Filed 3/27/14 P. v. McCowan CA1/3
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                       FIRST APPELLATE DISTRICT
                                                DIVISION THREE


THE PEOPLE,
         Plaintiff and Respondent,
                                                                         A135463
v.
RAYMOND McCOWAN,                                                         (City & County of San Francisco
                                                                         Super. Ct. No. 216403)
         Defendant and Appellant.


         Defendant Raymond McCowan appeals from a judgment convicting him of
kidnapping his wife and sentencing him to 13 years in prison. On appeal, he contends the
court erred by admitting prejudicial propensity evidence, that the prosecutor failed to
disclose material exculpatory evidence, and that his attorney rendered ineffective
assistance. He also challenges the sufficiency of the evidence in support of his
misdemeanor conviction for obstructing or delaying a police officer and in support of a
prior serious felony conviction enhancement. Finally, defendant asserts that the court
abused its discretion in sentencing him to the aggravated term for his kidnapping
conviction. We shall affirm.
                                       Factual and Procedural History
         Defendant was charged by amended information with kidnapping (Pen. Code,1
§ 207, subd. (a); count one); domestic violence (§ 273.5, subd. (a); count two); assault
with force likely to cause great bodily injury (§ 245, subd. (a)(1); count three); violation
of a stay-away order (§ 166, subd. (c)(1); count four); and resisting, obstructing, or

1
    All statutory references are to the Penal Code unless otherwise noted.


                                                             1
delaying a peace officer (§ 148, subd. (a)(1); count five). The amended information
further alleged that between 1982 and 1989, appellant had suffered five prior convictions
within the meaning of section 667, subdivision (a)(1).
         The following evidence was presented at trial:
         At approximately 11:00 p.m., on March 11, 2011, the police received an
emergency call from Sheila Williams. When Officer Brian Knuecker and his partner
responded to Williams’s home, Williams told them defendant had kidnapped his wife,
Ladonna Christian. Williams did not testify at trial but according to Knuecker’s
testimony, she told the police that her sister, Christian, was staying with Williams
because defendant had been beating her. That night, Williams and her husband, Milton
Wright, had opened the front door to leave the house when defendant appeared and
pushed them back inside. Defendant had a taser in his right hand and a firearm in his left
hand. Defendant put the taser against Williams’s neck. Defendant grabbed Christian,
dragged her by the hair, and forced her into his vehicle. Along the path of the abduction,
officers observed two hair extensions and a broken piece of wood. According to
Knuecker’s recounting of what Williams said , defendant told Christian, “I’m going to
kill you,” and “Bitch, you going with me.” Williams told the officers that she believed
defendant might kill her sister. Williams thought defendant was taking Christian to their
home on Scott Street.
         The first San Francisco police officers arrived at defendant’s Scott Street home
around 11:30 p.m. When they arrived, they saw the apartment lights shining through the
window shades. One of the officers banged on the metal gate with his flashlight and
identified himself as a police officer. Thirty seconds to a minute later, the apartment
lights went off.
         Over the following two hours, officers made numerous attempts to contact
defendant inside the home. They knocked on the doors and windows several times, but
received no response. Other officers attempted unsuccessfully to contact defendant by
phone.



                                              2
       Around 1:00 a.m., Officer Patrick Robinson pressed his ear to the apartment wall
and heard the faint sound of a woman crying. Robinson also heard male and female
voices inside the apartment, but could not hear what they were saying.
       Shortly before 2:00 a.m., the police department’s tactical unit breached the
apartment’s back door. In the rear bedroom, they found defendant and Christian. In an
adjacent bedroom, officers found the couple’s son, 15- year-old R.
       After the tactical unit secured the apartment, Officer Knueker entered the
apartment and spoke with Christian. She had fresh bruises on her face and was bleeding
from her mouth, nose, and lip. She also appeared to have been punched in the eye. She
was crying, hysterical and very fearful. Police investigators attempted to interview
Christian at the scene, but she was angry and uncooperative.
       At trial, Christian told a very different story. She testified that for a night and a day
before the police came into her home on Scott Street, she had been at her sister’s home.
On the night of the incident, she and her sister had argued over money her sister owed
her. The dispute became physical and while she and her sister were fighting, a friend of
the sister grabbed Christian, hit her and dragged her out the door. During the struggle, her
hair was pulled out and the fence was broken. She called defendant and asked him to
come for her. After defendant picked her up, they picked up R. and returned home and
fell asleep. The next thing she remembered was the police entering her bedroom. She told
the investigator she was jumped at her sister’s house but the investigator refused to
believe her. She agreed to go to the hospital only because the officer threatened to call
child protective services to take her son if she refused.
       R. also testified at trial, confirming that his parents picked him up at 9:30 p.m. His
mother had blood on her face when she was in the car, but she would not tell him what
had happened to her. He claimed that he went to sleep as soon as they got home and did
not speak to his parents again until after the police entered the apartment and woke him.
He did not hear a telephone ringing that night or hear anyone tapping on the gate, saying
“Police.” On cross-examination, R. denied telling a defense investigator that he heard the
police banging on the door around 11:00 p.m. and yelling for him to open up. He also did


                                               3
not recall telling the investigator that his father wanted to open the door but was afraid
that the police would shoot him if he did.
       After the incident, the police learned that a San Mateo County protective order
prohibited defendant from contacting Christian. At trial, however, Christian denied
asking for a stay-away order or trying to keep defendant away from her.
       Testimony was also given regarding an incident that occurred just over a year
prior, in February 2010. Christian and R. had spent a weekend in February at a La Quinta
Hotel in South San Francisco while defendant was out of town. During their stay,
Christian incurred over $250 in charges to the room telephone. When defendant arrived at
the hotel to pick up his family, he attempted to negotiate with the manager to have the
phone charges reduced. When the manager refused to reduce the charges, defendant
became very agitated. He stormed out of the hotel and got into the truck in which
Christian and R. were waiting. The manger watched through the window as defendant
vigorously beat Christian with something that looked like a hammer or a crowbar. He
saw defendant hit her at least six times before driving away. The manager asked an
employee to call the police while he copied defendant’s license plate. The police stopped
the truck about one-quarter mile from the hotel. The officer who stopped defendant’s car
testified that Christian had scratches on at least one arm and seemed frightened. When
she exited the car, he noticed that she was walking with a limp. She also complained of
pain to her right forearm and right leg. Christian agreed to go to the police station with
him, where he took photographs of her injuries. A black hammer was located in a search
of defendant’s truck. Dr. Diana Emerson testified at trial that the injuries depicted in the
photos taken at the police station were consistent with the hammer found in the truck.
       Christian testified that she injured herself at the La Quinta hotel because she had
been drinking and had slipped. In the morning, when defendant picked her up, she was
still feeling injuries from the night before; she was limping and had several bruises. She
denied arguing with defendant about the room charges and denied that defendant hit her
with a hammer. R. confirmed his mother’s story.



                                              4
       The jury found defendant guilty of all counts and the court found true the
allegation that defendant’s 1982 guilty plea to assault with a deadly weapon constituted a
prior serious felony conviction under section 667, subdivision (a)(1). Defendant was
sentenced to a total term of 13 years in prison, calculated as follows: the upper term of
eight years for the kidnapping conviction plus a consecutive five-year term for the prior
conviction. Pursuant to section 654, the court stayed counts two (domestic violence) and
three (assault with force likely to cause great bodily injury) and their related
enhancements. For counts four (violation of a stay-away order) and five (resisting,
obstructing, or delaying a peace officer), the court imposed the maximum misdemeanor
terms of one year, to run concurrently with the felony sentence. Defendant filed a timely
notice of appeal.
                                         Discussion
1.     The trial court did not abuse its discretion in admitting testimony regarding
the incident at the La Quinta Hotel.
       “ ‘Evidence of prior criminal acts is ordinarily inadmissible to show a defendant's
disposition to commit such acts. (Evid. Code, § 1101.) However, the Legislature has
created exceptions to this rule in cases involving sexual offenses (Evid. Code, § 1108)
and domestic violence (Evid. Code, § 1109).’ [Citation.] ‘[T]he California Legislature
has determined the policy considerations favoring the exclusion of evidence of uncharged
domestic violence offenses are outweighed in criminal domestic violence cases by the
policy considerations favoring the admission of such evidence.’ [Citation.] Section 1109,
in effect, ‘permits the admission of defendant’s other acts of domestic violence for the
purpose of showing a propensity to commit such crimes. [Citation.]’ [Citations.] ‘[I]t is
apparent that the Legislature considered the difficulties of proof unique to the prosecution
of these crimes when compared with other crimes where propensity evidence may be
probative but has been historically prohibited.’ ” (People v. Brown (2011) 192
Cal.App.4th 1222, 1232-1233.)
       “The admission of prior acts as propensity evidence encompasses both charged
and uncharged acts. [Citations.] Moreover, evidence of a prior act may be introduced as


                                              5
propensity evidence even if the defendant was acquitted of criminal charges based upon
that act. [Citation.] [¶] Even if the evidence is admissible under section 1109, the trial
court must still determine, pursuant to [Evidence Code] section 352, whether the
probative value of the evidence is substantially outweighed by the probability the
evidence will consume an undue amount of time or create a substantial danger of undue
prejudice, confusion of issues, or misleading the jury. [Citation.] The court enjoys broad
discretion in making this determination, and the court's exercise of discretion will not be
disturbed on appeal except upon a showing that it was exercised in an arbitrary,
capricious or patently absurd manner that resulted in a manifest miscarriage of justice.”
(People v. Brown, supra, 192 Cal.App.4th at p. 1233.)
       Defendant acknowledges that the evidence regarding the prior domestic violence
incident was admissible under Evidence Code section 1109 but argues that the court
abused its discretion in not excluding the evidence under Evidence Code section 352
because the evidence was unduly burdensome on the defense and was highly prejudicial.2
We disagree.


2
  Defendant also suggests that the prosecution failed to provide sufficient pretrial
discovery on this issue. The record reflects, however, that on November 22, at the start of
trial, the court confirmed with the prosecutor that he had complied with the pretrial
disclosure requirements of Evidence Code section 1109, subdivision (b), which requires
that the prosecution “disclose the evidence to the defendant, including statements of
witnesses or a summary of the substance of any testimony that is expected to be offered,
in compliance with the provisions of Section 1054. 7 of the Penal Code.” Section 1054.7
in turn requires that disclosure be made “at least 30 days prior to the trial, unless good
cause is shown why a disclosure should be denied, restricted, or deferred. If the material
and information becomes known to, or comes into the possession of, a party within 30
days of trial, disclosure shall be made immediately.” Defense counsel did not dispute the
prosecutor’s compliance with subdivision (b) at that time. Although he later argued that
this evidence was too prejudicial to be admitted because the La Quinta incident was still
being investigated, he did not assert a failure to properly disclose the evidence. Having
failed to object, defendant has forfeited any claim regarding insufficient disclosure on
appeal. In any event, insofar as nothing in the record suggests that the prosecutor
unreasonably delayed in disclosing the additional information and defendant was given a
full and fair opportunity to rebut the additional testimony, any potential error would be
harmless. (See People v. Brown (2000) 77 Cal.App.4th 1324, 1334 [The purpose of this

                                              6
       The challenged evidence established both that defendant had a propensity for
engaging in violence against his wife and that she and her son had previously attempted
to cover up the violence to protect defendant. As such, the evidence was highly probative
of defendant’s guilt in this case.
       While the evidence of the hotel incident is arguably more persuasive than the
evidence of the charged incident because it was reported by an independent witness, the
conduct involved in the incident is no more egregious that that involved in the charged
offense and was not likely to evoke an unfair emotional bias against defendant. “The
prejudice which exclusion of evidence under Evidence Code section 352 is designed to
avoid is not the prejudice or damage to a defense that naturally flows from relevant,
highly probative evidence. ‘[All] evidence which tends to prove guilt is prejudicial or
damaging to the defendant’s case. The stronger the evidence, the more it is “prejudicial.”
The “prejudice” referred to in Evidence Code section 352 applies to evidence which
uniquely tends to evoke an emotional bias against the defendant as an individual and
which has very little effect on the issues. In applying section 352, “prejudicial” is not
synonymous with “damaging.” ’ ” (People v. Karis (1988) 46 Cal.3d 612, 638.) The
evidence admitted in this case is precisely the type of evidence that Evidence Code
section 1109 is designed to allow.
       Defendant also contends that the admission of this testimony was unduly time
consuming. According to defendant, testimony about the incident consumed about 25
percent of the prosecution case. While the prosecution clearly spent a significant amount
of time on this evidence, the presentation of all evidence in the case consumed less than
six days. Considering the relevance of this evidence and its importance to the case, we
cannot say that the trial court abused its discretion in concluding that the time required
for the presentation of this testimony was not such as to require exclusion of the
evidence.


requirement is that a defendant will not be surprised or unprepared to rebut the proposed
evidence.].)


                                              7
       Finally, while the defense was undoubtedly complicated by the fact that the police
investigation into the hotel incident was ongoing and discovery was continuing
throughout trial, nothing in the record supports defendant’s assertion that the admission
of this evidence was unduly burdensome. Although defendant states summarily that
“Defense counsel had no opportunity to investigate or rebut the La Quinta allegations, or
to interview six witnesses identified in the People’s trial brief,” he offers no further
argument regarding this issue on appeal and did not object or request a continuance on
the basis of surprise or an inability to properly prepare for these witnesses. At most,
defendant argued, only after the hotel manager had already testified, that additional
testimony by the responding officers and Dr. Emerson should be excluded because that
evidence was too prejudicial because “[t]hat case has not even gone to preliminary
hearing” and he was “just now getting reports” and photographs from the incident. But,
as just noted, defendant did not request a continuance or claim an inability to prepare a
defense.
       Accordingly, we find no error in the admission of the challenged propensity
evidence.
2.     The prosecution did not violate defendant’s due process rights by failing to
disclose material, exculpatory evidence.
       Under Brady v. Maryland (1963) 373 U.S. 83, 87, the prosecution violates a
defendant's right to due process when it suppresses evidence that is favorable to the
defendant and the evidence is material either to guilt or to punishment. “Evidence is
‘favorable’ if it either helps the defendant or hurts the prosecution, as by impeaching one
of its witnesses.” (In re Sassounian (1995) 9 Cal.4th 535, 544.) This includes evidence
that reflects upon the credibility of material witnesses. (Giglio v. United States (1972)
405 U.S. 150, 154–155; People v. Ruthford (1975) 14 Cal.3d 399, 408, overruled on
another ground in Sassounian, pp. 545–546, fn. 7.) Evidence is material when there is a
reasonable probability that, had the evidence been disclosed to the defense, the result of
the defendant's criminal proceeding would have been different. A reasonable probability




                                              8
means a probability sufficient to undermine confidence in the outcome. (United States v.
Bagley (1985) 473 U.S. 667, 682.)
       Defendant contends his conviction must be reversed because the prosecution failed
to disclose a search warrant executed at Williams’s home ten days prior to trial,
apparently seeking evidence of Williams’s involvement in narcotics offenses. Initially,
the Attorney General questions whether a search warrant is admissible for impeachment
and notes that in any event, the search warrant was not “suppressed” because defendant
was aware of the search prior to trial. (People v. Morrison (2004) 34 Ca1.4th 698, 715.)
The Attorney General’s primary argument, however, is that the allegedly suppressed
evidence was not material. (People v. Hernandez (2012) 53 Cal.4th 1095, 1108 [Brady
error reversible only when evidence is “material” and “there is a reasonable probability
that, absent the error, the fact finder would have had a reasonable doubt respecting
guilt.”].) Because we agree that the evidence was not material, we need not consider the
Attorney General’s other arguments.
       Although the search warrant may have supported Christian’s testimony that her
sister was involved in illegal activity, such involvement has nothing to do with the
charges against defendant being tried, and reflects only marginally, if at all, on
Williams’s credibility. Given the substantial evidence of prior domestic abuse between
defendant and the victim, including the existence of a restraining order and the testimony
regarding the hotel incident, it is not reasonably likely that introduction of evidence
suggesting Williams’s involvement in illegal activity would have caused the jury to credit
Christian’s claim that she was assaulted by an unidentified friend of Williams rather than
by defendant. Christian’s version of the assault was so lacking in credibility that the
additional evidence would not reasonably have resulted in a different outcome.
3.    Defense counsel did not render ineffective assistance by failing to present
evidence impeaching Williams.
       Defendant contends his attorney rendered ineffective assistance by failing to
impeach Williams using the “numerous examples of her criminality and dishonesty” that
had been provided in discovery. He acknowledges that Williams did not testify but argues


                                              9
that her out-of-court hearsay statements, that were admitted through testimony by the
responding police officers, were subject to impeachment under Evidence Code
section 1202.3 Assuming that such impeachment evidence was, in fact, contained in the
police reports,4 we need not decide whether defense counsel’s performance was deficient
because any deficiency in this regard was not prejudicial. Even assuming that the
impeachment evidence would have caused the jury to view some of Williams’s
description of events with distrust, such doubts were not likely to overcome the fact that
Williams called the police for help and reported that defendant had kidnapped his wife. In
view of this testimony and the additional evidence discussed above—the wife’s
appearance when the police arrived, the prior hotel incident and the protective order
against defendant—the evidence of defendant’s guilt was overwhelming.
4.    Substantial evidence supports defendant’s conviction for obstructing or
delaying a peace officer.
       Defendant contends he had no obligation to open his front door to the officers
when they knocked on his door and called his phone, and thus, his failure to failure to do
so did not, as a matter of law, violate section 148.5 We disagree.
       “ ‘The legal elements of a violation of section 148, subdivision (a) are as follows:
(1) the defendant willfully resisted, delayed, or obstructed a peace officer, (2) when the
officer was engaged in the performance of his or her duties, and (3) the defendant knew
or reasonably should have known that the other person was a peace officer engaged in the

3
 Evidence Code section 1202 provides in relevant part “Any . . . evidence offered to
attack or support the credibility of [a hearsay] declarant is admissible if it would have
been admissible had the declarant been a witness at the hearing.”
4
  As the Attorney General notes, defendant fails to identify the specific felony
convictions or instances of conduct evidencing moral turpitude found in the police reports
that he believed his attorney should have introduced to impeach Williams’s credibility.
5
 Section 148, subdivision (a)(1) provides: “Every person who willfully resists, delays, or
obstructs any public officer, peace officer, . . . in the discharge or attempt to discharge
any duty of his or her office or employment, when no other punishment is prescribed,
shall be punished by a fine not exceeding one thousand dollars ($1,000), or by
imprisonment in a county jail not to exceed one year, or by both that fine and
imprisonment.”


                                             10
performance of his or her duties. [Citations .]’ [Citation.] The offense is a general intent
crime, proscribing only the particular act (resist, delay, obstruct) without reference to an
intent to do a further act or achieve a future consequence.” (In re Muhammed C. (2002)
95 Cal.App.4th 1325, 1329.)
       Contrary to defendant’s argument, the evidence that defendant refused to answer
the door and turned off the lights in an attempt to hide from the police is sufficient to
support the finding that he delayed or obstructed the officers. (People v. Allen (1980) 109
Cal.App.3d 981, 987.) There is no doubt that the officers were engaged in the
performance of their duties when they knocked on defendant’s door and attempted to
gain entry to search for Christian. There is also substantial evidence that defendant had
notice the people attempting to gain entry to his home were police officers. They were
wearing their uniforms and they repeatedly yelled out they were police officers and
directed him to open the door. Rather than open the door, defendant turned off the lights
and hid. Although R. denied at trial that he had heard the officers banging on the door, he
was impeached by his prior statement to the defense investigator that they had heard the
officers and that defendant was afraid to open the door to the police because he thought
they might shoot him.
       In People v. Allen, supra, 109 Cal.App.3d at pages 985-986, the court explained,
“the language of the California statute (Pen. Code, § 148) . . . uses the word ‘delays’ in
addition to ‘resists’ and ‘obstructs.’ Since the officer had the legal right, indeed duty,
[citation] to detain appellant, appellant, if he was aware of the officer’s desire, had the
concomitant duty to permit himself to be detained. [Citation.] Therefore, on the face of
the statute it would appear that the physical activity that appellant engaged in, flight and
concealment, which delayed the officer’s performance of his official duty, violated the
statute.” As set forth above, substantial evidence establishes that the defendant knew the
officers were at his home to speak with him about the altercation involving his wife and
there is no dispute that based on Williams’s statements the police had probable cause to
detain and arrest defendant. Defendant’s conduct in turning out the lights and hiding from
the officers undoubtedly delayed his detention and arrest.


                                              11
       Defendant reliance on People v. Wetzel (1974) 11 Cal.3d 104 is misplaced. In that
case, the court held that defendant’s mere passive, presence in the doorway and refusal to
consent to the search of her home, when responding to the officer’s knock, did not
support a violation of section 148. (Wetzel, pp. 108-109 [“Although she had positioned
herself in the open doorway, it appeared to be the only position she could assume while
conversing with the officers. [Fn. omitted.] Had she complied with the officer's requests
and stood back from the doorway this in itself would have, under the circumstances,
constituted the very consent which she was not required to give.”].) The court noted,
however, that a valid distinction can be drawn where there evidence that the defendant
had not merely remained passive but instead engaged in conduct that created an
additional obstacle to the officer’s entry. (Id. at p. 110.) Such distinguishing facts are
present here. Defendant did not remain passively inside his home. He turned out the
lights and hid from the officers, which in turn delayed their entry into the home. (See
People v. Allen, supra, 109 Cal.App.3d at p. 987, fn. 1 [distinguishing Wetzel as follows:
“The case at bench is distinguishable because appellant actively impeded an officer in the
performance of his duty. The defendant in Wetzel could refuse consent, but could not
impede entry. Appellant could refuse to cooperate, but could not run and hide.”].)
5.     Substantial evidence supports the prior serious felony enhancement.
       Defendant’s sentence was enhanced five years as a result of the court’s finding
that his 1982 conviction for assault constituted a serious felony under section 667,
subdivision (a)(1). As defendant notes, a prior assault conviction alone does not qualify
as a serious felony under section 667, subdivision (a)(1). (People v. Williams (1990) 222
Cal.App.3d 911, 914–915.) As relevant in this case, the judge must also have found that
defendant personally inflicted great bodily injury on a non-accomplice for defendant’s
assault conviction to constitute a prior serious felony conviction. (§§ 667, subd. (a)(4),
1192.7, subd. (c); People v. Williams, supra, 222 Cal.App.3d at pp. 914–915.) Defendant
contends there is insufficient to establish the great bodily injury requirement.
       In this case, the prosecution introduced the abstract of judgment from defendant’s
1982 conviction to prove the serious felony enhancement. The abstract shows a plea of


                                              12
guilty in 1982 to the charge of violating former section 245, subdivision (a) (now
subdivision (a)(1)). The abstract also shows that a section 12022.7 enhancement, which
requires an additional and consecutive three-year term for defendants who personally
inflict great bodily injury on a non-accomplice, was charged and found true but was
stayed. Defendant acknowledged pleading guilty to section 245, subdivision (a) in the
prior case, but denied that he also plead guilty to a great bodily injury allegation.
         Contrary to defendant’s argument, the abstract of judgment is sufficient to support
the court’s finding that defendant had suffered a prior serious felony conviction. (People
v. Ruiz (1999) 69 Cal.App.4th 1085, 1090-1091; People v. Milosavljevic (1997) 56
Cal.App.4th 811, 815; People v. Shirley (1993) 18 Cal.App.4th 40, 47.) The trial court
was entitled to credit the abstract of judgment over defendant’s self-serving testimony
that he did not remember being charged with or pleading guilty to the great bodily injury
enhancement.
6.    The trial court did not abuse its discretion by sentencing defendant to the
upper term on his kidnapping conviction.
         When, as here, the statute under which the defendant is convicted specifies three
possible terms, the decision to impose the upper, middle or lower term rests within the
sound discretion of the court. (§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(a). 6) In
making his selection, “the sentencing judge may consider circumstances in aggravation or
mitigation, and any other factor reasonably related to the sentencing decision.” (Rule
4.420(b); see also People v. Black (2007) 41 Cal.4th 799, 813.) It is up to the sentencing
judge to decide how much weight should be given to the pertinent circumstances. (People
v. Brown (1988) 46 Cal.3d 432, 470.) The judge may minimize or disregard
circumstances in mitigation (People v. Lamb (1988) 206 Cal.App.3d 397, 401) and
impose the upper term based on but a single factor in aggravation (People v. Osband
(1996) 13 Cal.4th 622, 730).
         In sentencing defendant the court relied on the following factors: (1) the victim
was vulnerable (rule 4.421(a)(3)); (2) defendant engaged in violent conduct that indicates
6
    All further rule references are to the California Rules of Court.


                                               13
a serious danger to society (rule 4.421(b)(1)); (3) defendant’s prior convictions are
numerous and/or increasing in seriousness (rule 4.421(b)(2)); (4) defendant served a prior
prison term (rule 4.421(b)(3)); (5) defendant performance on probation and/or parole was
unsatisfactory (rule 4.421(b)(5)); and (6) the crime involved a threat of great bodily harm
and/or a high degree of cruelty or callousness (rule 4.421(a)(1)). The judge also noted
that he “looked long and hard for circumstances in mitigation, and in trying to identify
such [he] read the letters [submitted by defendant]. And what the letters suggest is that
[defendant] is capable of very significant contributions to his community [and] that for
many people in his church and in other organizations he has been a role model and he has
been very helpful. [¶] The problem, however, and I think this is true of domestic violence
generally, is that the side of [defendant] that his wife saw and the side of [defendant] that
his son saw and in the case of the San Mateo conduct which was the subject of significant
and important testimony in this case, the side of [defendant] that the motel manager saw,
is a very different side of [defendant]. [¶] It’s a side of a person who is capable of
remarkable acts of cruelty to a woman who is the mother of his son, and in both
instances, the evidence indicates that that cruelty was inflicted upon her in the presence
of the 16-year-old son which creates a horrendous role model for his son to see[.] [T]he
kind of violence and cruelty perpetrated upon his mother that was the subject of the
testimony in this case will no doubt have life-long and devastating effects on his son,
both with regard to his view of his mother, his father, and I fear with regard to how he
treats women in the future.”
       Defendant asserts that the aggravating factors referenced by the court were
improper.7 He argues that (1) the court erred in using victim vulnerability as an

7
  As the Attorney General notes, defendant did not challenge the trial court’s use of these
factors in selecting the upper term at the time of sentencing. However, to forestall an
ineffective assistance of counsel claim, we address the merits of defendant’s claim
notwithstanding trial counsel's failure to object to the sentence in the trial court. (People
v. Scaffidi (1992) 11 Cal.App.4th 145, 151; People v. Scott (1994) 9 Cal.4th 331, 354–
355 [challenges to discretionary sentencing choices forfeited on appeal if not raised in the
trial court].)


                                              14
aggravating factor because there was no evidence that Christian was more vulnerable
than other victims of domestic violence; (2) the court erred in using unsatisfactory
performance on probation or parole as an aggravating factor because there is no evidence
that defendant’s performance was unsatisfactory; (3) the trial court erred by using high
degree of cruelty or callousness as an aggravating factor because he improperly justified
that choice using evidence of the La Quinta Hotel incident; and (4) the trial court erred by
using “violent conduct that indicates a serious danger to society” as an aggravating factor
because violence was an element of the offense.
       When a trial court gives both proper and improper reasons for a sentence choice,
we will set aside the sentence only if it is reasonably probable that the trial court would
have chosen a lesser sentence had it known that some of its reasons were improper.
(People v. Price (1991) 1 Cal.4th 324, 492.) We do not necessarily agree that the first
three factors challenged by defendant (victim vulnerability, probation performance, and
the cruelty/callousness of the crime) were improperly considered, but in all events it is
clear that the court properly relied on the remaining factor (defendant’s violent conduct)
and the court undoubtedly would have selected the upper term based on this factor alone.8
       Per rule 4.421, “Circumstances in aggravation include factors relating to the crime
and factors relating to the defendant.” Among “[f]actors relating to the crime” is whether
“[t]he crime involved great violence, great bodily harm, threat of great bodily harm, or
other acts disclosing a high degree of cruelty, viciousness, or callousness.” (Id.,
subd. (a)(1).) Among the factors relating to the defendant, is whether “defendant has
engaged in violent conduct that indicates a serious danger to society.” (Id., subd. (b)(1).)
The factor focusing on whether a crime involved great violence or a threat of bodily harm
is not identical to the factor that examines whether a defendant poses a serious danger to

8
 Although defendant claims that all six factors cited by the court were improper,
defendant does not offer any argument challenging the court’s reliance on the number
and/or increasing severity of defendant’s prior convictions or the fact that he had served a
prior prison term. Although these factors alone may have supported the court’s selection
of the upper term, the court did not place any particular emphasis on these factors in
explaining its selection.


                                             15
society. These sentencing factors are separate and distinct: one deals with the nature of
the crime, the other with the nature of the defendant.
       In this case, the court relied heavily on defendant’s overall violent conduct
towards his wife, focusing primarily, as quoted above, on the assault that took place in
the presence of his son at the La Quinta Hotel. Although the court could not rely on the
facts relating to the hotel incident to conclude that the charged offense involved a high
degree of cruelty or callousness under rule 4.421(a)(1), the violence displayed during that
incident was certainly relevant to the court’s finding that defendant had engaged in
violent conduct that posed a serious danger to society under rule 4.421(b)(1).
       Finally, contrary to defendant’s suggestion, the court did not decline to consider
any factors in mitigation identified in defendant’s sentencing memorandum. Rather, after
reading the letters, the court concluded that any benefit he may be to his community was
far outweighed by the serious danger to society posed by defendant’s violent conduct.9
                                        Disposition
       The judgment is affirmed.

                                                  _________________________
                                                  Pollak, Acting P.J.

We concur:


_________________________
Siggins, J.


_________________________
Jenkins, J.




9
 Defendant contends the cumulative effect of the alleged errors denied him a fair trial.
Finding no error or resulting prejudice, we reject the claim of cumulative error. (People v.
Tully (2012) 54 Cal.4th 952, 1061.)


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