People v. Clerisse CA4/3 ( 2024 )

Filed 9/12/24 P. v. Clerisse CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent, G063023
v. (Super. Ct. No. 23HF0416)
JOHN ERNEST CLERISSE, OPINION
Defendant and Appellant.
Appeal from a judgment of the Superior Court of Orange County,
Michael J. Cassidy, Judge. Affirmed.
Larenda R. Delaini, under appointment by the Court of Appeal,
for Defendant and Appellant.
No appearance for Plaintiff and Respondent.
* * *
In 2023, a jury found defendant John Ernest Clerisse guilty of
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four counts of criminal threats (Pen. Code, § 422, subd. (a)) and one count of
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violating a protective order (§ 166, subd. (c)(1)). The court subsequently
granted defendant’s motion to dismiss two of the criminal threats counts but
denied the motion as to one of the criminal threats counts. The court also
dismissed two of defendant’s prior strikes.
The court sentenced defendant to 3 years 8 months in state
prison as follows: (1) the upper term of three years for one count of criminal
threats; and (2) a consecutive one-third middle term of eight months for the
other count of criminal threats. The court stayed sentence on the violation of
a protective order count pursuant to section 654.
Defendant filed a notice of appeal, and his appointed counsel filed
a brief pursuant to People v. Wende (1979) 25 Cal.3d 436 (Wende) setting
forth the facts of the case and requesting we review the entire record.
Pursuant to Anders v. California (1967) 386 U.S. 738 (Anders), counsel
identified potential issues to assist in our independent review. Defendant was
given the opportunity to file written argument on his own behalf, but he has
not done so.
We have reviewed counsel’s brief and examined the record in
accordance with our obligations under Wende and Anders. We find no
arguable issues on appeal and therefore affirm.
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All further statutory references are to the Penal Code unless
otherwise stated.
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The jury also found defendant was not guilty of one count of
attempted criminal threats (§§ 422, subd. (a), 664) and one count of criminal
threats (§ 422, subd. (a)).
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FACTS
At some point, defendant had issues with his vehicle and could
not pay the mechanic for the repairs. The victim, a general contractor who
had a business relationship with defendant, purchased the vehicle from the
mechanic and loaned it back to defendant. Defendant ultimately did not
repay the victim, and they stopped working together. Defendant
subsequently made several threatening phone calls and left threatening
voicemails for the victim. Relevant sentencing and procedural facts are
summarized below.
DISCUSSION
Defendant’s counsel suggests we consider the following issues:
(1) whether “the trial court properly imposed an upper term sentence when
the prosecutor neither alleged aggravating factors in the charging document
nor provided notice of its intent to seek the upper term”; (2) whether “the
trial court abused its discretion by imposing an upper term sentence when
factors in mitigation outweighed those in aggravation”; (3) whether “the trial
court properly imposed an upper term sentence without an admission or jury
finding the aggravating factors true beyond a reasonable doubt”; (4) whether
“the prosecutor engaged in misconduct by vouching for [the victim] during
closing argument”; and (5) whether “the prosecutor violated the Racial
Justice Act by excusing a juror who expressed a general concern[] about the
trustworthiness of police officers.” None of the above constitute a reasonably
arguable issue on appeal.
First, the court relied on defendant’s prior convictions to impose
an upper term sentence, and defendant had notice because the prior
convictions were alleged in the information. For these reasons, defendant had
notice of potentially aggravating circumstances. In any event, section 1170
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does not “require that any circumstances in aggravation be alleged in an
indictment or information.” (People v. Pantaleon (2023) 89 Cal.App.5th 932,
940.) Defendant’s counsel cites to section 1170.1, subdivision (e), but that
statute “does not apply to factors in aggravation used to impose an upper
term.” (Pantaleon, at p. 939; see People v. Hall (2023) 97 Cal.App.5th 1084,
1095 [same], review granted Feb. 28, 2024, S283530.) There is nothing “that
would permit us to conclude [defendant] has a due process right to require
the People to plead the prior conviction factors cited by the trial court in
selecting the upper term . . . .” (Pantaleon, at p. 941.)
Second, the court did not abuse its discretion by selecting the
upper term of three years for one of the criminal threats counts. Under
section 1170, “the court shall, in its sound discretion, order imposition of a
sentence not to exceed the middle term” (id., subd. (b)(1)) unless aggravating
circumstances justifying a higher term have been stipulated to by the
defendant or found true beyond a reasonable doubt by the jury or judge in a
bench trial (id., subd. (b)(2)). Notwithstanding the above, under section 1170,
subdivision (b)(3), “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.” (Ibid.) The latter provision does
not apply to enhancements imposed on prior convictions. (Ibid.)
Here, the court relied on section 11703 and found factors in
aggravation in selecting the upper term. The court noted defendant had
“numerous prior convictions, four prison terms, prior prison terms for the
same conduct two prior times . . . in 2016 [and] in 2020.” The court made
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The court stated it considered “1170(3).” Given the context of
the court’s statements regarding defendant’s prior convictions, we
understand the court to have referred to section 1170, subdivision (b)(3).
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these findings after receiving a certified record of conviction from the
prosecution. The court further stated: “[Defendant] continued to make
threatening phone calls in this case, even after he was arrested. And
according to Probation, he mentioned that he’s still making calls, but there’s
nothing to support that, so I won’t consider that. [¶] But while in custody on
the original case, he was still making threatening phone calls.” Aggravating
circumstances accordingly justified a higher term.
Third, the rule that aggravating circumstances must be
stipulated to by the defendant or found true beyond a reasonable doubt is
irrelevant here. (§ 1170, subd. (b)(1), (b)(2).) The court explicitly stated it
relied on section 1170, subdivision (b)(3), which permits a court to consider a
defendant’s prior convictions without submitting the convictions to a jury.
(Ibid.)
Fourth, the prosecutor did not impermissibly vouch for the victim
during closing argument by stating: “[The victim], when he was on the stand,
he was not out there to just settle a score. If he didn’t remember something,
he said he didn’t remember.” “‘“Improper vouching occurs when the
prosecutor either (1) suggests that evidence not available to the jury supports
the argument, or (2) invokes his or her personal prestige or depth of
experience, or the prestige or reputation of the office, in support of the
argument.”’” (People v. Lamb (2024) 16 Cal.5th 400.) But “‘a prosecutor’s
assurances regarding the apparent honesty or reliability of prosecution
witnesses’” cannot be characterized as improper vouching if they “‘are based
on the “facts of [the] record and the inferences reasonably drawn therefrom,
rather than any purported personal knowledge or belief.”’” (Ibid.) Here, the
prosecutor’s statement provided assurances about the apparent reliability of
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the victim based on the record. The prosecutor did not rely on his own
personal knowledge or evidence outside the record.
Finally, the prosecutor did not violate the California Racial
Justice Act of 2020 (Stats. 2020, ch. 317) by using a peremptory challenge to
excuse a potential juror who was a white male. Under Code of Civil Procedure
section 231.7, the exercise of a peremptory challenge against a potential juror
based on his or her “[e]xpressing a distrust of or having a negative experience
with law enforcement or the criminal legal system” (id., subd. (e)(1)) is
presumptively invalid “unless the party exercising the peremptory challenge
can show by clear and convincing evidence that an objectively reasonable
person would view the rationale as unrelated to a prospective juror’s race,
ethnicity, gender, gender identity, sexual orientation, national origin, or
religious affiliation, or perceived membership in any of those groups, and that
the reasons articulated bear on the prospective juror’s ability to be fair and
impartial . . .” (id., subd. (e)).
Defendant’s counsel questions whether the prosecutor violated
the latter provision by excusing a potential juror who expressed a concern
about the trustworthiness of police officers. The prosecutor’s peremptory
challenge was not based on the potential juror’s distrust or negative
experience with law enforcement. Instead, the prosecutor explained his
peremptory challenge during a sidebar: “When I . . . asked [the potential
juror] if his idea of the law—like criminal threats—differed from what the
elements were, he wavered.” The prosecutor explained: “[The potential juror]
said it may seem off to him, he may have—you know, he can’t promise
anything, there may be an implicit bias.” The prosecutor further argued the
victim in the case was a white male like the potential juror, there were
several white males left on the panel, and this was the prosecutor’s first
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peremptory challenge. The court noted the potential juror had said he did not
trust police officers, but the prosecutor responded that was not the basis for
his peremptory challenge. In short, the prosecutor did not violate Code of
Civil Procedure section 231.7, subdivision (e).
We have further reviewed the record in accordance with our
obligations under Wende, supra, 25 Cal.3d 436, and find no other arguable
issues on appeal.
DISPOSITION
The judgment is affirmed.
SANCHEZ, J.
WE CONCUR:
GOETHALS, ACTING P. J.
MOTOIKE, J.
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