P. v. Tucek

Filed 1/7/08 P. v. Tucek CA5
Opinion following remand by Supreme Court
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
MICHAEL WAYNE TUCEK,
Defendant and Appellant.
F049306
(Super. Ct. No. SCR005088)
O P I N I O N
APPEAL from a judgment of the Superior Court of Madera County. Charles A.
Wieland, Judge.
Ross Thomas, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Stanley Cross, Acting Assistant Attorney General, and Stephen G. Herndon and
David Andrew Eldridge, Deputy Attorneys General, for Plaintiff and Respondent.

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Appellant, Michael Wayne Tucek, was convicted of assault with the infliction of
great bodily injury on a person who was at least 70 years of age. (Pen. Code,1 §§ 245,
subd. (a)(1) and 12022.7, subd. (c).) He was sentenced to an aggregate term of nine
years’ imprisonment, calculated as the four-year upper term for the assault plus a
consecutive five-year term for the great bodily injury enhancement. As a circumstance in
aggravation, the court found that appellant engaged in violent conduct involving a serious
danger to society. (Cal. Rules of Court, rule 4.421(b)(1.)
On appeal, he argued that the photo lineup procedure was impermissibly
suggestive and therefore he was denied due process by the admission of the victim’s
extrajudicial and in-court identifications. Appellant also argued that the sentencing court
infringed his federal constitutional jury trial right as interpreted in Blakely v. Washington
(2004) 542 U.S. 296 (Blakely) by imposing an upper term based on findings of
aggravated facts that were not admitted or found true by the jury’s verdict.
In our initial opinion we rejected appellant’s claim that the photo lineup procedure
was unduly suggestive. Following and applying Cunningham v. California (2007) 127
S.Ct. 856 (Cunningham), we determined that under the facts presented in this case,
imposition of the upper term infringed appellant’s jury trial right; we vacated the
sentence and ordered the matter remanded for resentencing.
Respondent petitioned the California Supreme Court for review, which was
granted on May 16, 2007. On September 12, 2007, the Supreme Court transferred the
case back to the court with directions to vacate our decision and reconsider the
constitutionality of appellant’s sentence in light of People v. Black (2007) 41 Cal.4th 799
(Black II) and People v. Sandoval (2007) 41 Cal.4th 825 (Sandoval).
Having reviewed the case in light of Black II and Sandoval, we conclude that
imposition of the upper term did not infringe appellant’s jury trial right.
1 All further statutory references are to the Penal Code.

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FACTS
On December 4, 2004, 74-year-old William Merryfield confronted 13-year-old
Ashley after she and two friends took the key to William’s tractor. According to Ashley,
William slapped her face.
Ashley returned home and told appellant, a family friend, what had happened.
Appellant left shortly thereafter.
That afternoon William and his wife were working on their property when a red
car drove up and parked. A man, whom William later identified as appellant, stepped out
of the car, quickly approached William, and punched him in the eye. The first blow
knocked William to the ground. Appellant then continued to punch and kick William.
William spent nine days in the hospital as a result of the assault. On December 9,
while William was hospitalized, Sheriff’s Detective Jack Wayman showed him a photo
lineup. This array consisted of photographs of six men, including a six- or eight-year-old
photograph of appellant. William looked at this photograph array for 30 to 40 seconds
but made no identification. William testified that he was hardly awake at the time
because he was heavily sedated with pain medication.
On December 14, after William’s release from the hospital, Detective Wayman
showed him another array of six photographs. This time William identified appellant as
his assailant. He testified that he identified appellant “almost instantly.”
The second photograph of appellant was a recent booking photo and looked
considerably different from the first one. In the first photograph appellant has a much
fuller face, wavy and curly dark hair almost to his shoulders, a dark mustache, and a salt
and pepper beard. In the second photograph appellant’s hair is gray, short cropped and
receding, and he has a very trimmed gray mustache and goatee. Appellant’s photograph
was in a different position in each array. However, to keep the backgrounds neutral on
the second array, appellant’s head had been cut out and pasted onto another man’s neck.

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Appellant moved to suppress William’s identification. The trial court denied the
request. The court stated “I don’t think that that lineup, either one of them, is suggestive
any more so than any other lineup, much less unduly suggestive.”
William made an in-court identification of appellant at trial. He testified that his
recollection of appellant was from the “scene of the crime,” not from the photo lineup.
DISCUSSION
1. Appellant did not demonstrate the existence of an unreliable identification
procedure.
Appellant contends that William’s extrajudicial and in-court identifications of him
as the assailant were tainted by an unduly suggestive process. According to appellant,
this position is supported by several factors. Appellant notes that William saw his
attacker only momentarily before suffering a severe blow to the head, appellant’s image
was the only one included in both arrays, William was heavily drugged when he viewed
the first lineup, and appellant’s picture in the second array was the only one that was
altered. Thus, appellant argues, the trial court erred in refusing to exclude that
identification evidence.
In order to determine whether identification evidence violates a defendant’s right
to due process, the court considers (1) whether the identification procedure was unduly
suggestive and unnecessary and, if so, (2) whether the identification was nevertheless
reliable under the totality of the circumstances. (People v. Cunningham (2001) 25
Cal.4th 926, 989.) In ruling on the reliability of the identification, the court takes into
account such factors as the opportunity of the witness to view the suspect at the time of
the offense, the witness’s degree of attention at the time of the offense, the accuracy of
his or her prior description of the suspect, the level of certainty demonstrated at the time
of the identification, and the lapse of time between the offense and the identification.
(Ibid.)

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The defendant bears the burden of showing unfairness as a demonstrable reality,
not just speculation. (People v. DeSantis (1992) 2 Cal.4th 1198, 1222.) On appeal, the
claim that an identification procedure was unduly suggestive is subject to the independent
standard of review. (People v. Kennedy (2005) 36 Cal.4th 595, 609.)
Appellant notes that his image was the only one included in both arrays.
Appellant argues that, by repeatedly displaying his picture, the police implicitly advised
William that they believed appellant to be the assailant.
However, the fact that appellant was the only person common to both lineups did
not per se violate his due process rights. (Cf. People v. DeSantis, supra, 2 Cal.4th at
p. 1224.) Furthermore, appellant looked very different in the two photographs. The first
one was at least six years old and was taken when appellant was heavier, had long dark
hair as opposed to short-cropped gray hair, and a dark mustache and salt and pepper
beard as opposed to a very trimmed gray mustache and goatee. Since the two
photographs were not obviously of the same person, the presence of appellant’s
photograph in both arrays was not unduly suggestive.
Appellant also points out that William was heavily sedated when he viewed the
first lineup. According to appellant, this medicated state may have impacted the way
William mentally processed the photographs and thus, William may have identified
appellant in the second lineup simply because he had seen appellant’s photograph earlier
while in a drugged state.
Appellant provides no factual or legal basis for this claim. Rather, it is pure
speculation. Thus, the fact that William was sedated when he viewed the first lineup
does not assist appellant in establishing unfairness.
Appellant further objects to appellant’s photo having been the only one in the
second array that was altered. As noted above, appellant’s head was pasted on another
man’s neck to provide a neutral background. Otherwise, appellant’s photo would have
stood out as the only booking photo. However, William testified that he did not notice

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anything “abnormal” about any of the photos. In fact, appellant admits that the alteration
by itself was not necessarily suggestive.
Thus, even under the independent standard of review, it must be concluded that
appellant did not meet his burden of establishing that the photo lineup was unduly
suggestive. Accordingly, it is not necessary to consider other factors indicating
reliability, such as the victim’s opportunity to view the criminal at the time of the crime.
That analysis comes into play only if the court first decides in favor of the defendant on
the first part of the test.
2. Imposition of the aggravated term did not infringe appellant’s federal
constitutional jury right.
The probation report recommended imposition of the upper four-year term for the
substantive offense plus a consecutive five-year term for the enhancement.2 The
probation report stated that appellant suffered one prior criminal conviction: a
misdemeanor conviction for making criminal threats. Appellant was placed on probation
for that offense and he was on probation when he committed the current crime.
Appellant’s probation officer, Ryan Oliphant, was interviewed by the officer who
prepared the probation report. Oliphant “indicated the defendant had performed very
poorly while on probation and is facing a further violation of probation.” The probation
report listed three aggravating circumstances: (1) appellant engaged in violent conduct
indicating a serious danger to society; (2) he was on probation in Mariposa Superior
Court case No. 1750 when he committed the current offense; and (3) his performance on
probation has been unsatisfactory, as evidenced by probation violations and commission
of a new criminal offense. Also, the probation report states in the section entitled
“ANALYSIS” that appellant “was on probation in Mariposa County for a misdemeanor
2 On our own motion, the record is augmented with the probation report that was
filed in the superior court on October 19, 2005.

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conviction of terrorist threats when he committed [the current] offense.” No mitigating
circumstances were found.
At the sentencing hearing, defense counsel argued that appellant had been a
satisfactory probationer and that his criminal record is insignificant. The prosecutor
argued that appellant’s performance on parole was unsatisfactory because the record
includes three separate violations of probation in addition to his commission of the
current offense.
The trial court imposed the upper term of four years’ imprisonment on the section
245, subdivision (a)(1), conviction and imposed a consecutive five-year term for the
section 12022.7, subdivision (c), enhancement. The trial court stated that it had read the
probation report and that it was adopting the report’s recommendations. The court found
that the circumstances in aggravation outweighed those in mitigation. The court
specifically mentioned one of the aggravating circumstances listed in the probation report
-- that appellant engaged in violent conduct involving a serious danger to society. (Cal.
Rules of Court, rule 4.421(b)(1).) The court noted that, even if William unlawfully
touched Ashley, appellant’s actions were clearly not sanctioned by a lawful society and
were not excused.
Appellant argues that the sentence must be reversed because he was denied his
federal constitutional right to a jury trial on the factors supporting imposition of the
aggravated term. We disagree. As will be explained, appellant’s recidivism rendered
him constitutionally eligible for imposition of the upper term and the trial court’s reliance
on an additional offense based aggravating factor did not infringe appellant’s jury trial
right.
In People v. Black (2007) 41 Cal.4th 799 (Black II) our Supreme Court determined
that the presence of one valid aggravating factor, such as a defendant’s prior criminal
history, that is established in a manner satisfying Sixth Amendment requirements renders
a defendant constitutionally eligible for imposition of an upper term sentence and that

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“any additional factfinding engaged in by the trial court in selecting the appropriate
sentence among the three available options does not violate the defendant’s right to jury
trial.” (Id. at p. 812.) Black II states:
“… [A]s long as a single aggravating circumstance that renders a defendant
eligible for the upper term sentence has been established in accordance with
the requirements of Apprendi and its progeny, any additional factfinding
engaged in by the trial court in selecting the appropriate sentence among
the three available options does not violate the defendant’s right to jury
trial.” (Ibid.)
Black II also determined that the trial judge may decide whether a defendant has
suffered prior convictions and whether those convictions are numerous or of increasing
seriousness. (Black II, supra, 41 Cal.4th at pp. 819-820.) In making these
determinations, the trial judge may rely on the probation report. (Id. at pp. 818-819, fn.
7.) Thus, in this case the trial court was permitted to consider appellant’s prior criminal
threat conviction as an aggravating circumstance.
Also, the court was permitted to consider appellant’s status as a probationer when
he committed the current offenses. Although the question of whether a defendant’s
probation status falls within the prior conviction exception was not directly presented in
Black II, the California Supreme Court’s construction of the prior conviction exception
leads us to conclude that our Supreme Court would consider a defendant’s status on
probation to be a “fact that increases the penalty for a crime beyond the prescribed
statutory maximum” (Apprendi v. New Jersey (2000) 530 U.S. 466, 490 [Apprendi]), but
that need not be submitted to a jury. (See U.S. v. Corchado (10th Cir. 2005) 427 F.3d
815, 820 [prior conviction exception extends to subsidiary findings such as probation
status]; People v. Yim (2007) 152 Cal.App.4th 366, 371 [parole status falls within prior
conviction exception].) The court was free to accept the probation officer’s
determination that appellant’s prior performance on probation was unsatisfactory over
appellant’s argument to the contrary.

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The trial court’s reference during the sentencing hearing to an additional offense
based aggravating factor (that appellant engaged in violent conduct involving a serious
danger to society) did not infringe appellant’s jury trial right. Black II explains:
“… [S]o long as a defendant is eligible for the upper term by facts that have
been established consistently with Sixth Amendment principles, the federal
Constitution permits the trial court to rely upon any number of aggravating
circumstances in exercising its discretion to select the appropriate term by
balancing aggravating and mitigating circumstances regardless of whether
the facts underlying those circumstances have been found to be true by a
jury.” (Black II, supra, 41 Cal.4th at p. 813.)
Appellant quarrels with Black II’s holding, arguing that its “narrow reading of
Apprendi and its progeny cannot withstand scrutiny.” We summarily reject this
contention because we are bound to follow the decisions of our Supreme Court. (Auto
Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
We do not find a Sixth Amendment violation on the facts presented in this case.
Imposition of the upper term did not infringe any of appellant’s constitutional rights and
protections.
DISPOSITION
The judgment is affirmed.
_________________________
Levy, Acting P.J.
WE CONCUR:
_______________________________
Gomes, J.
_______________________________
Hill, J.

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