P. v. Saechao

Filed 4/4/07 P. v. Saechao CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and Respondent,
v.
LO KUAN SAECHAO,
Defendant and Appellant.
F050431
(Super. Ct. No. 29810)
OPINION
THE COURT*
APPEAL from a judgment of the Superior Court of Merced County. Ronald W.
Hansen, Judge.
John Ward, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Brian Alvarez and Kathleen A.
McKenna, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
* Before Wiseman, Acting P.J., Cornell, J. and Hill, J.

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2.
A jury convicted defendant Lo Kuan Saechao of attempted sexual battery (Pen.
Code,1 § 243.4, subd. (a); count 1), corporal injury to a spouse or cohabitant (§ 273.5,
subd. (a); count 2), unlawful taking or driving a vehicle (Veh. Code, § 10851, subd. (a);
count 3), and false imprisonment (§ 236; count 4). In a bifurcated proceeding, the court
found true the enhancement allegation in each count that defendant suffered a prior
juvenile adjudication for a serious or violent felony (i.e., robbery) on April 3, 1993.
Subsequently, the court granted defendant’s motion to strike the prior adjudication, and
sentenced defendant to a total prison term of five years two months as follows: the upper
term of four years on count 2, plus six months on count 1 (one-third the middle term),
and eight months on count 3. Defendant’s sentence on count 4 was stayed under section
654.
On appeal, defendant contends: (1) the trial court erred by admitting evidence of
prior acts of domestic violence under Evidence Code section 1109 because the statute is
unconstitutional; and (2) the trial court erred by imposing the upper term based on facts
not found by a jury. We affirm.
FACTS
On the night of September 20, 2005, defendant approached his former girlfriend,
Muang Saeturn, in the parking lot as she was leaving her place of work. Defendant asked
to talk to her and for a ride home. Saeturn initially declined, but when she unlocked the
door of her car, defendant got into the back seat. Feeling bad for defendant because it
was cold outside, Saeturn decided to give him a ride home. During the drive, defendant
moved up to the front passenger seat and the two argued. Defendant asked Saeturn who
her boyfriend was and told her he wanted to have sex with her. Saeturn told defendant
she was not going to have sex with him because they were not together.
1 Further statutory references are to the Penal Code unless otherwise specified.

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3.
When they arrived at defendant’s apartment, they stayed in the car and argued for
about 20 to 30 minutes. Saeturn testified that defendant wanted to continue talking about
having sex and Saeturn’s relationships with other guys. During this time the argument
became physically violent. Defendant took Saeturn’s car keys out of her hands, forced
himself into the driver’s seat, and threw Saeturn into the passenger’s seat. He also bit
Saeturn on the arm a couple times.
Eventually, defendant exited the car and went inside his house. Saeturn followed
him inside because she wanted to get her keys back. Once inside, defendant locked the
door and pushed Saeturn onto the couch. He got on top of her and tried to unbutton her
pants. Defendant told Saeturn he wanted to have sex with her. Saeturn, who was crying
and screaming, told defendant no. At some point as Saeturn was struggling to get away
from defendant, he bit her on the back.
Saeturn eventually was able to get up and open the front door. Defendant
followed her outside and told her he would throw her keys in the bushes. Saeturn told
him, “‘Go ahead. I[’d] rather be outside looking than be inside the house with you.’”
Saeturn then went to a neighbor’s house and called 911. Without Saeturn’s permission,
defendant got into Saeturn’s car and drove away. While Saeturn was speaking with the
911 dispatcher, defendant returned and asked her if she wanted her car back. Saeturn
replied, “‘…no … it’s not a joke.’” Defendant then drove away again.
Merced City Police Corporal Allen Ward responded to the 911 call. When he
arrived, Saeturn was standing outside on the sidewalk crying. Initially, Saeturn told
Corporal Ward that her ex-boyfriend had just stolen her car. As Saeturn kept talking, it
became evident that more than a car theft had occurred, and he started asking her
questions about domestic violence. Officer Ward also saw bite marks on Saeturn’s arm
and photographed them. But the digital photographs were accidentally lost during the
process of transferring them to a computer. Officer Ward understood that the bites had
occurred inside defendant’s apartment.

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4.
The prosecution offered evidence of prior acts of domestic violence against
defendant’s ex-wife, Maily Moua, during an incident in November 2002. Moua testified
that after their relationship ended, she was staying at a friend’s house, when defendant
unexpectedly arrived at the house early in the morning. An argument ensued, during
which defendant pushed Moua around. The responding police officer observed bruises
on one of Moua’s arms.
The defense
According to defendant’s version of what occurred on September 20, 2005, he saw
Saeturn at the store where she worked and she agreed to his request to give him a ride
home. They did not argue on the ride home. When they arrived, Saeturn parked her car
and came inside with defendant. They went to his bedroom, watched television for a
while, and then started kissing and “making out.”
Defendant undressed Saeturn and himself. As he was undressing Saeturn, he bit
her on the elbow. She asked him to bite her again and he did. They then started having
sex. Defendant was behind Saeturn, when she told him to bite her on the back.
Defendant bit her back on her bare skin. Defendant claimed Saeturn liked “rough sex”
and that biting was part of “normal sex” for them.
After they had sex, Saeturn asked defendant why he had not come over or called
her. He told her had had been “busy working” and “kicking it” with his friends. Saeturn
became angry when he admitted that he had been hanging around with a girl. She then
asked defendant if he had any money for her, and he said no because he had been
shopping a lot recently. After they argued about money, Saeturn became violent and
started hitting defendant. Defendant asked Saeturn for her car keys, so he could take a
drive while she calmed down. Saeturn gave him her keys, and he drove away in her car
with her permission.
Defendant drove to his sister’s house, where he stayed for a while, watching a
movie. He tried to call Saeturn’s cell phone but was unable to reach her. He eventually

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5.
called her at her mother’s house. Because Saeturn was still mad at him, he dropped her
car off at a McDonald’s restaurant for her to pick up. After dropping off the car,
defendant’s sister picked him up and he spent the night at her house.
The next morning, defendant’s sister drove him back to his apartment. He realized
he had Saeturn’s cell phone when it started ringing. Saeturn then came over to pick up
her phone and told defendant she was going shopping. Saeturn was nice to defendant
and he did not think anything was wrong. He did not know she had called the police or
made any reports against him.
Defendant acknowledged he had problems in the past with his ex-wife, Maily
Moua, and had been arrested. During the incident in 2002, Moua was staying with a
friend when defendant came to see her. When he arrived, he saw one of his male friends
jumping over the fence. He confronted Moua, held her wrists, and caused her bruising.
Defendant acknowledged a second incident occurred in June 2003, but claimed not to
have a clear memory of that incident. On cross-examination, he denied that in the
summer of 2003, he took Moua’s cell phone or bit her on the arm.
Rebuttal
Moua testified that in June 2003, she reported her cell phone had been stolen. The
circumstances were that defendant had showed up at her house and after he left, the
phone was gone. She also reported an incident, which had occurred a few days earlier.
Moua testified that defendant “came to the house and then questioning my whereabouts
and then he was biting me.” Moua testified that defendant bit her on the right arm,
leaving a large bruise.
Saeturn denied defendant’s version of what occurred on the night of September
20, 2005. She also disputed defendant’s claim that she enjoyed rough sex, and testified
she never allowed defendant to bite her during their relationship.

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6.
DISCUSSION
I. Evidence Code section 1109
Defendant contends the trial court erred by admitting evidence of his prior acts of
domestic violence against Maily Moua under Evidence Code section 1109.2 Defendant
argues that Evidence Code section 1109, on its face, violates constitutional due process
guarantees. We disagree.
The appellate courts have repeatedly rejected challenges to Evidence section 1109
on due process grounds. (People v. Hoover (2000) 77 Cal.App.4th 1020, 1025-1029;
People v. Escobar (2000) 82 Cal.App.4th 1085, 1095-1096; People v. James (2000) 81
Cal.App.4th 1343, 1353; People v. Jennings (2000) 81 Cal.App.4th 1301, 1309-1310;
People v. Brown (2000) 77 Cal.App.4th 1324, 1331-1334; People v. Johnson (2000) 77
Cal.App.4th 410, 416-419.) These cases relied on People v. Falsetta (1999) 21 Cal.4th
903, in which the Supreme Court concluded that a similar statute, Evidence Code section
1108, did not violate due process because the trial court’s discretion to exclude evidence
under Evidence Code section 352 provides a procedural safeguard against prejudice. We
likewise conclude Falsetta’s analysis is applicable to Evidence Code section 1109 and,
for the reasons explained in these cases, reject defendant’s due process challenge to the
statute.
II. Imposition of the upper term
Defendant contends the upper-term sentence imposed on count 2 violates his Sixth
Amendment and Fourteenth Amendment rights to a jury trial and proof of all facts
beyond a reasonable doubt rights because the sentence was based on aggravating factors
not reflected in the jury verdict or admitted by defendant. (Blakely v. Washington (2004)
2 Evidence Code section 1109 provides: “(a)(1) Except as provided in subdivision (e) or
(f), in a criminal action in which the defendant is accused of an offense involving domestic
violence, evidence of the defendant’s commission of other domestic violence is not made
inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352.”

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7.
542 U.S. 296 (Blakely); Cunningham v. California (Jan. 22, 2007, No. 05-6551) 546 U.S.
__ [127 S.Ct. 856] (Cunningham).).
The trial court explained its decision to impose the upper term as follows:
“The Court selects the upper term because the factors in aggravation that
the Court relies upon that he took advantage of a past relationship. He took
advantage of a position of trust. He also – the fact that he hasn’t learned.
He had a prior misdemeanor DV, attended the class and still engages in
similar violent behavior with his significant other whether it’s a spouse or
girlfriend. [¶] And under those factors – there are no factors in mitigation
the Court finds meaningful and, therefore, the Court selects the upper term
and sentences him to four years on Count 2.”
In Apprendi v. New Jersey (2000) 530 U.S. 466 (Apprendi), a five-justice majority
of the United States Supreme Court held, “Other than the fact of a prior conviction, any
fact that increases the penalty for a crime beyond the prescribed statutory maximum must
be submitted to a jury, and proved beyond a reasonable doubt.” (Id. at p. 490.) Blakely
held that “the ‘statutory maximum’ for Apprendi purposes is the maximum sentence a
judge may impose solely on the basis of the facts reflected in the jury verdict or admitted
by the defendant. [Citations.]” (Blakely, supra, 542 U.S. at p. 303, italics omitted.) In
Cunningham, the court held that, under California’s determinant sentencing scheme, the
upper term can only be imposed if the factors relied upon comport with the requirements
of Apprendi and Blakely. (Cunningham, supra, 546 U.S.___ [127 S.Ct. 856].)
Blakely describes three types of facts that a trial judge can properly use to impose
an aggravated sentence: (a) “‘the fact of a prior conviction’” (Blakely, supra, 542 U.S.
at p. 301); (b) “facts reflected in the jury verdict” (id. at p. 303, italics omitted); and (c)
facts “admitted by the defendant” (ibid., italics omitted). The first type is at issue here.
As Apprendi states, and Blakely agrees, prior recidivist conduct may be used by a
sentencing judge, even absent a jury finding, to increase a defendant’s term. (Apprendi,
supra, 530 U.S. at pp. 488, 490; Blakely, supra, 542 U.S. at p. 301.)

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8.
In this case, the trial court clearly relied on defendant’s recidivism in making its
sentencing decision. The probation officer’s report reflects that in 2003, defendant was
convicted of misdemeanor corporal injury to a spouse or cohabitant and received a
probationary sentence. The trial court specifically noted defendant’s prior conviction, his
apparent failure to learn from that conviction, and his repetition in the instant offense of
the same type of conduct underlying his prior conviction. Because the court expressly
relied on defendant’s prior conviction and recidivism to impose the upper term,
defendant’s sentence does not violate Apprendi, Blakely, or Cunningham. (See
Almendarez-Torres v. United States (1998) 523 U.S. 224, 243 [recidivism is traditional,
if not most traditional, basis for increasing offender’s sentence].)
Assuming arguendo that the trial court erred in relying on other aggravating
factors, the error was harmless. It is settled that only a single aggravating factor is
required to impose the upper term. (People v. Osband (1996) 13 Cal.4th 622, 728.)
Here, the trial court relied on defendant prior conviction and recidivism to impose the
upper term, as permitted by Cunningham and Blakely. Thus, even if we were to assume
error under Cunningham based on the trial court’s reference to other aggravating factors,
the error was harmless beyond a reasonable doubt under Chapman v. California (1967)
386 U.S. 18, 24; furthermore, there was no abuse of discretion under People v. Watson
(1956) 46 Cal.2d 818, 836. The factors chiefly relied upon by the trial court in choosing
the upper term flowed from defendant’s prior conviction, strongly suggesting the trial
court would have imposed the upper term based on the prior conviction even in the
absence of any impermissible factors. Under these circumstances, remand for
resentencing is unnecessary.
DISPOSITION
The judgment is affirmed.

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