People v. Caparrotta

323 Cal.Rptr.3d 494

The PEOPLE, Plaintiff and Respondent,

v.Marcelo Salvador CAPARROTTA, Defendant and Appellant

D083314

Court of Appeal, Fourth District, Division 1.

Filed July 16, 2024

APPEAL from a judgment of the Superior Court of San Bernardino County, Corey G. Lee, Judge. Affirmed. (Super. Ct. No. FWV21004734)

Kevin Smith, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.

IRION, Acting P. J.

A jury found Marcelo Caparrotta guilty of one count of elder abuse likely to produce great bodily harm or death (Pen. Code, § 368, subd. (b)(1)) (count 1), and one count of making a criminal threat (id., § 422) (count 2). After making a true finding that Caparrotta incurred a prior strike and finding the existence of several aggravating factors, the trial court sentenced Caparrotta to a prison term of six years,

Caparrotta contends that (1) the trial court erred in sustaining objections to two of the peremptory strikes he exercised during jury selection; (2) insufficient evidence supports a finding that he inflicted elder abuse under conditions likely to produce great bodily harm or death; (3) it was error to instruct, as stated in CALCRIM No. 830, that "great bodily harm" is "an injury that is greater than minor or moderate harm"; (4) the trial court erred in imposing a middle term sentence without acknowledging the lower term sentence that Caparrotta contends was presumptively required under Penal Code section 1170, subdivision (b)(6) due to the presence of a mitigating factor; and (5) the trial court improperly imposed certain fines and fees.

We conclude that Caparrotta’s arguments lack merit, and we accordingly affirm the judgment.

I. FACTUAL AND PROCEDURAL BACKGROUND

Caparrotta’s father (Father) is in the latter half of his seventies.¹ Father has arthritis, walks with a cane, and is no taller than 5’3". On December 12, 2021, Father was sitting in his living room, watching television. Caparrotta was at the house and, according to Father, was loud and drunk. Father asked Caparrotta to leave the house because he did not want to engage with Caparrotta in an argument about Caparrotta’s girlfriend.

As Father testified, Caparrotta reacted by punching Father in the head several times.² The blows were "strong." They knocked Father out of his seat to the ground, and they made Father’s glasses fly off his face. While Father was on the ground, Caparrotta hit Father three times in the ribs before leaving the house. Father testified that as a result of the assault, his face was "full of blood." he was bleeding from his ear, and he had cuts and scrapes on his arm.

Paramedics arrived and treated Father at the scene, but Father did not go to the hospital. Photographs of Father taken by police after the assault show injuries to Father’s face, ear and arm.

Several days after the assault on Father, Caparrotta left a voicemail message on his brother’s phone in which he threatened to kill his brother and said he was going to "fuck up dad, too. Again."

Caparrotta was charged with one count of elder abuse likely to produce great bodily harm or death (Pen. Code, § 368, subd. (b)(1));³ and one count of making a criminal threat (Pen. Code, § 422).

The jury convicted Caparrotta on both counts. The trial court made a true finding that Caparrotta incurred a prior strike. It also found the existence of four aggravating circumstances (Pen. Code, § 1170, subd. (b)(2)), namely that (1) the crime involved great violence, great bodily harm, threat of great bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or callousness; (2) the victim was particularly vulnerable; (3) Caparrotta’s prior convictions were numerous or of increasing seriousness; and (4) Caparrotta had served a prior term in prison.

At sentencing, the trial court denied Caparrotta’s motion to strike his prior strike. It imposed a prison sentence of six years, composed of a three-year middle term sentence on the elder abuse conviction, doubled due to the prior strike, with a concurrent 365-day sentence on the criminal threat conviction.

II. DISCUSSION

A. Caparrotta Has Not Established That the Trial Court Prejudicially Erred in Sustaining the People's Objections to Defense Counsel's Exercise of Peremptory Challenges During Jury Selection

We first consider Caparrotta’s contention that the trial court erred in sustaining the People’s objections to two of the peremptory challenges exercised by defense counsel during jury selection. Specifically, Caparrotta contends that the trial court erred by improperly interpreting the statutory provisions governing its evaluation of the People’s objections.

1. Applicable Statutory Standards

To evaluate Caparrotta’s argument, we first discuss the applicable statutory provisions. Effective January 1, 2021, Code of Civil Procedure⁴ section 231.7 governs the procedures for identifying the discriminatory exercise of peremptory challenges during jury selection for criminal trials.

(§ 231.7, subds. (i), (k).) As Caparrotta’s trial was in April 2022, the trial court applied section 231.7.

Section 231.7, subdivision (a) states that "[a] party shall not use a peremptory challenge to remove a prospective juror on the basis of the prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or the perceived membership of the prospective juror in any of those groups." During jury selection, either a party, or the trial court on its own motion, may object that a peremptory challenge has been exercised on an improper basis. (§ 231.7, subd. (b).) When an objection has been made, "the party exercising the peremptory challenge shall state the reasons the peremptory challenge has been exercised." (§ 231.7, subd. (c).)

In a series of detailed subdivisions, section 231.7 sets forth the procedure that the trial court must follow in evaluating whether, in light of the reasons that the party has identified for exercising the peremptory challenge, the objection should be sustained.

The first subdivision detailing the relevant procedure is subdivision (d)(1) of section 231.7, which states: "The court shall evaluate the reasons given to justify the peremptory challenge in light of the totality of the circumstances. The court shall consider only the reasons actually given and shall not speculate on, or assume the existence of, other possible justifications for the use of the peremptory challenge. If the court determines there is a substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge, then the objection shall be sustained. The court need not find purposeful discrimination to sustain the objection."

Section 231.7, subdivision (d)(3) states that "[i]n making its determination" under subdivision (d)(1), "the circumstances the court may consider include, but are not limited to, any of the following …" The list that follows is an extensive description of items the trial court may consider:

"(A) Whether any of the following circumstances exist: [¶] (i) The objecting party is a member of the same perceived cognizable group as the challenged juror. [¶] (ii) The alleged victim is not a member of that perceived cognizable group. [¶] (iii) Witnesses or the parties are not members of that perceived cognizable group.

"(B) Whether race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, bear on the facts of the case to be tried.

"(C) The number and types of questions posed to the prospective juror, including, but not limited to, any the following: [¶] (i) Consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the concerns later stated by the party as the reason for the peremptory challenge pursuant to subdivision (c). [¶] (ii) Whether the party exercising the peremptory challenge engaged in cursory questioning of the challenged potential juror. [¶] (iii) Whether the party exercising the peremptory challenge asked different questions of the potential juror against whom the peremptory challenge was used in contrast to questions asked of other jurors from different perceived cognizable groups about the same topic or whether the party phrased those questions differently.

"(D) Whether other prospective jurors, who are not members of the same cognizable group as the challenged prospective juror, provided similar, but not necessarily identical, answers but were not the subject of a peremptory challenge by that party.

"(E) Whether a reason might be disproportionately associated with a race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups.

"(F) Whether the reason given by the party exercising the peremptory challenge was contrary to or unsupported by the record.

"(G) Whether the counsel or counsel’s office exercising the challenge has used peremptory challenges disproportionately against a given race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, in the present case or in past cases, including whether the counsel or counsel’s office who made the challenge has a history of prior violations …." (§ 231.7, subd. (d)(3).)

Next, section 231.7, subdivisions (e) and (g) provide that when a party identifies any of a number of specific reasons for exercising a peremptory challenge a presumption...