People v. Sims CA5 ( 2021 )

Filed 5/17/21 P. v. Sims 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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,
F078792
Plaintiff and Respondent,
(Super. Ct. No. MF013030A)
v.
DASHAUN LEMAR SIMS, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. Marcos R.
Camacho, Judge.
Michelle T. Livecchi-Raufi, under appointment by the Court of Appeal, for
Defendant and Appellant.
Xavier Becerra, Attorney General, Michael P. Farrell, Assistant Attorney General,
Carlos A. Martinez and Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff
and Respondent.
-ooOoo-
INTRODUCTION
After an altercation in a market, defendant Dashaun Lemar Sims was convicted by
jury of making criminal threats against Becki L. in violation of Penal Code section 422
(count 1)1 and of misdemeanor simple battery against Tamra P. in violation of
section 243, subdivision (a) (count 4). The jury was unable to reach a verdict on counts 2
and 3, which alleged defendant made criminal threats against Sandra B. and Tamra,
respectively, in violation of section 422; a mistrial was declared on those counts, and they
were later dismissed. In a bifurcated proceeding, the trial court found true the allegation
of a strike prior within the meaning of the “Three Strikes” law (§§ 667, subds. (b)–(i),
1170.12, subds. (a)–(d)). Defendant was sentenced to double the two-year middle term
on count 1 (four years total) (§§ 18, subd. (a), 422, subd. (a), 667, subd. (e)(1)), and to
one year of jail for violation of section 243, subdivision (a), on count 4 to run concurrent
to the sentence on count 1 (§§ 18, subd. (a), 422, subd. (a), 667, subd. (e)(1)). The court
imposed a $300 restitution fee under section 1202.4, subdivision (b), a $40 court
operations assessment fee under section 1465.8, and a $30 court facilities fee pursuant to
Government Code section 70373.
Defendant argues the trial court erred by permitting sheriff’s deputies to testify
about what Becki, Tamra, Sandra and Brittany S. told them during the deputies’
investigation. Defendant maintains the error not only violated state law, it also rendered
his trial fundamentally unfair and violated his due process rights. Defendant further
contends Becki’s cell phone video recording of the store’s surveillance video of the
incident was admitted in violation of Evidence Code section 356 (rule of completeness)
and that it was unduly prejudicial under Evidence Code section 352. Defendant
maintains the trial court abused its discretion by refusing to reduce count 1 to a
misdemeanor, and the trial court failed to obtain a valid waiver of a jury trial regarding
1 All further statutory references are to the Penal Code unless indicated otherwise.
2.
defendant’s prior conviction. Additionally, defendant argues the court failed to conduct
an ability-to-pay hearing as to the fines and fees, which should be stayed or stricken
pursuant to People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas). Finally, in a
supplemental brief, defendant argues there is no substantial evidence to support the trial
court’s finding his prior conviction constituted a strike and the one-year sentence
imposed for the misdemeanor battery conviction is unauthorized.
The People did not respond to the arguments made in defendant’s supplemental
brief. As to all arguments made in defendant’s opening brief, the People dispute
defendant is entitled to any relief.
We conclude the trial court’s prior strike finding was not supported by substantial
evidence. We reverse the trial court’s determination on the prior strike and remand for
further proceedings. We also conclude the one-year jail term imposed for the
misdemeanor battery conviction under section 243, subdivision (a), is unauthorized
because the maximum sentence to be imposed under the statute is a six-month jail term
and/or a $2,000 fine. (§ 243, subd. (a).) As the case must be remanded for further
proceedings regarding the prior conviction and resentencing will be required, defendant’s
argument regarding Duenas is moot and we do not address it. In all other respects, the
judgment is affirmed.
FACTUAL SUMMARY
I. Factual Background
On July 4, 2018, defendant came into the Family Dollar store in Boron, California,
two different times. His first trip to the store occurred before noon. He was not allowed
to return an item, and he became angry and left. He returned about an hour later and was
asked to leave by the store manager. Defendant became angry and began yelling at the
store manager, threatening to kill her and “shoot up” the store. In his attempt to reach or
hit the store manager, defendant bumped into or pushed another customer. Defendant’s
3.
brother, Za’un Sims,2 came into the store and physically pulled defendant out. After he
left, the front door to the store was locked and the store manager, a cashier, and two
customers waited for law enforcement to respond to the 911 call that had been placed.
Two deputies responded to the store, interviewed the witnesses and reviewed the
store’s surveillance video of the incident. Defendant was identified and later charged
with four offenses: making criminal threats against the store manager, Becki L. (§ 422,
count 1); making criminal threats against a store cashier, Sandra B. (§ 422, count 2);
making criminal threats against a customer, Tamra P. (§ 422, count 3); and misdemeanor
battery against Tamra P. (§ 243, subd. (a), count 4). A trial was held in November 2018.
II. Trial Testimony
Becki L., a store manager working that day, testified she regularly sees defendant
in the store—usually daily. That morning, defendant had been in the store to return an
item but Becki refused to do so without a receipt. According to Becki, defendant became
upset and then walked out of the store with an unpaid item. When she confronted him
about that item, he started “screaming” at her and she decided not to pursue the issue. He
left the store, but returned later that morning. Becki had been instructed to tell defendant
he was no longer welcome in the store. When Becki approached defendant and told him
this, he started screaming that he had not done anything; Becki began backing up toward
the cash registers. Defendant continued yelling and screaming at Becki and, although she
could not remember his exact words, she testified defendant was saying that he was going
to hurt her, he was going to come back and kill her, and he knew her face and her name
and who she is. He said he was going to get a gun and “shoot up” the store.
Once Becki reached the front of the store by the cash registers, defendant stood at
the front door and called to his brother who was in their car in the parking lot. Becki
2 Because defendant and Za’un share the same last name, Za’un will be referred to by his
first name.
4.
tried to get behind a register counter to put space between her and defendant; defendant
tried to follow her. Another customer, Tamra P., stepped between them and attempted to
stop defendant; defendant took a swing at Becki and ended up pushing Tamra. Za’un
was trying to pull defendant out of the store, which he eventually succeeded in doing.
Becki was scared defendant was going to get a gun and come back so as soon as he left
they locked the doors. Becki had all the customers except Tamra and Brittany leave. It
took the sheriff’s deputies two and one-half hours to respond. When law enforcement
arrived, they asked Becki for the store’s video surveillance, so she took them to the office
to view it. During Becki’s trial testimony, the store surveillance video was introduced
and played for the jury.
Sandra, a cashier working that day, testified defendant had come in earlier in the
morning and asked to return an item. Sandra was unable to process the return without a
manager, so she called Becki over. Becki told defendant she could not process the return
for him, and defendant was very angry when he left the store. About an hour later he
came back to the store, and Sandra notified Becki that he was back. Becki told defendant
he had to leave because he had been “mean” earlier. Defendant became irate, started
throwing his hands around and getting louder. Defendant and Becki were standing over
by the coolers, and while Sandra could not hear their conversation, she saw Becki start
backing up and heard Becki telling defendant that he had to leave the store. Sandra could
hear defendant talking loudly, but she could not hear what he was saying. Becki kept
backing up and then told Sandra to call 911. Sandra telephoned 911 and watched
defendant become more and more angry, talking louder, and flaring his arms. Sandra
became more and more concerned. Then defendant called for someone else to come in
from the outside, and another man joined defendant—the second man tried to get
defendant to leave. Defendant said something about bringing back a gun and that he was
going to get his gun and come back and shoot. The other man continued to pull
defendant out of the store while defendant resisted.
5.
Tamra testified she was at the store that morning shopping with her daughter,
Brittany. She saw defendant following Becki and heard him saying he did not have to
leave, that he had not done anything wrong, and that Becki could not make him leave.
Becki continued to back up and defendant followed. Tamra decided to position herself
between defendant and Becki because Tamra felt defendant was coming at Becki very
aggressively. As defendant was gesticulating with his arms, Becki went behind a
counter, and then defendant hit Tamra while trying to get to Becki. Another man had
come into the store and tried to drag defendant out. Defendant was yelling that he would
be back, that he was going to get Becki, he knew her face and he would be back to shoot
up the store. The other man removed defendant from the store in a bear hug. Tamra
heard a car squeal away, and they locked the doors to the store.
On cross-examination, Tamra denied following defendant to the door while he was
being dragged out by his brother. She said she went to the door because her daughter was
standing outside. The video was shown by defendant’s counsel during the cross
examination, and Tamra identified herself, Becki, defendant and Za’un. Tamra explained
defendant never hit her with a closed fist, he bumped into her.
Brittany testified she was at the store that day, and she noticed defendant yelling.
He was being loud and was trying to get to Becki, the store manager, whom Brittany has
known for five or six years. Defendant began yelling really loudly at Becki and
threatening her and then tried to go after Becki, which is when Tamra stepped between
them: defendant was trying to get by Brittany and Tamra at the checkout, and Tamra
stepped in his way. Brittany saw defendant trying to swing at Becki, and Tamra told
Brittany to leave the store and take a small child in the store with her. On her way
outside, Brittany saw another man grab defendant and pull him out of the store. She
heard defendant saying he was going to come back and shoot up the store, a threat
Brittany took seriously. After defendant had been pulled out of the store, Brittany went
back into the store for Tamra. Sandra had been on the phone with 911 the entire time.
6.
On cross-examination, Brittany confirmed she had told deputies defendant had
threatened to kill Becki and shoot up the store. When defendant pushed Tamra, Brittany
told him not to touch her mother, but Brittany did not try to grab him; she tried to get her
mother away from him. Defense counsel showed the video to the jury again during
Sheridan’s testimony and she identified herself and her mother in the video.
As described in more detail below, the investigating deputies James Perry and
Daniel Rickard testified about what they observed when they arrived at the store, what
the witnesses told them, and what portions of the store’s surveillance video they
reviewed. Perry also testified when he was dispatched that day, and how long it
generally takes him to drive from Mojave, where he was when dispatched, to Boron.
Za’un testified about the altercation on defendant’s behalf. Za’un had stayed
outside in the car while defendant went into the store—he could see the store from his
location in the car. Within 30 seconds, defendant gestured to Za’un to come into the
store. When Za’un arrived inside, he saw that defendant was upset and there was an
argument over something. Defendant was being verbally attacked by two store clerks
and another aggressive female. Za’un told defendant it was not worth arguing over and
he tried to grab defendant’s hands to calm him down. He never saw defendant hit anyone
or make any threats. One woman in the store told defendant to “‘get the f--- out of
here,’” and a clerk was saying profane and racially disparaging things. According to
Za’un, there had been problems with racism by store employees in the past. Defendant
and Za’un ultimately left the store and went back to their mother’s house where they
stayed the remainder of the day.
III. Verdict and Sentencing
The jury was unable to reach a verdict on counts 2 and 3, and a mistrial was
declared as to those counts. The jury returned a guilty verdict on count 1 for making
criminal threats against Becki in violation of section 422 and a guilty verdict on count 4
for misdemeanor battery against Tamra in violation of section 243, subdivision (a). In a
7.
bifurcated proceeding, the trial court determined defendant’s prior conviction under
section 243, subdivision (d), was a strike within the meaning of the Three Strikes law.
At sentencing, defendant made a motion for the court to reduce the conviction
under section 422 to a misdemeanor, which the court declined to do. Defendant was
sentenced to the midterm of two years (§§ 422, subd. (a), 18, subd. (a)) doubled to four
years for the strike prior (§ 667, subd. (e)(1)), and the court imposed a one-year jail
sentence on count 4 to be served concurrently with the sentence imposed on count 1.
This appeal followed.
DISCUSSION
I. Admission of Witnesses’ Out-of-court Statements
Defendant argues the two responding deputies were erroneously permitted to
testify about what Becki, Tamra, Sandra and Brittany told them had happened at the
store. Defendant maintains these out-of-court statements repeated by the deputies at trial
constituted inadmissible hearsay, which violated state law and, beyond that, rendered the
trial fundamentally unfair such that it constituted a federal due process error. Defendant
contends no error of state law can be deemed harmless under People v. Watson (1956) 46
Cal.2d 818 (Watson) nor can any federal constitutional error be deemed harmless under
Chapman v. California (1967) 386 U.S. 18, 24 (Chapman). Finally, defendant argues the
out-of-court statements were irrelevant, and to the extent defendant’s counsel forfeited
the argument on appeal by failing to make an objection on that ground, the omission was
ineffective assistance of counsel.
The People do not claim the statements were admissible, but maintain the officers’
testimony about what the witnesses told them was cumulative of the witnesses’ live
testimony in court and, thus, no prejudice accrued. Further, the People argue, because
admission of these out-of-court statements was harmless, defense counsel’s failure to
object as to relevance was likewise harmless and does not constitute ineffective
assistance of counsel.
8.
A. Background
Over a hearsay objection by defense counsel, Deputy Rickard testified what Becki
told him when he questioned her after the incident.
“[Prosecutor:] Did you then talk to [Becki] to find out what was
going on?
“[Rickard:] Yes.
“[Prosecutor:] Briefly, what did [Becki] tell you?
“[Rickard:] She told me a male that was later identified as
[defendant] came into the store.
“[Defense Counsel]: Objection. Hearsay.
“THE COURT: It appears to be hearsay.
“[Prosecutor]: It’s for the state of mind and for his follow-up
investigation.
“[Defense Counsel]: Can the Court admonish the jury this is not
admitted for the truth[?]
“THE COURT: That’s what I was going to do. [¶] Ladies and
gentlemen, there’s an exception to the hearsay rule. Hearsay basically is
this: Any out-of-court statement being offered for the truth. In this case, it
will be the statement that this witness would make as to what [Becki] said
but that is not being offered for the truth. [¶] It’s not being offered to
prove the truth of those statements, just simply as to the effects those
statements had on this officer and what he did after those statements were
made to him. So you’re not to consider those statements for the truth of the
matter asserted. [¶] You may proceed.
“[Prosecutor]: [¶] … She told you a gentleman came into the store?
“[Rickard:] Yes.
“[Prosecutor:] What else?
“[Rickard]: She said that the gentleman was not allowed in the store
because he’s previously stolen. She told him to leave.
“[Defense Counsel]: Same objection.
9.
“THE COURT: That the admonishment I gave you previously
applies to the same—that any of the statements the officer is making
regarding [Becki].
“[Prosecutor:] [¶] … You may continue.
“[Rickard:] After she had told the subject to leave, he started acting
crazy and yelling at her. She said she became frightened for herself and
went behind the counter to give herself a small barrier between herself and
the subject.
“[Prosecutor:] Why did she tell you she was frightened?
“[Rickard:] Why?
“[Prosecutor:] Yes.
“[Rickard:] I believe because he was acting erratic and yelling and
later made a statement he would kill her and come back with a gun.
“[Prosecutor:] As she was telling you this, what was her reaction as
she’s telling you what she’s experienced?
“[Rickard:] She was scared. Her hands were shaky. She was
having a difficult time talking about the incident. [¶] … [¶]
“[Prosecutor:] Did she tell you who the person was that came into
the store? Yes or no?
“[Rickard:] No, I don’t believe she’s the one that told me.
“[Prosecutor:] So she tells you the person comes in and there’s
some commotion. What did she tell you they did after the person left the
store?
“[Rickard:] She said she was in fear for her life and the customers
inside the store so she locked the doors to the business and waited for law
enforcement to arrive.”
Rickard also testified about what Sandra told him during questioning. Overruling
the same hearsay objection, the court again instructed the jury that any statements made
by Sandra to Rickard were offered as an exception to the hearsay rule and instructed the
10.
jury to consider Sandra’s statements only for the effect it had on the deputy.3 Rickard
testified Sandra told him she had heard Becki tell the suspect to leave the store and then
the suspect began “flipping out” and yelling. Sandra told Rickard she had called 911 and
she had been so scared she could hardly move.
Deputy Perry testified about what Tamra told him about the incident. Again,
overruling a hearsay objection, the court instructed the jury any statements made by
Tamra to the deputy were offered as an exception to the hearsay rule, so the statements
were not to be considered for the truth but for the deputy’s state of mind and what he did.
Perry testified Tamra had been a customer in the store at the time of the altercation. She
told him a Black male had an argument with the store manager (Becki), chased Becki in
the store, and Tamra attempted to get between the two. Tamra was then hit or bumped by
the male and she attempted to get away from him. She heard him say he was going to kill
the manager and return to the store and “shoot up the front” of the store. She told Perry
she then saw another Black male come into the store and attempt to restrain the first man.
The first male continued to pursue the manager and yell that he would return. Tamra told
Perry her hip was sore from getting hit.
Perry also interviewed Brittany that day and testified about what she told him.
Defense counsel again interposed a hearsay objection, and the court instructed the jury
that Brittany’s statements to Perry could be considered only to show what Perry did as a
result of those statements, not for the truth of the matter stated. Perry testified Brittany
told him a Black male had charged the store manager before Tamra stepped in to help,
and the man pushed or struck Tamra while trying to get to Becki. Brittany told Perry the
man threatened to kill the store manager.
3 The prosecutor argued the statements were admissible as out-of-court statements not
offered for the truth of the matter stated but for the state of the deputy’s mind as relevant to his
follow-up investigation.
11.
B. Analysis
Under the hearsay rule, an out-of-court statement is generally inadmissible when
the statement “is offered to prove the truth of the matter stated.” (Evid. Code, § 1200,
subds. (a) & (b).) The hearsay rule does not preclude admission of statements that are not
offered for their truth, such as when offered for the nonhearsay purpose of the effect on
the person who heard the statement. (People v. Montes (2014) 58 Cal.4th 809, 863.) The
trial court admitted the witnesses’ out-of-court statements for their effect on the listener
(the deputies). We dispense with an analysis of whether that ruling was an abuse of
discretion because, even assuming it was, the assumed error was not one of constitutional
dimension and any error of state law was harmless.
1. No Error of Constitutional Magnitude
Assuming the out-of-court statements were admitted in error, the trial was not
rendered fundamentally unfair as a result and no due process violation occurred. (See
Estelle v. McGuire (1991) 502 U.S. 62, 70; People v. Partida (2005) 37 Cal.4th 428, 439
[“[T]he admission of evidence, even if erroneous under state law, results in a due process
violation only if it makes the trial fundamentally unfair.”].) The out-of-court statements
were cumulative of the evidence properly before the jury. The witnesses’ statements the
deputies relayed to the jury did not differ from the live testimony those same witnesses
gave at trial, and their testimony was subject to cross-examination.
Defendant argues it was inherently prejudicial for those statements to be repeated
by law enforcement officers whose testimony is more likely to be credited by the jury.
However, the court instructed the jury that all the witness statements relayed by Perry and
Rickard were not to be assessed or accepted for truth and could be considered only for the
impact they had on the subsequent conduct of the officer. We presume the jury followed
the court’s instructions, even to the extent the effect of the statements on Perry’s and
Rickard’s investigation was ultimately not relevant. (People v. Covarrubias (2016) 1
Cal. 5th 838, 887.)
12.
Beyond that, this was not a case with only a single, interested witness and no
corroborating evidence—the case did not rise and fall on the shoulders of one witness’s
credibility. The four percipient witnesses testified very consistently about what
defendant said and did at the store that day. There was video, although no audio, of a
portion of the events that could be reasonably interpreted as corroborative of the
witnesses’ testimony in salient respects. The jury also knew the witnesses’ out-of-court
statements were not the deputies’ observations of what happened, nor did the deputies
impermissibly vouch for the credibility of the witnesses’ statements. In fact, on cross-
examination Perry conceded that witnesses sometimes embellish their stories when
reporting events to law enforcement. Moreover, none of the out-of-court statements were
emphasized or even mentioned during the prosecution’s closing arguments.
Defendant argues the officers’ testimony unfairly prejudiced the jury against him
because they repeated inflammatory statements that defendant threatened to kill the store
manager and return to shoot up the front of the store, and that a witness was in fear for
her life. Defendant contends it was likely the jurors unfairly placed significant weight on
these statements just because they were repeated by law enforcement.
The out-of-court statements were not worded in materially different ways than
those used by the witnesses themselves on the stand. In fact, the out-of-court statements
were worded almost exactly the same as the witnesses’ trial testimony. On the stand,
Sandra characterized defendant as becoming “irate” and “throwing his hands around
getting louder and louder” when Becki told him to leave; Becki, Tamra and Brittany all
described defendant as “yelling” at Becki; and Becki, Tamra and Brittany uniformly
testified defendant threatened to come back and “shoot up the store,” while Sandra
testified he threatened to “come back and shoot.” Brittany testified defendant threatened
to “kill” Becki, and she confirmed on cross-examination that she had told deputies that he
had done so; Becki too described defendant as saying he was going to “kill” her and that
she was terrified he was going to come back with a gun. The out-of-court statements
13.
used words similar if not identical to the witnesses’ trial testimony and did not expand
beyond the witnesses’ trial testimony or provide any different or additional information
critical to proving the charges.
In sum, the jury was instructed not to accept the deputies’ testimony about
witnesses’ statements for their truth, and we presume the jury followed that instruction.
The witnesses themselves testified using almost the same words and expressions as the
out-of-court statements, and the out-of-court statements did not relay additional or
different information from the witnesses’ trial testimony about what happened. We are
unconvinced the admission of this evidence rendered defendant’s trial fundamentally
unfair. Any error was one of state law only.
2. Any Error of State Law Was Harmless
The prejudicial effect of an error of state law is assessed under the standard
articulated in Watson. (People v. Duarte (2000) 24 Cal.4th 603, 618–619.) Under that
standard, reversal is not warranted unless “it is reasonably probable that a result more
favorable to [defendant] would have been reached in the absence of the error.” (Watson,
supra, 46 Cal.2d at p. 836.)
For many of the same reasons the error was not of constitutional magnitude, there
is no reasonable probability the verdict would have been more favorable to defendant
absent admission of the out-of-court statements. The jury was instructed not to consider
the statements for their truth; the witnesses’ trial testimony matched the out-of-court
statements almost verbatim; and the out-of-court statements did not relay any additional
evidence necessary to prove the charges nor did they provide a critical or missing
evidentiary link or supply the sole basis to draw a necessary inference on any of the
counts. And, the witnesses’ out-of-court statements were not emphasized or even
mentioned to the jury in the prosecution’s closing arguments.
Moreover, the witnesses testified very consistently about what defendant said and
did during the incident. There was admitted surveillance video, which is discussed post,
14.
the jury could reasonably interpret as supporting and corroborating the witnesses’
versions of events in salient respects. The evidence against defendant on counts 1 and 4
was strong. The only evidence defendant never made any threats or bumped or pushed
Tamra was provided by Za’un, who was not in the store for the entire confrontation. Any
possible credibility enhancing effect from the deputies’ relaying the out-of-court
statements was negligible under these circumstances. Even when confessions are
involved, “‘if the properly admitted evidence is overwhelming and the … extrajudicial
statement is merely cumulative of other direct evidence, the error will be deemed
harmless.’” (People v. Houston (2005) 130 Cal.App.4th 279, 296 [assessing harm
resulting from error under the stricter Chapman standard].)
Defendant argues the jury’s inability to reach a verdict on counts 2 and 3 suggests
a close case and shows it was reasonably probable defendant would have obtained a
better outcome on counts 1 and 4 absent those out-of-court witness statements.
Counts 2 and 3 alleged defendant made criminal threats under section 422 against
Sandra and Tamra, respectively. The jury was instructed pursuant to CALCRIM
No. 1300 regarding a violation of section 422. This instruction required them to
determine, among other elements, whether defendant “willfully threatened to unlawfully
kill or unlawfully cause [GBI] to” Sandra and Tamra in counts 2 and 3, respectively.
Even if the jury credited the witnesses entirely, there was no testimony defendant
specifically directed his threats at Sandra or Tamra, even though his threat to come back
with a gun and shoot up the store could have been interpreted as such. This could very
well have been the issue on which the jury hung, which a jury question during
deliberation suggests.4 But whether it was or not, the jury’s deadlock on counts 2 and 3
4 During deliberations, the jury sent the court a note that stated, “‘Speak to the judge [to]
explain criminal threat on count of certain criteria. Need to explain in detail, specifically how
number one and number six relates to Counts 2 and 3.’” When the court assembled the jury to
respond to the question, the jury foreman indicated there were “six things [the jury] have to agree
on and it’s a fraction of us saying number one is not valid and others saying well, that doesn’t
15.
did not necessarily relate to any witness credibility issue that would have applied across
all of the counts. In other words, even in the absence of the witnesses’ out-of-court
statements, the jury’s deadlock on counts 2 and 3 could have occurred anyway. This
deadlock does not necessarily bear on whether the verdict on count 1 (criminal threats
against Becki) and count 4 (misdemeanor battery against Tamra) was a close call or
whether defendant could have achieved a better outcome on those counts in the absence
of the out-of-court statements.
For these reasons, we conclude the admission of the witnesses’ out-of-court
statements was harmless. Moreover, because the admission of this testimony was not
prejudicial, any failure by defendant’s trial counsel to object to the relevance of the out-
of-court statements cannot establish ineffective assistance. (Strickland v. Washington
(1984) 466 U.S. 668, 694 [to show ineffective assistance of counsel, the defendant “must
show that there is a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different”].)
II. Admission of Cell Phone Recording of Surveillance Video
Defendant maintains the trial court erroneously admitted Becki’s cell phone
recording of the store surveillance video from the date of the incident. Defendant
contends that because the cell phone-recorded video segment was taken by an interested
witness and did not include all footage of the time defendant was inside the store, it was
incomplete and inadmissible under the fairness principles embodied by Evidence Code
section 356. Moreover, because the cell phone-recorded video only captured a segment
of the incident and took an excessive amount of time to authenticate, defendant contends
it was unduly prejudicial under Evidence Code section 352.
matter. Number six is more important than number one.” The court instructed the jury that they
needed to decide whether all the elements they were instructed on under CALCRIM No. 1300
were proven beyond a reasonable doubt. The court then gave the CALCRIM No. 1300
instruction to the jury again.
16.
The People maintain that because Becki was thoroughly cross-examined by
defense counsel regarding her recording of the video, the requirements of Evidence Code
section 356 were satisfied. As to Evidence Code section 352, the People maintain the
video was highly probative of defendant’s conduct, and there was nothing inflammatory
or otherwise unduly prejudicial about it.
A. Background
A few days before trial, Becki was able to record a portion of the store’s July 4,
2018, surveillance video from her cell phone, which she delivered to the prosecutor. The
video is approximately two minutes in length. It appears to be video of a computer
screen with nine separate camera angles, four of which show nothing. Defendant
objected to its admission at trial and an Evidence Code section 402 hearing was held.
At the Evidence Code section 402 hearing, Becki testified the store had
surveillance footage of the incident that she showed to the investigating deputies who
were dispatched to the scene that day. The video she showed the deputies did not have
audio. Becki was unable to provide the deputies with a copy of the video that day in the
absence of the store’s main manager.
Becki ultimately used her cell phone to record the surveillance video while it
played on the store’s computer screen. She attempted to email a copy of her cell phone
recording to Deputy Perry, but she was unsuccessful in sending it. She then had a friend
help her transfer the video to a portable storage device, which she gave to the prosecutor.
Her cell phone recording did not alter or delete anything from the original
surveillance video. The picture from the cellphone recording has some movement
because the phone was hand-held during the recording; any audio present on the cell
phone recording was picked up by the cell phone, not audio from the original surveillance
video.
Deputy Perry testified when he investigated the incident on July 4, 2018, at the
store, he asked Becki whether the store had surveillance video. Becki showed Perry the
17.
video from the store’s system, which had visual images but no audio. Perry was unable
to obtain a copy of the video, but he detailed what he observed in his report. Upon
viewing the cell phone recording at the hearing, Perry testified it accurately depicted what
he had viewed that day at the store.
The trial court ruled the video was relevant and there had been a sufficient
foundation laid by Perry and Becki. The court also ruled the issue of how clear the video
was or whether Becki had an ulterior motive for recording only a portion of the
surveillance video was an issue of weight for the jury to address. As to undue prejudice,
the court determined the video was probative and it would not present an undue burden or
consumption of time, even if they had to present the video to the jury frame by frame.
At trial, Becki explained in more detail that she had called her store manager on
the day of the incident to obtain a copy of the surveillance video, but she was unable to
take directions from her manager over the phone to do so. Becki decided to wait until her
store manager could come to the store and make a copy. Becki tried to create a CD copy
of the video surveillance, but could not do so. A day or two after the event, Becki
decided to record the surveillance video from her phone while it played on the computer
at the store.
A week or so before trial, the deputies returned to the store to obtain a copy of the
surveillance footage, but Becki was not at work and the assistant manager on duty that
day could not get the store’s surveillance video to go back far enough in its footage to
make a copy for them. Becki attempted to email her cell phone recording to one of the
deputies, but it was returned to her with a message it was sent to an invalid email address.
A friend helped Becki transfer the cell phone recording to a portable storage device,
which she gave to the prosecutor a few days before trial.
B. Evidence Code Section 356
Pursuant to Evidence Code section 356, “[w]here part of an act, declaration,
conversation, or writing is given in evidence by one party, the whole on the same subject
18.
may be inquired into by an adverse party; when a letter is read, the answer may be given;
and when a detached act, declaration, conversation, or writing is given in evidence, any
other act, declaration, conversation, or writing which is necessary to make it understood
may also be given in evidence.”
This statute codifies the common law doctrine of completeness. The purpose of
the rule “is to prevent the use of selected aspects of a conversation, act, declaration, or
writing, so as to create a misleading impression on the subjects addressed. [Citation.]
Thus, if a party’s oral admissions have been introduced in evidence, he [or she] may
show other portions of the same interview or conversation, even if they are self-serving,
which ‘have some bearing upon, or connection with, the admission … in evidence.’”
(People v. Arias (1996) 13 Cal.4th 92, 156; accord People v. Westerfield (2019) 6 Cal.5th
632, 696.)
We review the trial court’s determination of whether or not to admit evidence
under this provision for abuse of discretion. (See People v. Pride (1992) 3 Cal.4th 195,
235.) A reviewing court may not disturb a trial court’s exercise of discretion in admitting
or excluding evidence unless the appellant shows the court “exercised its discretion in an
arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of
justice [citation].” (People v. Rodriguez (1999) 20 Cal.4th 1, 9–10.)
We have been presented with no authority Evidence Code section 356 operates to
exclude properly authenticated video evidence simply because it captures only a segment
of an event or interaction. The rule operates to allow a party to introduce additional
evidence, even hearsay, to provide context for a selected aspect of other admitted
evidence. Here, the cell phone recording was authenticated by witnesses Becki and
Perry, and any disputed factual issues regarding authentication were for the jury to
resolve. As the People note, Becki was available for cross-examination regarding what
occurred before the recorded segment that was shown and she was subject to cross-
19.
examination on how she recorded the video and why she did not produce it to the
prosecution until a few days before trial.
Defendant suggests events not captured by Becki’s cell phone recording might
give more context and explain why defendant was so agitated—i.e., that he was verbally
provoked. Defendant maintains the segment Becki recorded may have given the jury a
misleading impression about what occurred because they did not see the full video
captured by the surveillance system. But this is only speculation because defendant
offers no evidence such provocation occurred prior to the time Becki started recording
from the surveillance video. Defendant notes he told the interviewing probation officer
before sentencing that he was struck by one of the witnesses, but that was not trial
evidence. Defendant points to the fact Za’un testified some of the women directed racial
epithets at defendant, but there was no indication this occurred before the cell phone-
recorded segment because Za’un was not in the store at that time. Additionally, the
store’s surveillance video had no audio so what was said to defendant prior to the start of
the video segment would not be included in any event. It is speculative to assert the
segment of the store surveillance video recorded by Becki may have been misleading.
Defendant also asserts there were multiple angles available on the original store
surveillance system, but Becki failed to include those portions in her cell phone
recording. Our review of the record reflects no testimony that certain camera angles were
excluded by Becki. The video recorded from the store’s computer simultaneously shows
nine different camera angles in nine separate squares on the screen. Only six of those
squares contain images, and only four of those six squares capture portions of the store
where the incident occurred.5 Becki testified the cameras in the store are motion
5 Three of the squares labeled “MGR,” “STOCK,” and “EXTERIOR” were blank screens
with no images. Two of the squares stated “NO RECORD” and the images in those squares
were static (these were labeled “HBA” for Health and Beauty Aisle and “LAUNDRY.” The
first, far left corner square captures what appears to be an entrance/exit to the store from inside
the store facing out; the next square to the right is labeled “REG # 1” and appears to capture a
20.
activated, so there was no recorded footage from the manager’s office and the stockroom
cameras.
The crux of the issue is that Becki’s cell phone recording did not capture all of
defendant’s time in the store—i.e., Becki did not start recording early enough in the
surveillance footage. However, the cell phone recording was relevant and authenticated.
We decline to construe Evidence Code section 356 to exclude a relevant and
authenticated video because a more complete video was unavailable at the time
admission of the cell phone recording was sought. There was no error in admitting the
video under Evidence Code section 356.
C. Evidence Code Section 352
Defendant also argues the cell phone recoding of the surveillance video was
unduly prejudicial because it was entirely redundant of the witnesses’ trial testimony, it
painted an inadequate and biased picture for the jury, and it took an undue amount of
time in the trial to discuss aspects of its authenticity such as why it did not record all of
the available footage from the surveillance recording and why it was produced just days
before trial.
Evidence is relevant if it has any tendency in reason to prove or disprove any
disputed fact of consequence to the determination of an action. (Evid. Code, § 210.) But
relevant evidence should be excluded if the trial court, in its discretion, determines that its
probative value is substantially outweighed by the probability that its admission will
either be unduly time consuming or create a substantial danger of undue prejudice,
confusion of the issues, or mislead the jury. (Evid. Code, § 352.) Unduly prejudicial
evidence in this context is that which evokes an emotional bias against the defendant
checkout register; the third square on the top, right corner is labeled “REG #2” and appears to
capture the second checkout register. Finally, just below the top, right corner square image is an
image labeled “EXIT,” which appears to face into the store from the exit/entrance. Becki
described these views during her cross-examination.
21.
without regard to its relevance to material issues. (People v. Kipp (2001) 26 Cal.4th
1100, 1121.) A court’s ruling under Evidence Code section 352 is reviewed for abuse of
discretion. (People v. Kipp, supra, at p. 1121.)
The video evidence was relevant to corroborating aspects of the witnesses’
testimony that defendant became angry in the store and an altercation occurred where his
brother had to physically pull him out of the store. The video showed how Za’un pulled
defendant out of the store, the length of time that took, and the degree of defendant’s
struggle against his brother to remain in the store. These aspects of the video provide a
reasonable basis to draw inferences regarding the degree of agitation defendant exhibited
and corroborate and support the witnesses’ testimony. The video was highly relevant to
those issues.
As to prejudice, “[t]he prejudice that [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.” [Citations]. “Rather, the statute uses the word in its
etymological sense of ‘prejudging’ a person or cause on the basis of extraneous factors.
[Citation.]” [Citation.]’ [Citation.] In other words, evidence should be excluded as
unduly prejudicial when it is of such nature as to inflame the emotions of the jury,
motivating them to use the information, not to logically evaluate the point upon which it
is relevant, but to reward or punish one side because of the jurors’ emotional reaction. In
such a circumstance, the evidence is unduly prejudicial because of the substantial
likelihood the jury will use it for an illegitimate purpose.” (Vorse v. Sarasy (1997) 53
Cal.App.4th 998, 1009.)
Although the video was damaging to defendant’s case in that it corroborated much
of the witnesses’ versions of events, it was not unduly prejudicial in the sense used by
Evidence Code section 352. The video did not contain content that would have
encouraged a purely emotional reaction from the jury unrelated to a logical evaluation of
the evidence and its relevance. Defendant makes much of the fact the cell phone
22.
recording was a “personal edited video” by an interested party, but that relates to
authentication, not whether it was unduly prejudicial. Any conflicting inferences that
could be drawn about authenticity go to the weight of the evidence and was an issue for
the jury. (People v. Goldsmith (2014) 59 Cal.4th 258, 267.)
Defendant argues authentication of the video was time consuming at trial because
of how it was obtained. While threshold authentication of the cell phone recording did
require a separate Evidence Code section 402 hearing, and its circumstances presented
factual issues that had to be covered during trial testimony, the trial was not unusually
lengthy as a result nor does the transcript reflect an inordinate amount of testimony or
time dedicated to the video’s authenticity.
The cell phone recording of the surveillance video was relevant evidence to
corroborate salient aspects of the witnesses’ testimony—it was not unnecessarily
cumulative. Any video that captures an event about which a witness testifies is going to
be cumulative to some degree. Here, four witnesses saw events from different angles, in
separate locations within the store or near the door, and they took different actions—their
testimony was not repetitive or cumulative for that reason nor was the video, as it helped
to corroborate portions of their individual accounts. In short, the video was not unduly
prejudicial under Evidence Code section 352.
III. No Abuse of Discretion in Sentencing Section 422 Conviction as a Felony
Defendant argues the trial court erred in denying his motion to reduce his
conviction under section 422 to a misdemeanor. Defendant maintains the court gave no
rationale for denying the request, and there was an inadequate basis to sentence the crime
as a felony. The People maintain the trial court acted within its discretion in denying the
motion based on the facts of the crime presented at trial, and defendant had already
suffered a prior conviction for making criminal threats that had been sentenced as a
misdemeanor.
23.
A. Trial Court’s Discretion Under Section 17, Subdivision (b)
A “wobbler” is an offense that, in the trial court’s discretion, may be punished as
either a felony or a misdemeanor. (§ 17, subd. (b) (section 17(b) or § 17(b)); People v.
Superior Court (Alvarez) (1997) 14 Cal.4th 968, 974 (Alvarez).) Defendant’s conviction
under section 422 was a wobbler because it was subject to punishment in either the
county jail not to exceed one year, or by imprisonment in the state prison. (§§ 422,
subd. (a), 17, subds. (a) & (b).)
The trial court has sole discretion to treat a wobbler as a felony or misdemeanor
for sentencing purposes. (Alvarez, supra, 14 Cal.4th at p. 977.) “By its terms,
[section 17(b)] sets a broad generic standard.” (Ibid.) “[S]ince all discretionary authority
is contextual, those factors that direct similar sentencing decisions are relevant, including
‘the nature and circumstances of the offense, the defendant’s appreciation of and attitude
toward the offense, or his traits of character as evidenced by his behavior and demeanor
at the trial.’ [Citations.] When appropriate, judges should also consider the general
objectives of sentencing such as those set forth in California Rules of Court,
rule [4.410].” (Id. at p. 978, fn. omitted.) “As a general matter, the court’s exercise of
discretion under section 17(b) contemplates the imposition of misdemeanor punishment
for a wobbler ‘in those cases in which the rehabilitation of the convicted defendant either
does not require, or would be adversely affected by, [felony punishment].’” (People v.
Park (2013) 56 Cal.4th 782, 790.)
One of the purposes of granting the trial court sentencing discretion under
section 17(b) is to allow the sentencing court “greater flexibility in tailoring the
punishment to fit the crime and the offender, recognizing the same crime can deserve
different types of punishment depending on the seriousness of the circumstances of its
commission.” (People v. Tran (2015) 242 Cal.App.4th 877, 887.) As each case is
distinct, the court has discretion to impose a sentence that is appropriate in light of all the
relevant circumstances. (People v. Gutierrez (2014) 58 Cal.4th 1354, 1393.)
24.
To establish an abuse of discretion, “‘[t]he burden is on the party attacking the
sentence to clearly show that the sentencing decision was irrational or arbitrary.
[Citation.] In the absence of such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary determination to impose a
particular sentence will not be set aside on review.’” (Alvarez, supra, 14 Cal.4th at
pp. 977–978.)
B. Analysis
In denying defendant’s motion to reduce his section 422 conviction to a
misdemeanor, the court stated it “was present for the trial and has considered the
evidence that the jury did review in terms of coming back to a guilty of [section] 422. At
this time[,] the Court is not going to reduce this to a misdemeanor.”
Defendant claims this provided no rationale to deny the motion, and it was unclear
if the court had a specific reason. According to defendant, the current offense under
section 422 was “not particularly egregious,” the evidence indicated he was provoked
possibly by racial slurs and other aggressive language, and he did not physically harm
anyone and left the store willingly. Deputies did not show up until at least an hour after
they were dispatched, which reflected the nonseriousness of the offense. Further,
according to defendant, his prior history is not particularly egregious in that he had only
three prior offenses on his record and two of them were misdemeanors.
Contrary to defendant’s argument, the court stated it refused to reduce the
section 422 conviction to a misdemeanor because of the facts presented to the jury about
the offense. That is an articulation of rationale and is based on a relevant consideration.
Defendant’s remaining arguments present only a different way to balance or consider the
facts relevant to the offense and defendant’s prior criminal history. But this does not
establish the court did not understand the scope of its discretion or relied on incorrect
facts or law in reaching its decision. (Alvarez, supra, 14 Cal.4th at p. 978, quoting
People v. Preyer (1985) 164 Cal.App.3d 568, 573 [“‘[A] decision will not be reversed
25.
merely because reasonable people might disagree. “An appellate tribunal is neither
authorized nor warranted in substituting its judgment for the judgment of the trial judge.”
[Citations.]’”].)
Based on the trial evidence, there were facts to support a conclusion defendant
started to argue with Becki, and that he threatened to come back with a gun to kill her and
“shoot up” the store. There was testimony he attempted to strike Becki and made
physical contact with Tamra in trying to do so. And, there was testimony and video
showing he had to be dragged out of the store by his brother. Sandra, the cashier, was
frightened enough to call 911. Becki, Sandra, Tamra and Brittany all testified they were
so frightened by defendant’s conduct and threats they locked themselves in the store until
deputies arrived. These were legitimate facts the court was entitled to weigh in
determining not to reduce the current conviction to a misdemeanor. (Alvarez, supra, 14
Cal.4th at p. 978 [nature and circumstances of the offense is a discretionary factor to
consider].) No abuse of discretion can be shown by arguing the facts could have been
weighed or evaluated differently. The trial court did not err in refusing to reduce
defendant’s section 422 conviction to a misdemeanor.
IV. Jury Trial Waiver on the Fact of the Prior Conviction
Defendant makes two arguments in his opening and supplemental briefs: (1) that
he had a constitutional right to a jury on every issue related to his prior conviction, which
he did not personally, knowingly and voluntarily waive—i.e., the waiver obtained was
invalid; and (2) the evidence was insubstantial to support the trial court’s finding his prior
conviction constituted a strike within the meaning of the Three Strikes law.
The People maintain there is no constitutional right to a jury trial on the fact of a
prior conviction; any right to a jury on the prior conviction determination here was purely
one of statute under section 1025. Thus, when defendant failed to object to the trial
court’s discharge of the jury and his counsel waived trial by jury on the prior conviction
on defendant’s behalf, any argument as to the validity of that waiver was forfeited.
26.
Moreover, the People argue, because the right to a jury trial was statutory, the waiver did
not need to be express or personal, it could be validly waived by defendant’s counsel.
The People do not address the substantiality of the evidence to support the trial court’s
finding the prior conviction constituted a strike.
A. Background
Prior to trial, defendant’s counsel sought to bifurcate the issue of defendant’s
alleged prior strike. The trial court inquired with defense counsel whether a jury trial on
the truth of that prior strike was waived, and counsel responded affirmatively.
In ruling on the motions in limine, the issue of the prior strike was revisited. One
of the defense motions in limine sought to bifurcate the trial on the issue of the alleged
strike prior. The court ruled that it was granting the motion to bifurcate the issue of the
prior and asked defense counsel again whether a jury trial was being waived. Counsel
again responded in the affirmative, and the court ordered a bench trial on the issue of the
prior strike would commence after the jury rendered its verdict.
The court conducted a bench trial on the alleged strike prior on December 3, 2018,
after the jury had reached its verdict. The prosecution provided a copy of the following
documents.
• An April 17, 2009, felony complaint filed in Los Angeles Superior
Court, which alleged defendant and Za’un Jahi Sims committed
attempted second degree robbery under section 664/211, an assault
by means likely to produce GBI under section 245, former
subdivision (a)(1), and a battery with serious bodily injury under
section 243, subdivision (d);
• A court order holding defendant to answer, dated April 29, 2009;
• A Los Angeles Superior Court document indicating the abstract of
judgment in the 2009 case did not exist because defendant was
placed on formal probation and a sentencing minute order of
September 22, 2009, had been provided;
27.
• Minute orders from the Los Angeles Superior Court for defendant’s
2009 Los Angeles Superior Court case No. BA355402, including the
sentencing minute order dated September 22, 2009, showing
defendant pleaded no contest to count 3 for violation of section 243,
subdivision (d);
• Minute order from Los Angeles Superior Court showing defendant
violated probation in Los Angeles Superior Court case
No. BA355402 and was then sentenced; and
• California Law Enforcement Telecommunication System documents
showing defendant’s prior convictions.
The prosecutor argued the prior conviction under section 243, subdivision (d), in
September 2009 was a strike—i.e., a serious felony for purposes of section 667,
subdivision (e)(1). The documents were admitted with no objection.6
The court ruled that based on the exhibit, beyond a reasonable doubt, defendant is
the same person as charged and convicted in Los Angeles Superior Court case
No. BA355402, where he was a codefendant. The court also found beyond a reasonable
doubt that defendant was convicted of a violation of section 243, subdivision (d), which
the court determined was a strike.
B. Issue of Waiver of Jury Trial was Forfeited and Unmeritorious
Defendant’s argument about the invalidity of his waiver of a jury trial on the
alleged strike prior is multi-part. Defendant argues that under United States Supreme
Court precedent in Apprendi v. New Jersey (2000) 530 U.S. 466, 490 (Apprendi),
Descamps v. United States (2013) 570 U.S. 254, 269 (Descamps), and Mathis v. United
States (2016) ___ U.S.___ [136 S.Ct. 2243, *2252] (Mathis), along with our high court’s
6 The prosecutor also argued that on the “rap sheet,” it is noted defendant suffered another
conviction in June 22, 2011, for a violation of section 487, subdivision (a), and that the sentence
on that conviction was doubled. The prosecutor maintained that while the conviction itself did
not show it was a strike, based on the fact the sentence was doubled for that conviction, it reflects
a prior strike. Nevertheless, the court clarified the prior felony offense from September 22,
2009, under section 243, subdivision (d), was the prior conviction alleged to be a strike—not
some other prior conviction.
28.
decision in People v. Gallardo (2017) 4 Cal.5th 120, 135 (Gallardo), he has a federal
constitutional right to a jury trial on every aspect of determining whether a prior
conviction constitutes a strike pursuant to the Three Strikes law. Defendant argues the
California Supreme Court’s decision in People v. Epps (2001) 25 Cal.4th 19, 23 (Epps),
which fails to recognize the constitutional breadth of the right to a jury trial as to prior
convictions, has been effectively abrogated by Apprendi, Descamps, Mathis, and
Gallardo.
Defendant argues further that a federal constitutional jury trial right may be
waived only by defendant expressly and personally, not through his counsel, and there
must be sufficient evidence from the colloquy with the trial court and the record to
affirmatively show defendant knew and understood what waiving his right to a jury trial
on the prior strike really meant. Because defendant did not personally or expressly waive
his constitutional right to a jury trial on whether the prior conviction constituted a strike,
the waiver was invalid. Further, there was no showing defendant understood his rights or
waived them knowingly and intelligently because the trial court never explained to him
what the right to a jury meant or how it was different from a bench trial.
In 2017, our Supreme Court clarified in Gallardo that, based on the United States
Supreme Court decisions in Apprendi, Descamps, and Mathis, the trial court’s role in
determining whether a prior conviction constituted a serious felony or a strike was more
limited than California case law previously recognized. (See People v. McGee (2006) 38
Cal.4th 682, overruled by Gallardo, supra, 4 Cal.5th at pp. 134–136 [holding McGee no
longer “tenable” insofar as it authorized trial courts to make findings about the conduct
giving rise to a defendant’s prior conviction] (McGee).)
The court held “‘[t]he Sixth Amendment contemplates that a jury—not a
sentencing court—will find’ the facts giving rise to a conviction, when those facts lead to
the imposition of additional punishment under a recidivist sentencing scheme. [Citation.]
This means that a sentencing court may identify those facts it is ‘sure the jury … found’
29.
in rendering its guilty verdict, or those facts as to which the defendant waived the right of
jury trial in entering a guilty plea. [Citation.] But it may not ‘rely on its own finding’
about the defendant’s underlying conduct ‘to increase a defendant’s maximum sentence.’
[Citation.] [¶] We are persuaded that the approach sanctioned in McGee is no longer
tenable insofar as it authorizes trial courts to make findings about the conduct that
‘realistically’ gave rise to a defendant’s prior conviction. The trial court’s role is limited
to determining the facts that were necessarily found in the course of entering the
conviction. To do more is to engage in ‘judicial factfinding that goes far beyond the
recognition of a prior conviction.’” (Gallardo, supra, 4 Cal.5th at p. 134.)
As such, “a court considering whether to impose an increased sentence based on a
prior qualifying conviction may not determine the ‘nature or basis’ of the prior conviction
based on its independent conclusions about what facts or conduct ‘realistically’ supported
the conviction. (McGee, supra, 38 Cal.4th at p. 706.) That inquiry invades the jury’s
province by permitting the court to make disputed findings about ‘what a trial showed, or
a plea proceeding revealed, about the defendant’s underlying conduct.’ [Citation.] The
court’s role is, rather, limited to identifying those facts that were established by virtue of
the conviction itself—that is, facts the jury was necessarily required to find to render a
guilty verdict, or that the defendant admitted as the factual basis for a guilty plea.”
(Gallardo, supra, 4 Cal.5th at p. 136, fn. omitted.)
Nevertheless, Gallardo reiterated that a trial court may still properly determine
whether a defendant suffered a prior conviction without implicating the defendant’s
constitutional right to a jury. (Gallardo, supra, 4 Cal.5th at p. 138 [a defendant has no
absolute right to jury trial on the fact of a prior conviction].) Gallardo also reaffirmed
that “determinations about the nature of prior convictions are to be made by the court,
rather than a jury, based on the record of conviction.” (Ibid.)
As such, there is no federal or state constitutional right to a jury trial on the fact of
a prior conviction for purposes of recidivist sentence enhancements. Rather, the right to a
30.
jury trial as to the fact of a prior conviction is statutory only. (§ 1025, subds. (b) & (c);
Gallardo, supra, 4 Cal.5th at p. 125 [a defendant has a “statutory right to a jury trial on
‘the question of whether or not the defendant has suffered the prior conviction’—though
not ‘whether the defendant is the person who has suffered the prior conviction’”]; People
v. Mosby (2004) 33 Cal.4th 353, 360, citing Apprendi, supra, 530 U.S. at p. 490 & Epps,
supra, 25 Cal.4th at p. 23; see § 1158.) Gallardo fully considered Apprendi, Descamps,
and Mathis and nonetheless expressly reaffirmed the trial court may determine the fact of
a prior conviction without infringing on the defendant’s Sixth Amendment rights. We are
bound by Gallardo.7 The right to a jury on the fact of a prior conviction is statutory, not
constitutional.
Here, because there was no objection to discharging the jury and defendant’s trial
counsel expressly waived a jury trial as to the fact of the prior conviction, any issue
regarding the effectiveness of his waiver of the statutory right to a jury trial on the prior
conviction has been forfeited. (See People v. Grimes (2016) 1 Cal.5th 698, 737–738
[absent an objection to the discharge of the jury or commencement of court trial, a
defendant is precluded from asserting on appeal, a claim of ineffectual waiver of the
statutory right to jury trial on the fact of a prior conviction in connection with recidivist
enhancement allegations]; People v. Saunders (1993) 5 Cal.4th 580, 589–590; see also
People v. Vera (1997) 15 Cal.4th 269, 276 [“It is both unfair and inefficient to permit a
claim of error on appeal that, if timely brought to the attention of the trial court, could
have been easily corrected or avoided.”], overruled in part on other grounds by People v.
French (2008) 43 Cal.4th 36, 47, fn. 3.)
Moreover, because the right to a trial on the fact of the prior conviction is
statutory, defendant’s argument fails on the merits. “The requirement of an express
7 Defendant acknowledges in his reply brief that this court is bound by decisions of the
California Supreme Court and that this issue was “raised in the opening brief to preserve it for
review in a higher court .…”
31.
waiver applies to the constitutional right to a jury trial, but not to jury trial rights that are
established only by statute.” (People v. French, supra, 43 Cal.4th at p. 46.) The limited
statutory right to a jury on the fact of a prior conviction can be waived by a failure to
object, and, a fortiori, by counsel’s express waiver. The cases defendant cites regarding
the express, personal and knowing waiver of a jury trial relate to the constitutional right
to a jury trial on pending criminal charges. Those cases have no relevance to the
statutory right to a jury trial on the fact of a prior conviction. (People v. Saunders, supra,
5 Cal.4th at p. 589, fn. 5; People v. French, supra, at p. 46; People v. Thomas (2001) 91
Cal.App.4th 212, 223.)8
V. No Substantial Evidence to Support Prior Strike Finding
Defendant argues in his supplemental brief there was no substantial evidence to
support the trial court’s conclusion the prior conviction under section 243,
subdivision (d), constituted a strike within the meaning of section 1192.7,
subdivision (c)(8). The People do not address this issue.9
“The People must prove all elements of an alleged sentence enhancement beyond
a reasonable doubt.” (People v. Miles (2008) 43 Cal.4th 1074, 1082.) “On review, we
examine the record in the light most favorable to the judgment to ascertain whether it is
supported by substantial evidence. In other words, we determine whether a rational trier
of fact could have found that the prosecution sustained its burden of proving the elements
of the sentence enhancement beyond a reasonable doubt.” (Id. at p. 1083.)
Battery under section 243, subdivision (d), is committed when “serious bodily
injury is inflicted” on the victim. To prove this conviction under section 243,
8 Defendant makes no claim here, nor did he object below, that the trial court engaged in
impermissible factfinding with respect to his conduct that formed the basis of his prior
conviction.
9 When defendant’s request to file a supplemental brief was granted, we ordered
respondent to address any response to the supplemental brief in the People’s main responsive
brief.
32.
subdivision (d), constituted a strike prior, the prosecutor submitted the original felony
complaint, which charged defendant and a codefendant with battery causing serious
bodily injury (§ 243, subd. (d)). There was also an enhancement allegation defendant and
his codefendant personally inflicted GBI on the victim under section 12022.7,
subdivision (a). Minute orders from that court indicate defendant was held to answer on
this and other charges after a preliminary hearing, and later defendant entered a no
contest plea to the section 243, subdivision (d), battery charge. The sentencing minute
order indicates a judgment of conviction was entered for violation of section 243,
subdivision (d), but nothing is indicated regarding the GBI enhancement under
section 12022.7, subdivision (a).
Battery with serious bodily injury under section 243, subdivision (d), is not
expressly listed as a serious felony under section 1192.7, subdivision (c), or a violent
felony under 667.5, subdivision (c). The offense is a serious felony, and thus a strike
prior under section 667, subdivisions (d)(1) and (e)(1), when a defendant personally,
rather than aiding and abetting another, inflicts GBI on the victim who was not an
accomplice. (§ 1192.7, subd. (c)(8); People v. Cole (1982) 31 Cal.3d 568, 572; People v.
Bueno (2006) 143 Cal.App.4th 1503, 1508 [the prosecution is required to prove that the
victim was not an accomplice and that the defendant personally inflicted the injury rather
than he aided and abetted another to establish § 243, subd. (d), violation is serious
felony].) “‘[S]erious bodily injury’” as used in section 243, subdivision (d), and “‘great
bodily injury,’” as used in section 12022.7, are essentially the same element. (People v.
Johnson (2016) 244 Cal.App.4th 384, 391.) Therefore, finding the prior conviction under
section 243, subdivision (d), was a strike hinged on whether defendant personally
inflicted serious bodily injury on the victim who was not an accomplice.
The sentencing court’s minute order indicates there was a factual basis for
defendant’s plea to a violation of section 243, subdivision (d), but nothing indicates what
the factual basis was or whether defendant made any admission as to those facts. Further,
33.
the record does not reflect defendant admitted or denied the GBI enhancement allegation.
(§ 969f, subd. (a) [“If the defendant pleads guilty of the offense charged, the question
whether or not the defendant committed a serious felony as alleged shall be separately
admitted or denied by the defendant.”].) As there was no mention of the GBI
enhancement at the time of sentencing, it was essen[tially] dismissed. (People v. Leslie
(1996) 47 Cal.App.4th 198, 204 [serious felony allegation “essentially dismissed” in the
earlier case where there was no admission or denial by the defendant regarding serious
felony allegation].)
The records admitted did not establish defendant personally inflicted serious
injury on the victim in violating section 243, subdivision (d): because defendant was
charged as a codefendant for this crime, it is possible he did not personally inflict serious
bodily injury on the victim. The matter shall be remanded for a retrial on the prior
conviction allegation, at the People’s election. (People v. Barragan (2004) 32 Cal.4th
236, 239, 241–242 [permitting retrial of strike allegation after appellate finding of
evidentiary insufficiency]; Monge v. California (1998) 524 U.S. 721, 728–279 [double
jeopardy clause does not bar retrial of prior conviction allegation after appellate finding
of evidentiary insufficiency].)
Pursuant to Gallardo, the scope of the trial court’s inquiry into whether
defendant’s conduct underlying the section 243, subdivision (d), conviction renders it a
serious felony is limited. (Gallardo, supra, 4 Cal.5th at p. 136, fn. omitted [trial court’s
role is limited to “identifying those facts that were established by virtue of the conviction
itself—that is, facts the jury was necessarily required to find … or that the defendant
admitted as the factual basis for a guilty plea”].) In the event the People forgo the
opportunity for a retrial regarding the strike allegation based on the 2009 prior conviction
for battery under section 243, subdivision (d), or the finding is not sustained upon retrial,
defendant is entitled to a new sentencing hearing because the record does not clearly
34.
indicate how the court would have sentenced defendant absent the strike, such as whether
the sentences imposed for counts 1 and 4 would have been concurrent or consecutive.
VI. Unauthorized Sentence on Count 4
The trial court sentenced defendant to one year in jail for the misdemeanor battery
conviction under section 243, subdivision (a). Defendant correctly asserts this sentence is
unauthorized because the statute permits a maximum sentence of only six months of
imprisonment in the county jail and/or a fine of no more than $2,000. (§ 243, subd. (a).)
It appears the trial court may have doubled the maximum term for the misdemeanor
battery based on defendant’s prior strike. However, prior strikes do not apply to double a
current misdemeanor conviction. (§§ 667, subd. (e)(1), 1170.12, subd. (c)(1)
[indeterminate term shall be twice the term otherwise provided as punishment “for the
current felony conviction”].) The sentence is unauthorized. At resentencing, the trial
court may not impose a total sentence of more than six months of jail time for the
conviction under section 243, subdivision (a).
VII. Remaining Arguments Under Dueñas
The trial court imposed a $300 restitution fine under section 1202.4,
subdivision (b)(1), and the court also imposed a corresponding parole revocation fine
(§ 1202.45) in the same amount, which was suspended, a $80 court operations assessment
(§ 1465.8, subd. (a)(1)), and a $60 criminal conviction assessment (Gov. Code, § 70373).
Relying on Dueñas, supra, 30 Cal.App.5th 1157, which was issued while this appeal was
pending, defendant contends his fees and fines should be stayed or stricken based on his
inability to pay.
Given the reversal of the trial court’s prior conviction finding and remand for
further proceedings that will require resentencing, we conclude it is unnecessary to reach
defendant’s Dueñas arguments; they are moot and we do not consider them.
35.
DISPOSITION
Defendant’s convictions on counts 1 and 4 are affirmed. We reverse the trial
court’s finding that defendant’s prior conviction under section 243, subdivision (d),
constituted a strike prior and we remand for retrial on that issue at the People’s election.
Regardless whether the matter of the strike prior is retried on remand, the sentence is
vacated and full resentencing is required. At resentencing, the trial court may not impose
more than six months of jail time for defendant’s conviction under section 243,
subdivision (a). In all other regards, the judgment is affirmed.
MEEHAN, J.
WE CONCUR:
HILL, P.J.
POOCHIGIAN, J.
36.