P. v. Davis

Filed 2/26/07 P. v. Davies CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
v.
CORNELIUS JERALD DAVIS,
Defendant and Appellant.
B187094
(Los Angeles County
Super. Ct. No. MA029594)
APPEAL from a judgment of the Superior Court of Los Angeles County,
Lisa Mangay Chung, Judge. Affirmed.
Judith Vitek, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Pamela C. Hamanaka, Assistant Attorney General, Lance E. Winters and
Taylor Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
INTRODUCTION
Appellant contends that the prosecutor engaged in misconduct in closing
argument by attacking appellant’s version of the events and pointing out the

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absence of corroborating witnesses. Appellant also contends that the trial court
erred in sentencing him to the upper term without affording him a jury trial as to
the aggravating factors justifying the greater punishment. We reject both
contentions and affirm the judgment.
PROCEDURAL BACKGROUND
Appellant Cornelius Jerald Davis was convicted of assault with a deadly
weapon in violation of Penal Code section 245, subdivision (a)(1).1 The jury found
true the special allegation that in the course of committing the crime, appellant
inflicted great bodily injury on the victim, within the meaning of section 12022.7.
Appellant was acquitted of making criminal threats against the victim.
Appellant admitted the special allegation that he had suffered five prior
felony convictions resulting in prison terms, as defined in section 667.5,
subdivision (b). He admitted the two prior robbery convictions alleged in the
amended information to qualify as felony “strikes” pursuant to sections 667 and
1170.12. The trial court subsequently struck one of the robbery convictions,
eliminating it as a third strike under section 1170.12, subdivisions (a) through (d),
and section 667, subdivisions (b) through (i), but not for the purpose of imposing a
five-year enhancement under section 667, subdivision (a).
On October 6, 2005, appellant was sentenced to a total prison term of 26
years, but the sentence was corrected June 5, 2006, after the trial court was notified
that one of the convictions did not result in a prison term within the meaning of
section 667.5, subdivision (b). The court amended the abstract of judgment to
reflect that appellant was sentenced to 25 years in prison, consisting of the upper
term of four years as to the assault with a deadly weapon, doubled pursuant to
1 All further statutory references are to the Penal Code, unless otherwise
noted.

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section 1170.12, subdivision (c), and the following enhancements: three years for
having inflicted great bodily injury; one year for each of the four felonies as
defined by section 667.5, subdivision (b); and two five-year enhancements, one for
each of the two robbery convictions. Appellant timely filed his notice of appeal.
FACTS
The victim, Charles Crawford, testified that he had been employed for a
short time by appellant as a welder in appellant’s restaurant, argued about
Crawford’s wages, and appellant fired him. According to Crawford, on August 13,
2004, the two men argued and appellant fired Crawford. Crawford testified that he
left the restaurant, but came back a few minutes later to ask appellant for his wages
for the day, and when he appeared at the front door, the argument resumed.
According to Crawford, as he stood on the sidewalk near the front door, appellant
came out of the restaurant, went to his truck and retrieved a knife. When Crawford
saw the knife, he tossed aside his toolbox and ran away through a nearby parking
lot. The toolbox landed on appellant’s truck, breaking the windshield. Appellant
chased him and grabbed him, causing him to fall down, and as Crawford fell,
appellant stabbed him in the leg. Once Crawford was on the ground, appellant
stabbed him on the head, saying, “I will kill you.”
Crawford testified that he had not been armed with a weapon or tool, and
that he had made no threatening or defensive movements other than waving his
hands above his head defensively. After the attack, Crawford crossed the street to
the back of a retail complex and notified a business owner, who called the sheriff.
After speaking with deputies and identifying appellant and the knife used in the
attack, Crawford was taken to the hospital, where he was treated with staples to
close gashes in his head and leg.

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James Beal testified that he witnessed the incident while seated under a tree
outside his dry cleaning business. He first saw Crawford as he walked from the
restaurant past the nearby liquor store, then back to the restaurant, with a toolbox
in his hand. Beal’s attention was momentarily diverted, but brought back to the
area of the restaurant when he saw appellant chasing Crawford through the parking
lot. The two men ran about the distance of four or five parking stalls, when
Crawford fell and appeared to “give up.” Beal saw appellant leaning over him, and
saw that Crawford hands were not raised as though fighting, but could not see
anything in either man’s hands, as his view was partially blocked by parked cars.
He heard Crawford yell, “Help, help, help. He’s cutting me.” Beal testified that
Crawford remained on the ground until appellant returned to his restaurant.
Crawford then crossed the street the opposite way and lay down. Beal called the
police.
Los Angeles Deputy Sheriff Guillermo Martinez was patrolling in the area
when he was directed by radio to the scene. He spoke to Crawford, whom he
found across the street from appellant’s business, lying on the ground, bleeding
from the head and leg. Crawford pointed out appellant, who was across the street,
as the man who had just stabbed him. Martinez observed approximately four slice-
like bleeding cuts on Crawford’s head and one slice-like injury on his thigh.
Martinez recovered a four-inch folding pocketknife from inside appellant’s
restaurant and showed it to Crawford, who identified it as the weapon used in the
attack.
After Crawford was taken to the hospital, Martinez spoke to appellant, who
admitted that the two had argued and that he had used a knife on Crawford.
Appellant told Martinez that when Crawford broke the windshield of his vehicle
with the toolbox, he retrieved his knife from the car and pursued Crawford.
Appellant did not report that Crawford had a weapon, and admitted that he

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punched Crawford after the latter fell to the ground, but claimed that they both
threw punches at each other. Appellant denied having extended the knife blade,
but claimed that he used it as a “leverage tool.” Martinez had seen hundreds of
stab wounds and blunt force trauma injuries in his career and was of the opinion
that Crawford’s injuries were more consistent with cuts from a knife blade than
with blunt force.
Approximately an hour after Martinez arrived, appellant was taken to the
hospital with chest pains. Deputy Sheriff Brad Feehan, the detective assigned to
investigate the incident, spoke to appellant in the emergency room. Appellant told
Feehan that he had been arguing with Crawford about the quality of his welding
and the amount of wages to be paid, when Crawford pushed him, walked out of the
restaurant, took his toolbox, and threw it at the windshield of appellant’s truck.
Appellant did not claim that Crawford had been armed with any type of weapon or
tool, or that he had threatened him. Appellant told Feehan that Crawford “took off
running” after throwing the toolbox, and that it was then that appellant took his
pocketknife out of his pocket and chased him. Appellant told Feehan that when
Crawford slipped and fell, appellant stood over him and attacked him, because he
was upset about the broken windshield. Appellant claimed that he punched
Crawford several times in the area of the face, using the knife to “‘firm[]’ up his
fist,” and that it was the bottom portion of the knife that caused Crawford’s
wounds.
Feehan showed appellant two knives, one of which had been recovered by
Deputy Martinez from inside a drawer near the sink in the restaurant. The other
was a smaller knife, which appellant identified as the knife in his fist, claiming that
he kept the larger knife in his truck. Feehan observed Crawford’s injuries before
he was taken to the hospital, and he appeared to have three stab wounds on the top
of his head and one on his left leg. Feehan had seen numerous stab wounds and

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blunt force trauma in his 18 years as a peace officer, and he testified that the
wounds were consistent with stab wounds, not blunt force trauma. In Feehan’s
opinion, the size of the wounds was inconsistent with the smaller knife.
Later in their conversation, appellant told Feehan that it was not the smaller
knife that he had used, and that he had given the actual knife to another man who
was at the restaurant during the incident. Feehan asked for information to help
locate that person, but the only information appellant provided was that the person
was a Black male adult. When Feehan told appellant that his story did not make
sense, appellant became upset, saying there was no proof he caused any of the
victim’s injuries, that perhaps the victim caused his own injuries before the
deputies arrived. Subsequently, appellant told Feehan that when Crawford
returned to ask for his money, appellant had armed himself with his pocketknife
because he thought Crawford was going to rob him.
Appellant testified in his own defense. He stated that he was with Crawford
that day, working on upgrades to his restaurant as ordered by the health
department, when Crawford became upset and they argued. Appellant claimed that
Crawford put up his fists, shoved him, “came at” him with his toolbox, and then
threw the toolbox at him as he was running toward the restaurant’s exit. Appellant
claimed that Crawford then pursued him with a screwdriver in his hand. Appellant
admitted drawing his knife, but claimed that he took it from his pocket when he
saw the screwdriver and that he did not have time to open it, because Crawford
took him by the collar and kicked and punched him. Appellant claimed that
Crawford continued to throw punches after he fell. Appellant admitted that he
stood over Crawford and delivered three or four blows, but not with an open knife.
Appellant denied hearing Crawford say, “Help, help, he’s cutting me,” or anything
else.

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On cross-examination, appellant admitted that Crawford ran when he saw
appellant’s knife, and that he chased Crawford. Then, appellant denied that he had
testified that Crawford ran, claiming that Crawford walked away, and that he
pursued Crawford because Crawford was bigger and appellant feared for his life.
Appellant claimed that Crawford did not turn and walk away, but was “back-
peddling.” Appellant described his exit from the restaurant in a similar fashion --
he was “[b]ack-peddling from dodging the tool box.” He claimed that Crawford
threw the toolbox at him while standing inside the restaurant, from a distance of
approximately 10 to 12 feet from appellant and two feet from the door. Appellant
estimated that the toolbox flew approximately 14 feet, passing through the
doorway, until it landed on appellant’s truck, parked outside.
Appellant admitted that the knife recovered by the deputies was the knife he
used, and that he told Feehan he had given the knife to an unidentified African-
American man. He claimed not to have provided the man’s name because the man
worked at the restaurant, and was “inside the building . . . using the knife to strip
the electric wire . . . .” Appellant also claimed that Feehan never asked the name
of the man and was not being truthful when he testified that he had asked appellant
how he could locate the man.
Appellant testified that he called 911 when the fight stopped, and was told
that the police were already on their way. He claimed that he told Martinez that
Crawford threw the toolbox and had a screwdriver, and that Martinez was not
being truthful when he testified that appellant never said the victim had attacked or
threatened him. Appellant admitted not telling Martinez that he feared Crawford.
Appellant admitted that he did not give the same information to Feehan, and that
he did not tell Feehan that Crawford put up his fists or came after him with a
screwdriver, or that appellant backed up through the doorway and out of the
building as Crawford threw the toolbox. He claimed, however, that he told both

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deputies that Crawford pushed him and spun him around. Appellant explained that
he did not describe the events for Feehan, as he had for Martinez, because
Martinez questioned him before his heart attack occurred, while Feehan questioned
him at the emergency room while he was having the attack, which caused him to
be “incoherent.” He claimed that even though he told Feehan that he was having a
heart attack, Feehan ordered the attending nurse to step aside until he was finished.
DISCUSSION
1. Misconduct
Appellant contends that the prosecutor engaged in misconduct by suggesting
that appellant should have provided corroborating or exculpatory evidence. He
does not quote or paraphrase the disputed remarks, but refers to two pages in the
record. We quote the portion of those pages that relate to appellant’s argument:2
“If you believe the defense story about Mr. Crawford backing up and
he falls on the ground and he’s no threat at that point and if you believe the
defense story . . . what does the defendant do? He gets on top of the
defendant [sic] and by his own admission he starts punching him with that
knife in his hand. . . . He basically is trying to figure out [how] to try to get
the story of these independent and the truthful statements he gave to [the]
detective or the deputy [--] this story [he] had for over a year to review [--]
into some plausible means of self-defense. But the fact is it’s so
unbelievable because it never happened. The evidence does not bear that
out, ladies and gentlemen. The defendant himself when Detective Feehan
was talking to him changed the story. [‘]I threw it out[,] I chased him
down[,] I got my knife[,] I was mad because the victim broke my
windshield[.’] [A]nd then what does he say[?] [‘W]ell that knife you
recovered [is] not the knife you [sic] used and I gave this knife, the knife to
some other unidentified person who was there at the scene and who got the
knife[’ --] and apparently does not come into court to corroborate the
2 We add some punctuation and omit or add some words to make the remarks
more readable.

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testimony there was a fight . . . [.] And what did the defendant say he told
Detective Feehan when the victim came back the second time[?] [‘]I
thought he was going to rob me.[’] Where does that come from? He’s
trying to milk these stories as to what really happened [--] he lost his temper
that day and that he armed himself with a knife and he went after the victim
and that he cut the victim and he stabbed the victim. . . .”
According to appellant, the prosecutor’s remarks suggested, without evidentiary
foundation, that a third party might have corroborated appellant’s story. By such
suggestion, appellant argues, the prosecutor acted “as an unsworn witness” and
“argu[ed] facts not in evidence.”
Anticipating respondent’s argument, appellant acknowledges that he did not
object at trial to the prosecutor’s comments. “As a general rule a defendant may
not complain on appeal of prosecutorial misconduct unless in a timely fashion --
and on the same ground -- the defendant made an assignment of misconduct and
requested that the jury be admonished to disregard the impropriety. [Citation.]”
(People v. Samayoa (1997) 15 Cal.4th 795, 841; see § 1259.) Appellant contends
that we should nevertheless consider the issue, because it implicates important
federal constitutional rights to due process, confrontation and cross-examination.
In the alternative, appellant contends that we should consider the issue as one of
ineffective assistance of counsel, because the record reveals no tactical reason for
not objecting to the remarks.
A failure to object in the trial court will not preclude the assertion of the
denial of certain fundamental, constitutional rights, such as a plea of once in
jeopardy or the right to a jury trial. (People v. Vera (1997) 15 Cal.4th 269, 276-
277.) A claim of ineffective assistance of counsel may be cognizable on appeal
where defense counsel’s failure to object affected the defendant’s substantial
rights, but only if the record affirmatively discloses no rational tactical purpose for
counsel’s omission. (People v. Frye (1998) 18 Cal.4th 894, 979-980.) The

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prosecutor’s remarks in this case, however, resulted in no deprivation of
fundamental, constitutional rights and the record reveals no ineffective assistance
of counsel, because the remarks were not improper.
As respondent points out, a prosecutor may comment “on the state of the
evidence or on the failure of the defense to introduce material evidence or to call
logical witnesses.” (People v. Szeto (1981) 29 Cal.3d 20, 34.) “The prosecutor is
permitted to urge, in colorful terms, that defense witnesses are not entitled to
credence, to comment on failure to produce logical evidence, [and] to argue on the
basis of inference from the evidence that a defense is fabricated. . . . [Citations.]”
(People v. Pinholster (1992) 1 Cal.4th 865, 948.) Further, it is not misconduct to
point out the defendant’s failure to call a corroborating witness after testifying, as
appellant did here, that such a witness exists. (People v. Chatman (2006)
38 Cal.4th 344, 403.)
The thrust of the prosecutor’s argument was that appellant had given
inconsistent and contradictory versions of the events in question, including what
knife he used, how he obtained it and what he did with it after the altercation.
According to one version, he claimed to have given the knife to a person who
worked on the premises. Contrary to appellant’s assertion on appeal, he testified at
trial that the altercation took place initially inside the building, and that the third
party to whom he gave the knife was working there. It requires no leap of logic to
suggest that someone in the building -- to whom appellant claimed to have handed
the knife after the altercation -- could have corroborated some portion of
appellant’s story. While appellant was under no obligation to call such a witness,
and the jury was so instructed,3 it was not error for the prosecutor to comment on
3 As appellant concedes, the jury was instructed in accordance with CALJIC
No. 2.11, that neither side was required to call as witnesses all persons who may
have been present at any of the times disclosed by the evidence.

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the absence of such corroboration, especially while arguing the inherent
incredibility of appellant’s multiple and conflicting stories.
Relying on People v. Vargas (1973) 9 Cal.3d 470 (Vargas), appellant
contends he had “the right to rely on the state of the evidence at the close of the
people’s case,” and that the prosecutor’s remarks improperly shifted the burden of
proof onto him. Appellant’s reliance upon Vargas is misplaced. There, the
California Supreme Court discussed “Griffin error,” which “forbids any adverse
comment upon the exercise of [a defendant’s] right to remain silent at trial.”
(Vargas, at pp. 472, 475, citing Griffin v. California (1965) 380 U.S. 609, 613
(Griffin).) Under Griffin, the prosecution may not comment upon “a defendant’s
failure to take the stand in his own defense. . . .” (Griffin, supra, at p. 613.)
However, the “rule ‘does not extend to comments on the state of the evidence or on
the failure of the defense to introduce material evidence or to call logical
witnesses. [Citations.]’ [Citations.]” (Vargas, at p. 475; People v. Hughes (2002)
27 Cal.4th 287, 371-372.)
Appellant did not exercise his right to remain silent, but took the stand and
testified. A defendant in a criminal trial, like any other witness, places his
credibility in issue when he takes the stand to testify. (People v. Gutierrez (2002)
28 Cal.4th 1083, 1139.) A “prosecutor is entitled to comment on the credibility of
witnesses based on the evidence adduced at trial. [Citation.]” (People v. Thomas
(1992) 2 Cal.4th 489, 529.) Thus, where a defendant testifies, giving different
accounts of the events, as appellant did here, it is not misconduct to suggest “that
defendant was lying . . . . The prosecution may properly refer to a defendant as a
‘liar’ if it is a ‘reasonable inference based on the evidence. [Citation.]’
[Citation.]” (People v. Wilson (2005) 36 Cal.4th 309, 338.)

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We conclude that the prosecutor’s comments were not misconduct and that
the absence of an objection was not counsel error, as any objection would have
been groundless.
2. Blakely/Apprendi
Appellant was sentenced to the upper term of four years on the assault
conviction. (See § 245, subd. (a)(1).) In deciding whether to impose the upper
term, the trial court considered, as circumstances in aggravation, five prior
convictions shown in the probation report. (See § 1170, subd. (b); Cal. Rules of
Court, rule 4.421(b)(2).) No aggravating circumstances were considered by the
court other than the five prior convictions, and those five prior convictions were
not the same prior convictions that had been charged in the information under
sections 667, 667.5 and 1170.12, which were used to impose sentence
enhancements after appellant waived his right to a jury trial and admitted them.
Appellant now contends that he should have been afforded a jury trial as to
the aggravating factors used by the trial court to impose the upper term. He
invokes Blakely v. Washington (2004) 542 U.S. 296 (Blakely), and Apprendi v.
New Jersey (2000) 530 U.S. 466 (Apprendi), which held that facts that increase the
maximum penalty for a crime must be pleaded, submitted to a jury and proved
beyond a reasonable doubt, unless the defendant waives a jury and admits the facts.
(See also United States v. Booker (2005) 543 U.S. 220 (Booker).)
In Cunningham v. California (2007) 549 U.S. __ [127 S.Ct. 856]
(Cunningham), the United States Supreme Court recently held that the middle term
in California’s determinate sentencing law was the relevant statutory maximum for
the purpose of applying Blakely and Apprendi. (Cunningham, supra, 127 S.Ct. at

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p. 868.)4 However, Cunningham reaffirmed the exception enunciated in
Almendarez-Torres v. United States (1998) 523 U.S. 224, and affirmed in
Apprendi: “[T]he Federal Constitution’s jury-trial guarantee proscribes a
sentencing scheme that allows a judge to impose a sentence above the statutory
maximum based on a fact, other than a prior conviction, not found by a jury or
admitted by the defendant. [Citations.]”5 (Cunningham, at p. 860, italics added;
Apprendi, supra, 530 U.S. at pp. 488 & 490; see also Booker, supra, 543 U.S. at
p. 244.)
Relying on Shepard v. United States (2005) 544 U.S. 13, appellant contends
that the exception for prior convictions has been significantly narrowed, and
applies only to the fact of the conviction. Thus, he argues, it does not extend to
considering an unsatisfactory performance on probation. First, the trial court did
not consider facts showing an unsatisfactory performance on probation, as
appellant’s argument suggests, but simply noted a number of prior convictions for
which he received probation. Second, the Almendarez-Torres/Apprendi exception
is sufficiently broad to encompass all matters ascertainable from the face of the
prior judgment of conviction. (People v. McGee (2006) 38 Cal.4th 682, 707-709
(McGee); People v. Thomas (2001) 91 Cal.App.4th 212, 222-223.) As the record
4 Because Cunningham was decided after briefing was complete, we
permitted the parties to file supplemental letter briefs. As prior convictions were
the only aggravating factors used by the trial court to impose the upper term in this
case, we invited the parties’ particular attention to the use of prior convictions in
California’s sentencing law.
5 In Cunningham, the defendant had no prior criminal history; the sentencing
judge imposed the upper term in reliance on such factors as the particular
vulnerability of the victim and the violence of the crime. (Cunningham, supra,
127 S.Ct. at pp. 860-861.)

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of sentencing would show whether probation was granted, we conclude that the
exception extends to that fact as well.
The United States Constitution does not mandate a jury trial on prior
convictions and any right to a jury trial would be purely statutory. (Apprendi,
supra, 530 U.S. at pp. 487-490; People v. Epps (2001) 25 Cal.4th 19, 23; see
§ 1025.) By statute in California, a defendant is afforded a jury trial only as to the
fact of those prior convictions alleged in the accusatory pleading as statutory
sentence enhancements. (§ 1025; Epps, at pp. 29-30.) Prior convictions
considered as aggravating factors for the purpose of imposing the upper term may
be determined by the court upon facts shown in the probation report, as the trial
court did here, and need be established only by a preponderance of the evidence.
(§ 1170, subd. (b); Cal. Rules of Court, rule 4.420(b).) Thus, as appellant was not
entitled to a jury trial, Blakely and Apprendi have no application here. (See Epps,
at p. 23; § 1025; see also Cunningham, supra, 127 S.Ct. at p. 860; Apprendi, supra,
at pp. 488 & 490.)

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DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, J.
We concur:
WILLHITE, Acting P. J.
SUZUKAWA, J.

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