People v. Sample

• Decision Date: 13 September 2004
• Docket Number: No. C044445.,C044445.
• Citation: 122 Cal.App.4th 206,18 Cal.Rptr.3d 611
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. George Carl SAMPLE, Defendant and Appellant.

18 Cal.Rptr.3d 611

122 Cal.App.4th 206

The PEOPLE, Plaintiff and Respondent, v. George Carl SAMPLE, Defendant and Appellant.

No. C044445.

Court of Appeal, Third District.

September 13, 2004.

Certified for Partial Publication.^*

Rehearing Denied September 28, 2004.

Review Granted December 1, 2004.

William I. Parks, Nevada City, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves, Senior Assistant Attorney General, Brian R. Means, David Andrew Eldridge and Brook A. Bennigson, Deputy Attorneys General, for Plaintiff and Respondent.

SCOTLAND, P.J.

Defendant George Carl Sample was convicted by jury of corporal injury on a former spouse, with personal infliction of great bodily injury (count one); assault with a deadly weapon (count two); possession of a firearm by a convicted felon (count three); and battery upon a cohabitant (count five). The trial court found that he violated his probation on an earlier conviction for spousal abuse. Defendant was sentenced to an aggregate term of 11 years, eight months in state prison, including the upper term on count one and consecutive terms on count three and on the prior conviction.

On appeal, defendant raises a variety of contentions. Among them is his claim that imposition of the upper term and consecutive terms violated the Sixth Amendment of the United States Constitution as interpreted in Apprendi v. New Jersey (2000) 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (hereafter Apprendi) and Blakely v. Washington (2004) 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (hereafter Blakely). Defendant concedes he did not raise this claim of error in the trial court.

As we will explain in the published part of this opinion, United States v. Cotton (2002) 535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 held that a defendant's failure to object to Apprendi error in the trial court forfeits the right to raise it on appeal if the error did not seriously affect the fairness, integrity, and public reputation of the judicial proceedings, i.e., if a factor relied upon by the trial court in violation of Apprendi was uncontroverted at trial and was supported by overwhelming evidence. Such is the case here. Defendant did not raise an Apprendi objection in the trial court, and factors used in imposing the upper term and consecutive sentencing were uncontested at trial and supported by overwhelming evidence. Hence, defendant is barred from raising the claim of Apprendi/Blakely error.

In any event, the rule of Apprendi and Blakely does not apply to California's consecutive sentencing scheme, and imposition of the upper term here was harmless beyond a reasonable doubt.

In the unpublished parts of the opinion, we reject defendant's other claims of error. Accordingly, we shall affirm the judgment, but direct the trial court to correct clerical mistakes in the abstract of judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The charges against defendant

Count one, committed on September 17, 2001, alleged infliction of corporal injury upon defendant's former spouse, Tamara Sample, resulting in a traumatic condition and with personal infliction of great bodily injury under circumstances involving domestic violence. (Pen.Code, §§ 273.5, subd. (a), 12022.7, subd. (e); further section references are to the Penal Code unless otherwise specified.) As to this count, it was further alleged that defendant was convicted of spousal abuse in June 2000. (§ 273.5, subd. (e)(2).)

Count two, committed on September 17, 2001, alleged assault with a deadly weapon (a noose) upon Tamara Sample by means of force likely to produce great bodily injury. (§ 245, subd. (a)(1).)

Count three, committed on August 22, 2001, alleged possession of a firearm by a convicted felon. (§ 12021, subd. (a)(1).)

Count four, committed on August 22, 2001, alleged resisting officers in the performance of their duties. (§ 69.)

Count five, committed on August 22, 2001, alleged battery on a cohabitant, Tammice Woods, a misdemeanor. (§ 243, subd. (e)(1).)

The convictions

In January 2003, a jury found defendant guilty of counts three and five, but could not reach verdicts on the other counts, as to which a mistrial was declared. In May 2003, defendant was sentenced on counts three and five, and on the prior spousal abuse conviction for which probation was revoked. Thereafter, counts one and two were retried, and a second jury found him guilty of both crimes. Count four was severed and is not at issue here. On June 25, 2003, defendant was sentenced on counts one and two, and on the enhancement to count one, and was resentenced on counts three and five, and on the prior felony conviction. Defendant filed a notice of appeal the next day.

The prosecution's evidence

1. The crimes on August 22, 2001 (counts three and five)

The sheriff's department received a 9-1-1 call reporting that a man was assaulting a woman and pointing a gun at her in an apartment complex.¹ Deputies went to an apartment there and found Tammice Woods upset and crying. Defendant was in the bathroom. After deputies subdued him, they found a loaded gun in a hole in the box spring of the bed in the master bedroom. Defendant's identification and ammunition (of a caliber suitable for the gun) were found in a duffel bag in a hall closet.

Woods testified defendant "sort of" lived with her, but also was still staying with his wife. Defendant did not live with Woods full-time; he was "just in and out." He had his own key to the apartment, kept personal belongings there, and sometimes spent the night. Before Woods moved to the apartment, she and defendant lived together "[k]ind of off and on" in 2001.

According to Woods, defendant called on August 22, 2001, and wanted her to pick him up at work so he could leave work early. When she arrived there, he was angry because she was late and she brought a friend whom he disliked. Defendant grabbed Woods by the arm and slapped her. After driving home in silence, defendant and Woods went to the community laundry room so they could argue without her friend hearing. Defendant grabbed Woods by the hair, swung her to the ground, and kicked her in the back. Woods testified that defendant did not threaten her with a gun; rather, he pointed his cell phone at her. Shortly after defendant and Woods went back inside the apartment, law enforcement officers arrived.

Woods further testified that, one week earlier, she allowed defendant's brother, Kelcey Sample, who was visiting from Indiana, to keep his gun at her apartment.² Kelcey told Woods to store the gun for him. She put it in its case and placed it on the floor under her bed. Although she told Kelcey where she put the gun, she did not tell defendant about it. She denied putting the gun in the box spring, explaining she did not even know about the hole in it. Woods, defendant, and Kelcey all had things stored in the hall closet. Defendant customarily kept his wallet on the kitchen counter or on the bedroom dresser if he did not have it on his person.

2. The crimes on September 17, 2001 (counts one and two)

Tamara Sample and defendant were married in 1996. They separated and reconciled numerous times. In August 2001, Tamara decided to break all ties.

Tamara testified that when she left her mother's apartment and went to her car on the morning of September 17, 2001, defendant was hiding in the backseat. He grabbed Tamara by her hair, pulled her into the car, and asked her to come with him. They struggled, and defendant punched her all over her body. She escaped the car, but defendant caught up with her, "slammed" her against a fence, and pushed her into nearby cars. At one point while Tamara was on the ground, defendant sat on top of her and tried two or three times to put a "zip tie" around her neck. He got the zip-tie "noose" down to her chin before she managed to pull it off. He also hit her in the face with a closed fist, causing a cut under her eye that required stitches to close. The beating stopped when a woman approached and asked if Tamara was alright.

3. Uncharged conduct

Evidence of prior uncharged conduct was introduced pursuant to Evidence Code section 1109, as follows:

In September 1996, Tamara was pregnant and had left defendant because he was having an affair with another woman. Defendant came to the home of Tamara's relatives, banged on the door trying to get in, and threatened to kill Tamara and her family. Tamara told police that on the same day, defendant grabbed her by the wrists and kicked her in the head.

In February 2000, Woods left a male friend's house and found defendant sitting in his car, angry. Defendant grabbed her arm, hit her, and pulled out a gun. They drove to Woods's residence, and while still in the car, defendant hit her several times and told her to remove her pants, which she did out of fear. After they went inside the house, defendant hit Woods with a belt, punched her with a closed fist, and kicked her. He let her go when she said she had to pick up her children at her mother's house. While at her mother's house, Woods saw defendant and his wife, Tamara. Defendant got into the car that he had purchased for Woods and shot a gun into the air. Photographs of her bruises from this incident were shown to the jury.

In August 2001, Tamara and defendant split up. He took her car and said he would not bring it back. After Tamara called the police, defendant returned the car and rammed it into the garage. He went into the house, struggled with Tamara, who was trying to open the door for police, "busted" her lip, and caused her to suffer a "knot" on her head.

Defense

1. The events on August 22, 2001

Defendant's brother, Kelcey, testified that about two weeks before defendant's arrest in August 2001, Kelcey came to Sacramento, planning to relocate from Indiana. He left most of his belongings at Woods's apartment, where he sometimes...