:
Rodriguez was working that day when G.D. came into the
bank, and Rodriguez helped her apply for a loan. G.D. appeared
very nervous and as if she had been crying. When Rodriguez
told G.D. the loan application was denied, G.D. “instantly”
began crying. When counsel asked Rodriguez whether, “at that
point[,] . . . [G.D.] explain[ed] to [Rodriguez] why she was applying
for the loan” or “[w]hy she was there [at the bank],” Rodriguez
testified (over defense counsel’s objection) that G.D. “mentioned
that she was in an abusive relationship and that that person drove
her there and . . . [was] waiting outside in the car, and that she
couldn’t walk out without giving him the money.” When Rodriguez
offered to call the police, G.D. explained she did not want to do so
because “it would make things worse” and because she “feared for
her life.” Rodriguez did not see any injuries on G.D.
3. Defense Case
At trial, defense counsel attempted through cross-
examination of G.D. and the presentation of other evidence
to portray G.D. as a scorned lover who was fabricating her
allegations of abuse because she was upset that Gaines was
involved with another woman.
Defense counsel showed G.D. several text message exchanges.
Some were between G.D. and Gaines after the July 3 incident,
in which the two appeared friendly and discussed finding Gaines
an apartment with G.D. as a co-signor on the lease. Some were
between G.D. and a female acquaintance of Gaines in which G.D.
claimed G.D. was pregnant with Gaines’s child. G.D. also sent the
acquaintance pictures G.D. had taken of her bruises. G.D. denied
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sending or receiving any of these messages. G.D. admitted she
took Gaines’s cell phone without his permission, secretly used
his password, and contacted some women with whom he was
exchanging messages in order to find out the nature of the
women’s relationships with Gaines.
Defense counsel also introduced a series of exhibits showing
G.D. made a claim to her bank that three payments from her
account to “Mas Financial” were fraudulent. Defense counsel
asserted these were the car payments on Gaines’s behalf that had
been refunded to G.D. G.D. denied this and claimed the exhibits
related to different fraudulent charges Gaines made on her ATM
card.
Defense counsel also offered Long Beach police officer
testimony and police records reflecting that G.D. did not report the
July 2 or July 3 incidents until July 14 and July 21, respectively.
One Long Beach police officer testified that he responded to a
domestic violence call at G.D.’s apartment on July 4, 2020 and did
not recall G.D. describing any of the specific events of July 2 or 3
at that time. Police records reflected that G.D. did tell the officer
on July 4 that “ ‘[Gaines] has threatened . . . in the past to harm
her. [She] [j]ust received a text from [Gaines] saying he was going
to come over with people.’ ”
Below we provide additional factual detail as needed to
address Gaines’s claims of error.
DISCUSSION
Gaines seeks relief on appeal based on the following
arguments: (1) The prosecutor’s closing argument misstated the
reasonable doubt standard; (2) The evidence was insufficient to
support both counts of violating section 273.5; (3) The jury should
have been instructed on the lesser included offense of spousal
7
battery; (4) Rodriguez’s testimony included inadmissible hearsay;
and (5) The court did not have the statutorily required basis to
impose an aggravated term at sentencing. Lastly, Gaines asks
that we correct the abstract of judgment because it inaccurately
describes the conviction on count 1. We address each argument
in turn below.
A. Prosecutorial Error
1. Prosecutor’s Statements Explaining
Reasonable Doubt
The court instructed the jury with CALJIC No. 2.90 on
the reasonable doubt standard of proof. That instruction defines
reasonable doubt as “not a mere possible doubt . . . because
everything relating to human affairs is open to some possible or
imaginary doubt. It is that state of the case which, after the entire
comparison and consideration of all the evidence, leaves the minds
of the jurors in that condition that they cannot say they feel an
abiding conviction of the truth of the charge.”
The prosecutor quoted this instruction in his closing
argument and rebuttal argument, but went on to further explain
the meaning of “beyond a reasonable doubt” in a manner that
Gaines argues misrepresented (and lessened) the prosecution’s
burden of proof.
The prosecutor asked the jury to “consider” the reasonable
doubt instruction “in tandem” with the circumstantial evidence
instruction (CALJIC No. 2.01). The prosecutor stated: “[CALJIC
No. 2.01] is a different instruction but it is the last sentence.
It says if, on the other hand, one interpretation of the evidence
appears to you to be reasonable and the other interpretation
unreasonable, you must accept the reasonable interpretation
and reject the unreasonable. That’s really what proof beyond
8
a reasonable doubt boils down to.” Later, the prosecutor stated:
“The defense and I are arguing about possibilities in the case. And,
ladies and gentlemen, based on the evidence, the only reasonable
possibility is that these five crimes occurred. What they’re arguing
to you, [defense counsel], is an unreasonable possibility and,
therefore, you must reject it. Here’s why it is unreasonable.” The
prosecutor then argued that the defense wanted the jury to believe
G.D. was a liar, but that believing this required the jury to accept
that there is no explanation for the photographs of her injuries,
other than G.D. somehow “beat[ing] herself up” to punish Gaines.
The prosecutor argued it would be “absurd” for a person to “inflict
bruises on their own body in order to get back at somebody else.”
Likewise, the prosecutor argued that the defense’s theory that
G.D. was a liar meant that Rodriguez’s testimony must also
be fabricated, and that there was a “big conspiracy” or plan between
G.D. and Rodriguez to punish Gaines. The prosecutor argued this
was also “absurd” and “unreasonable.” Lastly, the prosecutor noted
that, in order to accept the defense version of events despite the
recorded phone calls of Gaines threatening G.D., the jury
would need to believe that G.D. “somehow got on some sort of
photoshop program and did a bunch of fancy audio editing,
fabricated [Gaines’s] voice to come up with this angry tone of voice.”
The prosecutor noted that although it is “possible” G.D. did this,
such a possibility was “totally unreasonable.” Defense counsel
repeatedly objected to these statements as improper argument,
and the court overruled the objections.
2. The Posited Prosecutorial Error
A prosecutor’s misstatement of the reasonable doubt standard
is “ ‘prosecutorial error,’ ” based on which relief may be granted on
appeal. (See People v. Centeno (2014) 60 Cal.4th 659, 667; see id.9
at pp. 666–667 & 672 (Centeno).) Although “[a]dvocates are given
significant leeway in discussing the legal and factual merits
of a case during argument[, citation] . . . ‘it is improper for the
prosecutor to misstate the law generally [citation], and particularly
to attempt to absolve the prosecution from its . . . obligation to
overcome reasonable doubt on all elements [citation].’ ” (Id. at
p. 666, quoting People v. Marshall (1996) 13 Cal.4th 799, 831.)
Thus, it is error for a prosecutor to imply that “so long as [the
prosecutor’s] interpretation of the evidence was reasonable, the
People [have] met their burden.” (Centeno, supra, at p. 672.)
Gaines argues this is exactly what the prosecutor’s description
of the reasonable doubt standard did.
We disagree. The prosecutor here argued that the
only reasonable interpretation of evidence was that it met the
prosecution’s burden, and that the jury should reject the defense’s
arguments as to why the evidence did not meet the prosecution’s
burden, because they required the jury to accept unreasonable
assumptions. In the primary authority Gaines cites for this point,
the California Supreme Court expressly permits such argument,
stating that “[i]t is permissible to argue that the jury may reject
impossible or unreasonable interpretations of the evidence and to
so characterize a defense theory.” (Centeno, supra, 60 Cal.4th at
p. 672.) On reply, Gaines contends that the prosecutor’s argument
“equat[ing] proof beyond a reasonable doubt with the circumstantial
evidence instruction and inform[ing] the jury that reasonable doubt
‘boils down’ to whether defense counsel’s argument is reasonable”
implicitly conveyed that the prosecution could meet its burden by
offering only a reasonable interpretation of the evidence consistent
with guilt. This characterization ignores the context in which
the prosecution made these arguments: namely, responding to
the defense theory of the case. Understood in this context, the
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comments did not encourage the jury to use reasonable possibilities
as a substitute for evidence, as Centeno proscribes, but rather
proposed that the only doubt one might have about whether
the evidence supported all elements of the crime would be an
unreasonable doubt—that is, one requiring an unreasonable
interpretation of the evidence. This is an accurate and permissible
statement of the law. (See, e.g., People v. Cowan (2017) 8
Cal.App.5th 1152, 1162 [prosecution statement that “beyond a
reasonable doubt means ‘you’re firmly convince[d] that guilt is the
only reasonable interpretation of the evidence’ ” was “an accurate
statement of the meaning of beyond a reasonable doubt”].) No
prosecutorial error occurred.
B. Section 273.5 Violations
Gaines raises various arguments relating to his two
convictions for violating section 273.5. That section addresses,
inter alia, the “willful[ ] inflict[ion of] corporal injury resulting in
a traumatic condition upon a victim . . . [¶] . . . [¶] . . . with whom
the offender has, or previously had, a[ ] . . . dating relationship.”
(§ 273.5, subds. (a) & (a)(3).) The statute defines “ ‘traumatic
condition’ ” as “a condition of the body, such as a wound, or external
or internal injury . . . whether of a minor or serious nature, caused
by a physical force.” (Id., subd. (d).) The statute is violated “only
if corporal injury results from the ‘direct application of force on the
victim by the defendant.’ [Citations.]” (People v. Johnson (2007)
150 Cal.App.4th 1467, 1477 (Johnson).)
1. Sufficiency of the Evidence
Gaines argues the evidence is insufficient to support either
of the two section 273.5 violations because “the prosecutor failed
to present evidence to establish the injuries suffered by [G.D.]
and apparently caused by Gaines were attributable to a specific
11
incident”—that is, the incident that occurred in the morning of
July 2, 2020, or the incident that occurred in the afternoon on that
date. The factual basis for the first of the two section 273.5 counts
were events of that morning in a hotel room, when Gaines struck
G.D. on the head, shoulders, and back, and kicked her after she
fell to the ground. The factual basis for the second section 273.5
count were events occurring in the afternoon of the same day, when
Gaines hit G.D. on the head, shoulder, and back while the two were
in the car parked in the bank parking lot. As proof that both of
these beatings resulted in a “traumatic condition”—a necessary
element of a section 273.5 violation (§ 273.5, subd. (a))—the
prosecution offered testimony and photographs of the bruising
G.D. discovered on the evening of July 2, 2020 on her arms, chest,
back, and shoulder. Gaines argues that there is nothing to link the
bruises with the first, as opposed to the second, incident on July 2,
or vice versa, and that although it is possible both attacks caused
portions of the bruising, it is equally possible that only one of
the two did. Thus, Gaines argues, “the only way to reach [the]
conclusion [that both incidents resulted in the bruising] is through
speculation,” which is insufficient to support a conviction. (See
People v. Berryman (1993) 6 Cal.4th 1048, 1081 [speculation is not
substantial evidence to support a conviction].)
Gaines’s argument misunderstands the applicable substantial
evidence standard of review. Applying this standard, we consider
whether any reliable and admissible evidence in the record supports
the factual findings at issue (see People v. Bassett (1968) 69 Cal.2d
122, 138)—here, the findings that both the morning and afternoon
beatings contributed to the bruises G.D. found on her body that
night. Applying these concepts here, evidence that G.D. found
bruises on her body on the evening of July 2, 2020, that these
bruises were consistent with the place Gaines struck her in both
12
the morning and afternoon, and that these bruises were not present
the day before, all support a reasonable inference that the bruises
resulted in part from the beating she received that morning and in
part from the beating she received that afternoon.
The authorities Gaines cites do not support a contrary
conclusion. In People v. Beasley (2003) 105 Cal.App.4th 1078, the
defendant was convicted of numerous violations of section 273.5,
based on physical altercations occurring on different days, months
apart from each other. (Id. at pp. 1085–1086.) Although there
was evidence of bruising following some of the incidents, the victim
testified she “did not know” whether one particular incident—the
only one on a particular day—“caused her any additional bruises,
and there were no other witnesses to the results of that incident.
Accordingly, the evidence was insufficient to permit reasonable
jurors to find any traumatic condition resulted from the [particular]
beating forming the basis of [the] count” based on that incident.
(Id. at p. 1086.) As for another incident on another day that formed
the basis for another count—again, the only one that occurred on
that day—the victim “did not describe, and the prosecutor did not
ask about, any wound or injury resulting from this incident . . .
[and] there were no witnesses to any wounds or injuries she
sustained at that time.” (Ibid.) Here, by contrast, there is both
testimony and photographic evidence of bruising the jury could
infer resulted from both July 2 beatings.
Johnson, supra, 150 Cal.App.4th 1467 is likewise unhelpful to
Gaines, as it addresses the distinct issue of “whether [a] defendant
may receive multiple convictions for violating section 273.5 where
the convictions are based upon multiple injuries inflicted during a
single course of conduct” (Johnson, supra, at p. 1474)—namely, a
single beating. (Id. at pp. 1472–1473.) In deciding this issue, the
court needed to consider whether sufficiently distinct traumatic
13
conditions were inflicted during the single beating to support
multiple convictions. We need not parse out the harm caused by
Gaines in this manner, because the two counts are based on two
separate courses of conduct.
Substantial evidence thus supports both convictions under
section 273.5.
2. Jury Instructions
A court is obligated to instruct the jury on a lesser included
offense “whenever evidence that the defendant is guilty only of
the lesser offense is ‘substantial enough to merit consideration’
by the jury[,] [citations] . . . [meaning] ‘ “evidence from which a
jury composed of reasonable [persons] could . . . conclude[ ]” ’ that
the lesser offense, but not the greater, was committed.” (People v.
Breverman (1998) 19 Cal.4th 142, 162.) Gaines argues that, for the
same reason the evidence was insufficient to find him guilty of two
counts of violating section 273.5, the evidence permitted the jury to
conclude that the bruising G.D. found on the evening of July 2 was
attributable to only one of the two beatings she received that day,
and that Gaines was thus guilty of only one section 273.5 violation
(based on the one beating causing the bruising), with the other
beating supporting only a conviction for spousal battery—a lesser
included offense to a section 273.5 violation, the difference between
the two being the lack of traumatic injury to the victim. (See § 243,
subd. (e)(1).)
Even assuming, for the sake of argument, the court erred
in failing to instruct the jury on spousal battery, any such error
would be harmless, because it is not reasonably probable that
Gaines would have obtained a different verdict, had the jury
received such additional instructions. (People v. Gonzalez (2018)
5 Cal.5th 186, 196 [failure to instruct on lesser included offense
14
subject to the state law harmless error test set forth in People v.
Watson (1956) 46 Cal.2d 818, 836].) No evidence suggests that
one of the beatings G.D. suffered on July 2 was more severe
than the other, or that for some other reason one would have
left bruising, while the other did not. Thus, it is not reasonably
probable that the jury would have speculated as to which beating
the bruising was attributable to. The court’s failure to instruct on
the lesser included offense of spousal battery—even assuming, for
the sake of argument, that this was error—is not a basis for relief
on appeal.
C. Hearsay Testimony
Gaines next argues that the court reversibly erred by
permitting Rodriguez to testify as to statements G.D. made
to Rodriguez on July 2,, 2020. Specifically, Rodriguez testified
G.D. stated that she was applying for a loan because she was in
an abusive relationship, her abuser had taken her to the bank,
she feared what he would do if she did not give him the money,
calling the police would only make matters worse, and she feared
for her life. Gaines argues the court incorrectly overruled his
hearsay objections to this testimony because it relays out of court
statements by G.D. offered for their truth, to which no hearsay
exception applies. The Attorney General counters that several
hearsay exceptions apply.
But even assuming, without deciding, that these statements
reflect inadmissible hearsay, their admission does not constitute
reversible error, because it is not reasonably probable that a result
more favorable to Gaines would have been reached if the testimony
had not been admitted. (See People v. Harris (2005) 37 Cal.4th 310,
336 [admission of inadmissible hearsay subject to Watson state
law harmless error test].) Rodriguez’s testimony was not necessary
15
to support any essential element of any of the crimes charged.
Gaines argues, however, that Rodriguez’s testimony helped secure
the convictions by bolstering G.D.’s credibility. Specifically, he
argues that because “[G.D.]’s credibility was essential to obtain
a conviction, [and] defense counsel effectively impeached [her]
credibility by establishing inconsistencies in her testimony[,]”
“[a]llowing Rodriguez to improperly bolster [G.D.]’s testimony” in
turn bolstered the prosecution’s entire case. We are not persuaded.
First, other portions of Rodriguez’s testimony to which no hearsay
objection was (or could have been) made—for example, that G.D.
appeared nervous in applying for the loan and began crying when
it was denied—also corroborated G.D.’s testimony about the events
of that day, including that she was seeking the loan while under
duress. More importantly, the phone call recordings played for
the jury corroborated—arguably much more strongly than G.D.’s
statements to Rodriguez— G.D.’s testimony that Gaines was
abusive, that he threatened to harm her if she did not get him
money, and that he did this during the relevant time frame. The
photographs of G.D.’s bruises and evidence regarding G.D.’s reports
to police likewise corroborated her testimony about Gaines being
abusive. It is thus not reasonably probable that hearsay testimony
relaying G.D.’s statements about the reason she was applying for
the loan and the abusive nature of her relationship with Gaines
improved the jury’s view of G.D.’s credibility to such an extent that
the exclusion of that testimony would have changed the jury’s
verdict.
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D. Sentencing Errors
1. Sentencing Hearing and Evidence of
Prior Convictions
The court had before it at sentencing a certified record of
arrest and prosecution sheet, as well as minute orders, evidencing
Gaines’s four prior convictions: a 2019 misdemeanor violation of
domestic battery (Exh. 12), a 2008 felony conviction for domestic
violence (Exh. 13), a 2004 felony conviction for domestic violence
(Exh. 14), and a 2001 misdemeanor conviction for domestic violence
(Exh. 15). The only prior conviction allegation included in the
criminal information was the 2019 domestic violence conviction,
which the jury found true.
At the sentencing hearing, the court stated that on count 1
(violation of section 273.5), it was imposing the aggravated term,
based on the 2019, 2008 and 2004 convictions. The court, however,
went on to explain the aggravated term was also appropriate
because “Gaines has a significant criminal history involving this
exact crime,” specifically the 2004 and 2008 convictions, and a
2018 pandering conviction. “I think that . . . Gaines is a significant
risk to the community because I’m seeing he does not change his
behavior . . . and any woman in his sights is in danger, and they
won’t know.” The court then asserted that “[a]nytime he goes
online and he gets out of custody and starts to do the online dating
again, those women are entirely vulnerable to . . . Gaines’s lack
of respect for women. That’s why I believe that the high term is
appropriate.”
2. Imposition of Aggravated Term on Count 1,
Violation of Section 273.5
Under section 1170, “[w]hen a judgment of imprisonment
is to be imposed and the statute specifies three possible terms”
17
(§ 1170, subd. (b)(1)), the middle term is the presumptive term
of imprisonment and the trial court must “order imposition
of a sentence not to exceed the middle term” 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.” (§ 1170, subd. (b)(1), (2).) Gaines argues that the court ran
afoul of section 1170, because in sentencing him to greater than
the presumptively applicable middle term on count 1, the court
relied on facts to which he had not stipulated and that the jury
had not found true—namely, that Gaines suffered three prior
convictions, and that Gaines posed a threat to women he meets
online. But section 1170 also provides an exception to the rule
that an aggravated sentence must be based on facts found by the
jury: “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.” (§ 1170,
subd. (b)(3).) The 2019, 2008, and 2004 prior convictions on which
the court stated it was relying were evidenced by certified records.
These are thus an independently sufficient basis for imposing the
higher term sentence. This is no less true simply because the court
mentioned additional factors not found by the jury as additional
bases for justifying an aggravated sentence.
Gaines further argues that these prior convictions “do not
justify” imposition of the aggravated term because they are too
minor and/or remote in time. Gaines cites no authority for this
argument, nor does he even explain why convictions reflecting
multiple instances of domestic violence in the past would not
justify increasing the sentence for a new offense involving
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domestic violence. Gaines has not established any error in the
court’s imposition of the aggravated term for count 1.
3. Clerical Error in the Abstract of Judgment
Both parties argue that the abstract of judgment incorrectly
reflects that a violation of section 273.5 is a serious and/or violent
felony. We agree the abstract is incorrect in this respect (see
§§ 667.5, subd. (c), 1192.7, subd. (c)), and that the abstract of
judgment should be corrected to remove this finding as to count 1.
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DISPOSITION
The court shall correct the abstract of judgment to remove
the finding as to count 1 that the violation of section 273.5 reflected
therein is a serious and/or violent felony. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
WEINGART, J.
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