People v. Oliveros CA4/1 ( 2023 )

Filed 4/27/23 P. v. Oliveros CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D079873
Plaintiff and Respondent,
v. (Super. Ct. No. SCS315284)
EDUARDO HERNANDEZ OLIVEROS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Diego County,
Enrique Camarena, Judge. Affirmed.
Ava R. Stralla, 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,
Christine Y. Friedman, Warren J. Williams, and Eric A. Swenson, Deputy
Attorneys General, for Plaintiff and Respondent.
A jury found Eduardo Oliveros guilty of attempted murder (Pen. Code,1
§§ 664, subd. (a) & 187, subd. (a), count one), robbery (§ 211, count two), and
misdemeanor vandalism (§ 594, subds. (a) & (b)(2)(A), count three). The jury
further found that Oliveros inflicted great bodily injury (§ 12022.7, subd. (a))
and used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) in connection
with count one. Oliveros subsequently admitted allegations of a prior strike
conviction under the Three Strikes law. (§§ 1170.12, subds. (a)-(d) & 667,
subds. (b)-(i).) The trial court declined to strike the prior conviction and
deadly-weapon enhancement, but it dismissed the great-bodily-injury
enhancement and sentenced Oliveros to an aggregate determinate term of 17
years.
Oliveros contends on appeal that: (1) there was insufficient evidence to
prove that he was not acting in self-defense; (2) there was insufficient
evidence to prove that he intended to kill the victim, again because he was
acting in self-defense; (3) the trial court prejudicially erred by precluding the
defense from asking a law enforcement witness about his department’s ban
on carotid restraints; (4) the court prejudicially erred when it sustained a
defense objection to a prosecution witness’s comment and instructed the jury
to disregard it, but declined to admonish the jury that the witness’s comment
was “inappropriate”; (5) the cumulative effect of the court’s errors violated
Oliveros’s due process rights; (6) clerical errors in the sentencing minute
order and abstract of judgment need to be corrected; and (7) the trial court
should have applied section 1385, subdivision (c) (as revised by Senate Bill
1 Further statutory references are to the Penal Code unless otherwise
stated.
2
No. 81, Stats. 2021 ch. 721)2 in analyzing whether to dismiss Oliveros’s
strike conviction.
We conclude that substantial evidence supports the jury’s implicit
finding that Oliveros did not act in either perfect or imperfect self-defense
when he stabbed the victim repeatedly with a screwdriver. We further
conclude that the trial court did not prejudicially err by precluding
questioning about carotid restraints on relevance grounds and pursuant to
Evidence Code section 352;3 nor did it prejudicially err in declining to
admonish the jury that a witness’s comment was “inappropriate.” Because
we find that the court did not err in the ways Oliveros contends, we reject his
argument that the cumulative effect of any errors violated his due process
rights. However, we agree with both parties that clerical errors in the
sentencing minute order and abstract of judgment should be corrected.
Lastly, we conclude that Senate Bill No. 81’s revisions to Penal Code section
1385 do not apply to strike convictions because they are not “enhancements”
falling within section 1385’s ambit. Accordingly, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
One morning in September 2020, the victim, J. Jackson, was walking
down San Ysidro Boulevard in San Diego. Oliveros waved him over and
asked to borrow his phone. Jackson pulled out his phone and offered to call
2 Section 1385, subdivision (c), lists mitigating circumstances a trial
court must consider when deciding whether to strike enhancements from a
defendant’s sentence in the furtherance of justice. (See People v. Sek (2022)
74 Cal.App.5th 657, 674 (Sek).)
3 Evidence Code section 352 provides that “[t]he court in its discretion
may exclude evidence if its probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue consumption of time
or (b) create substantial danger of undue prejudice, of confusing the issues, or
of misleading the jury.”
3
someone for Oliveros instead. Oliveros snatched Jackson’s phone, and when
Jackson reached to take it back, Oliveros punched Jackson in the face.
Jackson responded by punching Oliveros three times in the face, and Oliveros
took off running with Jackson’s phone in his hand. Jackson chased Oliveros
through an intersection where Oliveros threw the phone down onto the
street, breaking it.
Jackson pursued Oliveros to a nearby 7-Eleven. Outside the store,
Oliveros turned around to face Jackson and the two grappled with each other.
During that struggle, Oliveros took a screwdriver he had in his pocket and
stabbed Jackson several times in the back, torso, and neck. Jackson bled
from his wounds, but in the moment he did not realize he had been stabbed.
Jackson yelled for bystanders to call 911 while he punched Oliveros. At one
point, Jackson pulled Oliveros’s ponytail and “smashed” his head against the
store window.
Jackson and Oliveros ended up inside the 7-Eleven where they
continued their scuffle. When Oliveros attempted to leave the store, Jackson,
a former Marine trained in mixed martial arts, placed him in a rear choke or
“sleeper” hold from behind. Jackson then maneuvered on top of Oliveros, who
began stabbing Jackson with the screwdriver again in his back, neck, and
face. Jackson used other maneuvers to try to disarm Oliveros, but he was
unsuccessful. Oliveros told Jackson, “Get off me or I’ll stab you again.” At
that point, Jackson realized he was bleeding, so he stood up and backed
away. Oliveros then got up, walked toward Jackson, and said, “let’s go now”
before stabbing Jackson again. Jackson pushed Oliveros back and threw a
bottle of water at him, then walked out of the store.
Oliveros approached the store’s front door from inside and stuck his
tongue out towards Jackson. Oliveros then took a beverage from a cooler and
4
approached the store clerk, who was on the phone with 911. Oliveros threw
the screwdriver at the clerk through a gap in a plastic barrier, then stood
“staring” at the clerk until officers arrived. The clerk testified that Oliveros
never appeared scared, never said he was scared, did not ask for help, and
did not ask the clerk to call the police. Video footage from inside the store
showed Oliveros smiling while the clerk was on the phone.
When police arrived, Jackson was outside the store, bleeding from his
neck and falling in and out of consciousness. Jackson was treated at a local
trauma center for a neck wound, lacerations to his lip and left ear, and
superficial abrasions to his back. A trauma surgeon testified that Jackson’s
neck wound was “in a potentially very dangerous spot” near his carotid artery
and jugular vein, which if punctured deeply enough, could result in
strangulation.
The officer who arrested Oliveros observed that he seemed out of
breath and had a “blank stare.” The next day after the incident, Oliveros’s
booking photo showed no noticeable cuts, bruises, or other injuries to his face.
During an interview with law enforcement officers, Jackson said that
he was angry at Oliveros, but was not afraid during the confrontation. He
said that he was trying to get the screwdriver away from Oliveros “because
[he] was going to stab [Oliveros] in the eye” and would have “just went to
town on him.” He told a detective that if Oliveros “didn’t have that
screwdriver, I’d probably still be beating his face in.”
The People charged Oliveros with attempted murder (§§ 664, subd. (a)
& 187, subd. (a), count one), robbery (§ 211, count two), and misdemeanor
vandalism (§ 594, subds. (a) & (b)(2)(A), count three). The information
further alleged that Oliveros inflicted great bodily injury (§ 12022.7, subd.
(a)) and used a deadly and dangerous weapon (§ 12022, subd. (b)(1)) in
5
connection with count one. The jury found Oliveros guilty on all counts and
also made true findings on the alleged enhancements.
Oliveros subsequently admitted allegations of the prior strike
conviction. (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i).) In January 2022,
the trial court declined to strike the prior conviction and the deadly-weapon
enhancement, but it dismissed the great-bodily-injury enhancement and
sentenced Oliveros to an aggregate determinate term of 17 years. Oliveros
timely appealed.
DISCUSSION
I
Oliveros first contends there was insufficient evidence for the jury to
find that he did not act in self-defense. More specifically, he argues that the
jury could not reasonably have rejected his claim that he either reasonably or
unreasonably believed he was in imminent danger of suffering great bodily
injury when he used the screwdriver, and that he used no more force than
reasonably necessary to defend against that danger. Oliveros also claims
that because the evidence establishes that he acted in self-defense, it was
also insufficient to support the intent to kill element of attempted murder.
We disagree. Substantial evidence supports the jury’s implicit finding
that Oliveros did not act in either perfect or imperfect self-defense when he
stabbed Jackson.
A. Governing Law
For an attempted killing to be in self-defense, the defendant must
actually believe in the need to defend. (See People v. Humphrey (1996) 13
Cal.4th 1073, 1082 (Humphrey); People v. Valenzuela (2011) 199 Cal.App.4th
1214, 1232.) There are two types of self-defense under California law:
“perfect” self-defense and “imperfect” self-defense. (People v. Randle (2005)
6
35 Cal.4th 987, 994.) “For perfect self-defense, one must actually and
reasonably believe in the necessity of defending oneself from imminent
danger of death or great bodily injury.” (Ibid.) A bare fear of the danger is
not enough—“the circumstances must be sufficient to excite the fears of a
reasonable person, and the party [attempting to] kill[] must have acted under
the influence of such fears alone.” (§ 198; see People v. Flannel (1979) 25
Cal.3d 668, 675.)
Imperfect self-defense in this context requires evidence showing the
defendant attempted to kill another person “ ‘because the defendant actually,
but unreasonably, believed he was in imminent danger of death or great
bodily injury . . . .’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1048, first
italics in original, second italics added.) In contrast to perfect self-defense,
imperfect self-defense is not a true affirmative defense; it is shorthand for a
theory of voluntary manslaughter. (People v. Barton (1995) 12 Cal.4th 186,
199–201.)
“The subjective elements of self-defense and imperfect self-defense are
identical[,]” and under each theory the defendant “must actually believe in
the need to defend himself against imminent peril to life or great bodily
injury.” (People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262.) Neither
perfect nor imperfect self-defense may be “invoked by a defendant who,
through his own wrongful conduct (e.g., the initiation of a physical assault or
the commission of a felony), has created circumstances under which his
adversary’s attack or pursuit is legally justified.” (In re Christian S. (1994) 7
Cal.4th 768, 773, fn. 1 (Christian S.).) Also, for either type of self-defense to
apply, “the fear must be of imminent harm.” (Humphrey, supra, 13 Cal.4th
at p. 1082.) A fear of future harm will not suffice no matter how great the
7
fear and likelihood of harm. (People v. Landry (2016) 2 Cal.5th 52, 97–98;
People v. Manriquez (2005) 37 Cal.4th 547, 581–582.)
On review, we must “ ‘examine the entire record in the light most
favorable to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—
that would support a rational trier of fact in finding [the defendant guilty]
beyond a reasonable doubt.’ [Citations.]” (People v. San Nicolas (2004) 34
Cal.4th 614, 657–658.) We will not reverse unless there is no hypothesis
upon which sufficient substantial evidence exists to support the conviction.
(People v. Bolin (1998) 18 Cal.4th 297, 331.) We must “presume in support of
the judgment the existence of every fact the trier could reasonably deduce
from the evidence.” (People v. Jones (1990) 51 Cal.3d 294, 314.) “The same
standard applies when the conviction rests primarily on circumstantial
evidence.” (People v. Kraft (2000) 23 Cal.4th 978, 1053.) “An appellate court
must accept logical inferences that the jury might have drawn from the
circumstantial evidence.” (People v. Maury (2003) 30 Cal.4th 342, 396.)
B. Analysis
Substantial evidence supports the jury’s implicit finding that Oliveros
did not actually believe, reasonably or unreasonably, that he was in
imminent danger of death or great bodily injury. At the point when Oliveros
first stabbed Jackson several times outside the 7-Eleven, the parties had only
been grappling and exchanging punches. Video footage, still shots, and
witness testimony all confirmed that the scuffle only involved the parties’
fists and bodies at the time Oliveros escalated the conflict by using a deadly
weapon. Unlike in other cases in which deadly force was deemed potentially
justified in response to non-deadly force, there is no indication in the record
that Oliveros was uniquely vulnerable, physically or mentally, such that
8
someone in his position “ ‘would more readily believe he was in imminent
danger.’ ” (People v. Horn (2021) 63 Cal.App.5th 672, 683 [collecting cases
involving defendants asserting self-defense who have physical or other
vulnerabilities]; see, e.g., Humphrey, supra, 13 Cal.4th at p. 1088 [evidence of
battered women’s syndrome relevant to defendant’s belief regarding
imminent danger]; People v. Smith (1907) 151 Cal. 619, 626–629 [defendant’s
physical condition relevant in determining whether belief in need for self-
defense was reasonable].) Jackson’s relatively small stature would have
given Oliveros no apparent reason to believe that Jackson would pose an
obvious threat of great bodily injury in a fistfight. (See Smith, at pp. 627–628
[disparity in relative physical condition is relevant to self-defense].)
Even after Jackson attempted to use his training in mixed martial arts
to subdue Oliveros, a rational factfinder could still conclude that those
maneuvers did not cause Oliveros to believe, reasonably or otherwise, that he
was in imminent danger of great bodily injury. There was no evidence that
Jackson was ever armed during the fight, and witness testimony supported
the conclusion that Oliveros did not fear he was in danger. (See People v.
Valencia (2008) 43 Cal.4th 268, 288, fn. 6 [if defendant unreasonably believed
victim “was going to punch him in the arm and stabbed him to death in
response, this belief would not support a claim of imperfect self-defense for
the reason that the belief, even if reasonable, would not permit the use of
deadly force”]; cf. People v. Rogers (2006) 39 Cal.4th 826, 884 [imperfect self-
defense instruction unnecessary where defendant had a gun and the victim
was unarmed].) Witnesses testified that Oliveros did not appear scared,
never said he was scared, did not ask for help, and did not ask anyone to call
the police. He apparently emerged from the altercation largely unscathed,
with no noticeable cuts, bruises, or other injuries to his face. Video footage
9
and a still image from inside the store even showed Oliveros sticking his
tongue out and smiling while the clerk was calling 911. Furthermore, the
fact that Oliveros re-engaged with Jackson and stabbed him again—after
Jackson backed away inside the store—undercuts any inference that Oliveros
used the screwdriver out of fear of imminent danger. (Cf. People v.
Pinholster (1992) 1 Cal.4th 865, 966 [“right of self-defense does not extend
beyond the time of real or apparent danger”]; People v. De Leon (1992) 10
Cal.App.4th 815, 825 [no substantial evidence for imperfect self-
defense instruction where defendant was “firing at men who had turned and
started to walk away”].)
The fact that Oliveros was the instigator of the fight also supports the
jury’s implicit finding that he did not act in self-defense. (See Christian S.,
supra, 7 Cal.4th at p. 773, fn. 1.) As noted, a defendant cannot invoke self-
defense when, “through his own wrongful conduct (e.g., the initiation of a
physical assault or the commission of a felony),” he has “created
circumstances under which his adversary’s attack or pursuit is legally
justified.” (Ibid.) Here, Oliveros created such circumstances by stealing
Jackson’s phone, punching him in the face before Jackson threw a punch, and
then escalating the conflict by using a screwdriver to stab Jackson
repeatedly.
Thus, viewing the evidence in the light most favorable to the verdict,
we conclude there is substantial evidence to support the jury’s finding that
Oliveros did not believe he was in danger of great bodily injury when he used
deadly force against Jackson. Because we reach this conclusion, we reject
10
Oliveros’s related contention—also premised solely on self-defense—that
there was insufficient evidence to prove his intent to kill.4
II
We turn next to Oliveros’s argument that the trial court prejudicially
erred by precluding the defense from asking a law enforcement witness about
his department’s ban on carotid restraints. We conclude that the trial court
did not abuse its discretion by excluding that line of questioning on relevance
grounds and because its probative value was outweighed by undue time
consumption and the danger of confusing the jury. (See Evid. Code, § 352.)
We also conclude that even if there was error, it was not prejudicial.
By way of additional background, when a responding San Diego Police
Department (SDPD) officer testified at trial, defense counsel asked on cross-
examination whether SDPD had recently prohibited officers from using “a
technique known as a carotid restraint to detain and perhaps effectuate an
arrest[.]” The prosecutor objected, and during a sidebar outside the presence
of the jury, defense counsel argued that he should be allowed to present
evidence that Jackson’s use of a choke hold during the incident was an
unreasonable use of force. The defense contended that evidence of SDPD’s
prohibition of carotid restraints was necessary to counter the People’s
argument, previewed earlier in the proceedings, that common law allowed for
Jackson to effectuate a citizen’s arrest under section 837.5 The prosecutor
4 Oliveros does not contend that there is insufficient evidence of intent to
kill even if the jury could reasonably have concluded that he was not acting
in self-defense.
5 Section 837 provides: “A private person may arrest another:
“1. For a public offense committed or attempted in his presence.
“2. When the person arrested has committed a felony, although not in
his presence.
11
argued in response that SDPD policies were irrelevant to determining what
force Jackson, a private citizen, could lawfully use in those circumstances.
He also argued that even if such policies were somehow relevant, the officer
was not an expert on the use of reasonable force in this context.
The trial court sided with the People and found that SDPD policies
regarding carotid restraint were irrelevant because Jackson was not a law
enforcement officer. The court also found that allowing questions about law
enforcement policies might lead the jury to speculate about why SDPD made
certain policy decisions, which would be irrelevant to whether Jackson’s use
of force was reasonable.
We apply an abuse of discretion standard to review the trial court’s
rulings determining the relevance and admissibility of evidence. (People v.
Green (1980) 27 Cal.3d 1, 24–25; People v. Garcia (2001) 89 Cal.App.4th 1321,
1334.) The court abuses its discretion in deciding whether to admit evidence
only when it acts in an “arbitrary, capricious, or patently absurd manner that
result[s] in a manifest miscarriage of justice.” (People v. Rodriguez (1999) 20
Cal.4th 1, 9–10.) Only relevant evidence is admissible (Evid. Code, § 350),
and “[t]he trial court has broad discretion . . . in determining the relevance of
evidence” (People v. Horning (2004) 34 Cal.4th 871, 900). “ ‘Relevant
evidence’ means evidence, including evidence relevant to the credibility of a
witness or hearsay declarant, having any tendency in reason to prove or
disprove any disputed fact that is of consequence to the determination of the
action.” (Evid. Code, § 210.)
Here, we conclude that the trial court did not abuse its discretion by
precluding the defense from probing SDPD’s policies on carotid restraint.
“3. When a felony has been in fact committed, and he has reasonable
cause for believing the person arrested to have committed it.”
12
Any underlying reasons for SDPD’s policy changes bore little relation to
whether Jackson, a private citizen—engaging with an individual who had
just stolen his phone, punched him in the face, and then stabbed him with a
screwdriver—used reasonable force during the ensuing fight. As the People
point out, the trial court could reasonably have concluded that allowing the
defense to explore department-wide decisions regarding the use of carotid
restraints would likely lead to confusing and time-consuming discussions of
medical, social, and policy issues—as well as potential disputes over whether
Jackson’s moves were equivalent to the use of a carotid restraint. Moreover,
the mere existence of the SDPD policy proved nothing without non-
speculative evidence as to the reasons why it was enacted, and there was no
showing that the testifying officer was competent to testify to those reasons.
We cannot say in these circumstances that excluding such evidence was
arbitrary, capricious, or patently absurd.
We also reject Oliveros’s argument that precluding this line of
questioning undermined his constitutional right to present a defense. “ ‘As a
general matter, the ordinary rules of evidence do not impermissibly infringe
on the accused’s [constitutional] right to present a defense. Courts retain . . .
a traditional and intrinsic power to exercise discretion to control the
admission of evidence in the interests of orderly procedure and the avoidance
of prejudice. [Citations.]’ ” (People v. Cudjo (1993) 6 Cal.4th 585, 611.) The
trial court exercised that power here and explained why admitting irrelevant
evidence regarding SDPD policies would cause undue speculation and
prejudice.
Moreover, the defense was still able to, and did in fact, use other
evidence unrelated to SDPD policies to argue at length that Oliveros acted in
self-defense against Jackson’s use of mixed martial arts techniques. For
13
example, in his closing argument, defense counsel referenced Jackson’s
training as a marine, Jackson’s interview statements about wanting to hurt
Oliveros, and the fact that Jackson put Oliveros “in this rear naked
chokehold[]” that “can make a person pass out.” Oliveros was thus still able
to present his asserted defense that Jackson’s use of force was unreasonable,
even without the excluded evidence regarding SDPD policies. (See People v.
Anderson (2012) 208 Cal.App.4th 851, 881–882 [no constitutional violation
because excluding evidence was not a “ ‘refusal to allow [defendant]
to present a defense, but only a rejection of some evidence concerning the
defense’ ” and the excluded evidence was “only marginally relevant”].)
Finally, even if the court somehow erred in excluding evidence on the
SDPD’s carotid restraint policy, any error would be harmless under the
applicable Watson standard, which inquires whether it is reasonably probable
the defendant would have obtained a more favorable outcome had the error
not occurred. (See People v. Watson (1956) 46 Cal.2d 818, 836; People v. Earp
(1999) 20 Cal.4th 826, 880 [applying Watson standard to erroneous exclusion
of evidence].) Oliveros’s defense centered on an asserted belief that “he was
in imminent danger of death or great bodily injury[,]” which for the reasons
noted above, the jury had ample reasons to reject. Even assuming the
maneuver Jackson employed inside the store was comparable to a carotid
restraint, the evidence is undisputed that Oliveros was the original assailant
and that Jackson used the maneuver only after Oliveros had already stabbed
him several times in the back, neck, and face. In these circumstances, it is
not reasonably probable that the jury would have reached a verdict more
favorable to Oliveros if it had known of SDPD’s carotid restraint policy.
14
For all these reasons, we conclude that the court did not prejudicially
err in preventing the defense from eliciting testimony about SDPD policies on
carotid restraint.
III
Oliveros next argues that the court prejudicially erred when it
sustained a defense objection to a prosecution witness’s comment and
instructed the jury to disregard it, but decided against admonishing the jury
that the comment was “inappropriate.” Again, we disagree.
For context, an investigator for the San Diego County District
Attorney’s office testified about still images taken from video surveillance
inside and outside the 7-Eleven. At one point, the investigator described an
image depicting the moments after Jackson exited the store to wait for police
to arrive. The investigator said the image showed Oliveros approaching the
front door facing the parking lot, and that “[h]is tongue [was] sticking fully
out of his mouth, towards his chin, like, a – similar to, like, a Joker in
Batman.” The trial court sustained defense counsel’s objection and granted
his motion to strike.
During a subsequent break outside the presence of the jury, defense
counsel moved for a mistrial, arguing that the investigator’s reference to the
Joker constituted prosecutorial misconduct. The prosecutor responded that
the brief reference to a fictional villain did not warrant declaring a mistrial,
and that the court could provide an additional curative instruction to the jury
if needed. After considering some case law cited by the defense, the court
found those cases distinguishable, in part because they involved the
prosecutor making longer or more extreme comparisons during closing
arguments. The court agreed to further admonish the jury that the comment
should be ignored, but the defense requested that the court specifically say it
15
was “inappropriate.” The court denied that request, finding that if the court
were to remark on the appropriateness of the witness’s testimony, the jury
might interpret that remark as commentary on the evidence. When the
jurors returned, the court told them to ignore “the comment about the Joker”
and reminded them that it was stricken from the record.
Oliveros contends on appeal that the court erred by merely instructing
the jurors to disregard the Joker reference, and declining to tell them in
addition that the comment was “inappropriate.” He argues that prosecutors
should refrain from comparing defendants to historic or fictional villains, and
that the circumstances called for a “stronger admonishment” than the one the
court gave.
We disagree. As an initial matter, the prosecutor did not make the
comment himself, and there is no indication he intentionally elicited the
testimony. (See People v. Chatman (2006) 38 Cal.4th 344, 379–380
(Chatman) [“ ‘Although it is misconduct for a prosecutor intentionally to elicit
inadmissible testimony [citation], merely eliciting evidence is not
misconduct.’ ”].) In the questioning leading up to that point, the prosecutor
had been asking the investigator to describe the parties’ actions and
appearances as depicted in video footage and still images admitted into
evidence. The image at issue was one of many, and after the investigator
said that Oliveros appeared to be “putting his tongue out” in the image, the
prosecutor asked the investigator to elaborate on “the position of [Oliveros’s]
tongue and mouth[.]” The investigator, not the prosecutor, volunteered the
comparison to the Joker only after first stating that Oliveros’s tongue was
“sticking fully out of his mouth, towards his chin[.]”
It is thus unclear whether the issue is properly considered one of
alleged prosecutorial misconduct or improper admission of evidence. (See
16
Chatman, supra, 38 Cal.4th at pp. 379–380.) “Defendant cites no authority
for the proposition that, simply by answering an attorney’s questions, a
witness commits misconduct that could require reversal of the resulting
conviction.” (People v. Mills (2010) 48 Cal.4th 158, 198 (Mills).) Also, “ ‘a
prosecutor cannot be faulted for a witness’s nonresponsive answer that the
prosecutor neither solicited nor could have anticipated. [Citation.]’ ” (People
v. Molano (2019) 7 Cal.5th 620, 674; see also People v. Valdez (2004) 32
Cal.4th 73, 125 [no misconduct where “the prosecutor did not intentionally
solicit, and could not have anticipated,” the witness’s testimony].) However,
because Oliveros and “the cases generally discuss the issue under the rubric
of misconduct, we will do so also.” (Chatman, at p. 380.)
“ ‘A prosecutor’s conduct violates the Fourteenth Amendment to the
federal Constitution when it infects the trial with such unfairness as to make
the conviction a denial of due process. Conduct by a prosecutor that does not
render a criminal trial fundamentally unfair is prosecutorial misconduct
under state law only if it involves the use of deceptive or reprehensible
methods to attempt to persuade either the trial court or the jury.’ [Citation.]”
(People v. Gonzales (2011) 52 Cal.4th 254, 305.) “The ‘critical inquiry on
appeal is not how many times the prosecutor erred but whether the
prosecutor’s errors rendered the trial fundamentally unfair or
constituted . . . reprehensible methods to attempt to persuade the jury.’
[Citation.]” (People v. Peoples (2016) 62 Cal.4th 718, 794 (Peoples).)
We conclude that—even if fairly attributable to the prosecution—the
investigator’s “brief and fleeting reference[]” to the Joker “[was] not so
intemperate, egregious, or reprehensible as to constitute prosecutorial
misconduct under state law or federal constitutional law” (Mills, supra, 48
Cal.4th at p. 199), and the court’s instructions were sufficient to cure any
17
potential prejudice. The court properly instructed the jurors that the
comment was stricken and that they should ignore it, and jurors are
presumed to understand and follow the instructions they are given. (See
People v. Sanchez (2001) 26 Cal.4th 834, 852.) Before closing arguments, the
court further instructed the jurors that if it had sustained an objection to a
question or “order[ed] testimony stricken from the record, you must disregard
it and you must not consider that testimony for any purpose.” (See Mills, at
p. 199 [“[W]e must assume the jury followed the trial court’s instruction not
to consider testimony that was the subject of a successful objection.”];
CALCRIM No. 222.) The jury was thus instructed, in multiple ways and at
different times, to disregard the Joker comparison. Oliveros cites no
authority that a trial court in these circumstances must go beyond sustaining
the objection and instructing the jury to disregard such a comment.
While the Joker comment was inadmissible, Oliveros cannot show he
was prejudiced by the court’s admonition, “especially where, as here, [his]
objection to it was correctly sustained at trial.” (Peoples, supra, 62 Cal.4th at
p. 794.) The prosecutor did not persist in his line of questioning after the
objection was sustained and did not refer to the comment in closing
arguments. (Cf. Mills, supra, 48 Cal.4th at p. 198 [no prosecutorial
misconduct even after court sustained objections to prosecutor’s questions
and “the prosecutor made two more unsuccessful attempts” to elicit
inadmissible information “before abandoning the attempt[]”].) The
investigator’s comment was brief and not “unlinked to the evidence” in a way
that would increase its prejudicial impact. (See People v. Jackson (2016) 1
Cal.5th 269, 350 [prosecutors should refrain from comparisons “especially
where the comparisons are wholly inappropriate or unlinked to the
evidence[,]” but prejudice is lessened when “improper statements spanned a
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relatively small amount of time”].) Moreover, the jurors had the opportunity
to examine the images and video footage themselves to draw their own
conclusions about Oliveros’s demeanor after the fight ended.
Accordingly, we conclude that the court did not err by instructing the
jury to disregard the comment without also admonishing it that the comment
was “inappropriate.”
IV
In light of our determination that the trial court did not commit any
individual error, we conclude there was no violation of Oliveros’s due process
rights from any cumulative error. However, we agree with the parties that
clerical errors in the sentencing minute order and the abstract of judgment
need correcting. Specifically, for Oliveros’s second-degree robbery conviction,
the court imposed a consecutive term of one-third the midterm of three years
(in other words, one year), doubled to two years for Oliveros’s prior strike.
(§§ 211, 213, subd. (a)(2), 667, subds. (b)-(i).) The minute order and abstract
of judgment inaccurately indicate the court imposed an upper-term sentence.
(See People v. Farell (2002) 28 Cal.4th 381, 384, fn. 2 [“[t]he record of the oral
pronouncement of the court controls over the clerk’s minute order[]”].) Thus,
the trial court should correct the sentencing minute order and abstract of
judgment to reflect the court’s oral pronouncement. (See People v.
Mitchell (2001) 26 Cal.4th 181, 188 [where discrepancy exists between
abstract of judgment, reporter’s transcript, and trial court’s minute order,
appellate court should order trial court to make correction].)
V
Lastly, Oliveros argues that the trial court was obligated to consider
any applicable mitigating circumstances listed in newly revised section 1385,
subdivision (c), in deciding whether to dismiss his prior strike conviction
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under the Three Strikes law (§§ 1170.12, subds. (a)-(d) & 667, subds. (b)-(i)).
The People argue in response that the recent revisions to section 1385 did not
impact the court’s consideration of Oliveros’s prior strike because the Three
Strikes law establishes an alternative penalty scheme, not an enhancement.
For the reasons below, we agree with the People.
Senate Bill No. 81 became effective on January 1, 2022, and
amended section 1385 to specify factors that a trial court must consider when
deciding whether to strike enhancements from a defendant’s sentence in the
interest of justice. (Sek, supra, 74 Cal.App.5th at p. 674; see Stats. 2021,
ch. 721, § 1.) Specifically, section 1385, subdivision (c)(1) now provides that
“the court shall dismiss an enhancement if it is in the furtherance of justice to
do so,” and subdivision (c)(2) states that “[i]n exercising its discretion under
this subdivision, the court shall consider and afford great weight to evidence”
of nine listed “mitigating circumstances,” any one of which “weighs greatly in
favor of dismissing the enhancement, unless the court finds that dismissal of
the enhancement would endanger public safety.” (Italics added.)
As our Supreme Court has explained, the Three Strikes law
“articulates an alternative sentencing scheme for the current offense rather
than an enhancement. [Citation.]” (People v. Superior Court (Romero) (1996)
13 Cal.4th 497, 527, italics added.) The Three Strikes law is distinguishable
from an enhancement in that it does not add an additional term of
imprisonment to the base term, but rather provides for an alternate sentence
when qualifying prior convictions are proven. (People v. Williams (2014) 227
Cal.App.4th 733, 744.) We presume the Legislature, when it passed Senate
Bill No. 81, was aware of the distinction drawn by our courts between the
Three Strikes law as an alternative sentencing scheme and an enhancement.
(See People v. Blakeley (2000) 23 Cal.4th 82, 89 [“the Legislature is presumed
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to have known of and to have acquiesced in the previous judicial
construction” when amending a statute].) Accordingly, we conclude that
because a prior strike conviction is not an enhancement and does not come
within the provisions of amended section 1385, subdivision (c), remand for
resentencing is not required on this basis.6 (See People v. Burke (2023) 89
Cal.App.5th 237, 242–244.)
6 The People requested that we take judicial notice of Senate Bill No. 81’s
legislative history. However, legislative history is generally appropriate only
when the language of the statute is ambiguous. (Kaufman & Broad
Communities, Inc. v. Performance Plastering, Inc. (2005) 133 Cal.App.4th 26,
29.) Because the language of section 1385 is clear and unambiguous, we
follow its plain meaning. (See Hughes v. Pair (2009) 46 Cal.4th 1035, 1046 [if
statutory language “is susceptible of only one meaning,” courts presume the
Legislature meant what it said, and the plain meaning of the statute
controls].) Accordingly, we deny the People’s motion to take judicial notice of
Senate Bill No. 81’s legislative history.
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DISPOSITION
The trial court is directed to amend the sentencing minute order dated
January 5, 2022, and the abstract of judgment, in a manner consistent with
this opinion. The trial court shall forward the corrected abstract of judgment
to the California Department of Corrections and Rehabilitation. In all other
respects, the judgment is affirmed.
BUCHANAN, J.
WE CONCUR:
IRION, Acting P.J.
DATO, J.
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