People v. Herring CA5 ( 2023 )

Filed 5/16/23 P. v. Herring 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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,
F084088
Plaintiff and Respondent,
(Super. Ct. No. BF180906A)
v.
LEONARD BARNARD HERRING, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern County. John W. Lua,
Judge.
Brad J. Poore, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Christopher J. Rench and
Cameron M. Goodman, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
INTRODUCTION
Defendant Leonard Barnard Herring appeals his convictions for voluntary
manslaughter and assault with a deadly weapon, asserting the trial court erroneously
admitted irrelevant and prejudicial evidence. Additionally, defendant argues the trial
court erred in sentencing him due to its misinterpretation of recent changes to Penal Code
section 1170, subdivision (b).1 The judgment is affirmed.
PROCEDURAL SUMMARY
On September 18, 2020, the Kern County District Attorney filed an information
charging defendant with the murder of Denysha Langston (§ 187, subd. (a); count 1);
attempted murder (§§ 664, 187; count 2); assault with a deadly weapon (§ 245,
subd. (a)(1); count 3); and being a felon in possession of a firearm (§ 29800, subd. (a)(1);
count 4). As to counts 1 and 2, the information further alleged that defendant personally
used a deadly weapon. (§ 12022, subd. (b)(2).)
In November 2021, defendant’s motion to sever counts 1 through 3 from count 4,
was granted. The trial court cautioned, however, that severance did not necessarily mean
all evidence of the handgun would be excluded from trial on counts 1 through 3.
Defendant therefore moved in limine for exclusion of all evidence of his ownership of a
handgun from the trial on counts 1 through 3, which was denied.
Defendant’s first trial began on November 10, 2021, and proceeded through
November 29, 2021. The first trial ended in a mistrial as the jury was unable to reach a
verdict on any of counts 1 through 3. Thereafter, defendant refiled his motion in limine
seeking to exclude any evidence of his ownership of a handgun from the trial on counts 1
through 3, which was again denied by the court on January 27, 2022.
1 All further statutory references are to the Penal Code except as otherwise noted.
2.
On February 18, 2022, a jury found defendant not guilty of murder on count 1, but
guilty of the lesser included offense of voluntary manslaughter (§ 192, subd. (a)); not
guilty of attempted murder on count 2; and guilty on count 3. The jury further found true
that defendant personally used a deadly weapon in the commission of count 1. A second
jury found defendant guilty on count 4.
On March 21, 2022, the trial court sentenced defendant to an aggregate term of 13
years in prison as follows: on count 1, 11 years (the upper term), plus a one-year
enhancement pursuant to section 12022, subdivision (b)(1); on count 3, one year (the
middle term), to be served consecutive to the sentence imposed on count 1; and on
count 4, three years, to be served concurrently with the sentence for count 1.
Defendant timely appealed.
FACTUAL SUMMARY
Defendant lived with his girlfriend L.F., her son Devon, and her son’s girlfriend,
Denysha Langston, in a house in Bakersfield. On May 5, 2020, the family was having a
party at that house, where everyone was drinking alcohol. L.F.’s other son, Deon,
became involved in a verbal and physical altercation with defendant at the party,
following lewd comments from defendant to L.F. Defendant and L.F. left the party and
went to defendant’s uncle’s house. The couple spent several hours at defendant’s uncle’s
house before defendant and his uncle became involved in a physical altercation as well,
and the couple left to return to their house around midnight. Upon arriving at their house,
L.F. went inside to retrieve some of defendant’s property for him. While L.F. was in the
house, defendant began honking the horn of his truck.
Devon, who was also at the house, became angry that defendant was honking the
horn, and went outside to confront defendant. Langston followed Devon outside,
attempting to restrain him from confronting defendant. Devon nevertheless confronted
defendant, and attempted to punch defendant as he sat in his truck. After striking or
attempting to strike defendant, Devon realized he had been cut by a knife defendant held
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in his hand. As Devon returned to the house, Langston approached the truck to confront
defendant. Defendant stabbed Langston one time in the chest through the window of the
truck where he was seated. The stab wound penetrated Langston’s heart, and she
ultimately died from her injuries.
Defendant fled the scene after the stabbing. L.F. called 911. Later that night or
early the next morning, L.F. went to the police station to discuss what had happened with
the Bakersfield Police, particularly Detective Keith Cason. During L.F.’s interview with
Cason, defendant called L.F. and asked her to retrieve some of his property—namely, his
backpack, his phone, and his gun—and bring them to him.
On the morning of May 6, 2020, defendant was interviewed by Cason and
Bakersfield Police Detective Randy Petris. During that interview, defendant
acknowledged stabbing Langston. A video recording of that interview was played for the
jury.
DISCUSSION
I. THE TRIAL COURT DID NOT ERR IN ADMITTING EVIDENCE
DEFENDANT POSSESSED A HANDGUN
According to defendant, the trial court erred by admitting evidence that defendant
owned a handgun during trial on counts 1 through 3, which had been severed from
count 4, because the evidence was not relevant and its prejudice outweighed its probative
value. The People argue both that the evidence was relevant and not prejudicial, and that
any error which may have occurred is harmless. We agree with the People.
Prior to trial, defendant moved in limine for an order excluding all evidence
obtained during the search of L.F.’s house, including the observation of and seizure of the
handgun, on the basis that it was irrelevant and constituted impermissible character
evidence. The prosecution noted it intended to use the fact that the defendant requested
L.F. obtain and provide his handgun and other items of property for him from her house
as indicative of a plan to flee, and therefore, of a guilty state of mind. The trial court
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determined evidence that defendant intended to flee the area was relevant to his
consciousness of guilt. Further, the court concluded, because it severed the felon in
possession charge from the other charges and the jury would have no knowledge
defendant was a felon, the jury would not know defendant could not lawfully possess a
firearm. Therefore, the trial court decided the mere fact of defendant’s ownership of a
firearm was not prejudicial.
At trial, the prosecution introduced two pieces of evidence which had the effect of
showing defendant owned a handgun, specifically, the testimony of L.F. and a
photograph of the gun located during the search of her house. The existence of the gun
was referenced in the prosecution’s closing statement.
A. Standard of Review
Defendant contends that, while evidentiary errors related to the admissibility of
evidence are generally reviewed under the abuse of discretion standard, this question
should be reviewed de novo. According to defendant, where there are no factual
disputes, de novo review of evidentiary questions is appropriate. The People argue this
question of admissibility must be reviewed under the abuse of discretion standard.
It is well established trial court rulings on the admissibility of evidence are
reviewed for an abuse of discretion. (See, e.g., People v. McCurdy (2014) 59 Cal.4th
1063, 1095; People v. Homick (2012) 55 Cal.4th 816, 859; People v. Waidla (2000) 22
Cal.4th 690, 717.) None of the cases cited by defendant for the proposition that de novo
review is appropriate here concerned the review standard for decisions related to the
admissibility of evidence. (See People v. Avila (2006) 38 Cal.4th 491, 529 [concerning
review standard for juror strikes pursuant to Witherspoon v. Illinois (1968) 391 U.S. 510,
522]; People v. Maury (2003) 30 Cal.4th 342, 404 [review standard for voluntariness of
incriminating statements under due process clause]; The People ex rel. Dept. of
Corporations v. SpeeDee Oil Change Systems Inc. (1999) 20 Cal.4th 1135, 1143–1144
[review standard for disqualification motions].)
5.
In contrast, the Supreme Court has stated that “an appellate court applies the abuse
of discretion standard of review to any ruling by a trial court on the admissibility of
evidence, including, as noted, one that turns on the relevance of the evidence in
question.” (People v. Waidla, supra, 22 Cal.4th at p. 723, italics added.) “Relevancy is a
legal issue for courts to answer.” (People v. Nelson (2008) 43 Cal.4th 1242, 1265.)
Despite relevancy being a legal issue, it is reviewed for abuse of discretion. Indeed,
relevancy is only one of numerous legal issues decided in the context of admitting or
refusing evidence over which appellate courts routinely defer to trial courts. (People v.
Parker (2022) 13 Cal.5th 1, 39 [noting trial court rulings on relevancy and admissibility
under Evidence Code sections 352 and 1101 are conducted under abuse of discretion
standard]; People v. Flinner (2020) 10 Cal.5th 686, 727 [observing a trial court’s finding
of foundational facts related to admissibility of a writing is reviewed for abuse of
discretion]; People v. Landry (2016) 2 Cal.5th 52, 73 [finding of statutory privilege
reviewed for abuse of discretion]; People v. Grimes (2016) 1 Cal.5th 698, 711 [reviewing
a decision regarding the statement-against-interest hearsay exception for abuse of
discretion]; People v. Brown (2014) 59 Cal.4th 86, 101 [admissibility of expert testimony
is reviewed for abuse of discretion].)
Defendant points to no authority stating a reviewing court should engage in de
novo review on questions of admissibility of evidence under state law. While certain
questions of evidentiary admissibility are reviewed de novo when the challenge is based
on federal constitutional claims (see, e.g., People v. Seijas (2005) 36 Cal.4th 291, 304),
no such constitutional claim is asserted here. Rather, defendant merely asserts the
evidence was not relevant and was more prejudicial than probative. Abuse of discretion
review applies.
B. The Trial Court Did Not Err, Because the Evidence Was Relevant and
Was Not Unduly Prejudicial
6.
Defendant claims the evidence of defendant requesting his gun and other items be
brought to him by L.F. after the stabbing was irrelevant, and even if it was not irrelevant,
its probative value was outweighed by its undue prejudicial effect. “ ‘Relevant evidence’
means evidence … 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.)
Defendant’s request to L.F. to retrieve his handgun and other property from their house
was circumstantial evidence tending to show defendant planned to flee. A defendant’s
flight following a crime is circumstantial evidence of a consciousness of guilt. (People v.
Williams (1988) 44 Cal.3d 1127, 1143, fn. 9; People v. Jackson (2005) 129 Cal.App.4th
129, 166, fn. 120; § 1127c.) Indeed, a flight instruction was given to the jury in this case.
The issue of what this evidence meant, and whether it signified a knowledge of guilt, was
a disputed factual issue placed before the jury. The prosecution contended in its closing
arguments that defendant’s request to retrieve property from L.F. was done with the
intent to flee. The evidence was relevant within the meaning of section 210 of the
Evidence Code.
Moreover, defendant has not shown undue prejudice here. The trial court “in its
discretion may exclude evidence if its probative value is substantially outweighed by the
probability that its admission will … create substantial danger of undue prejudice.”
(Evid. Code, § 352.) Undue prejudice refers to the potential for the jury to use a
particular fact to draw an impermissible inference or conclusion. (See, e.g., People v.
Fontana (2010) 49 Cal.4th 351, 370; Evid. Code, § 1101 [prohibiting character evidence
to prove conduct in conformity therewith, but not other facts].) The fact of defendant’s
prior felony convictions was not introduced at trial on counts 1 through 3. Therefore, that
jury—as opposed to the jury seated for the separate trial on count 4—heard nothing to
indicate that defendant’s ownership of a firearm was in any way illegal. Mere ownership
or possession of a firearm, without any indication that such ownership or possession is
illegal, is not prejudicial. (See People v. Beck and Cruz (2019) 8 Cal.5th 548, 599
7.
[“evidence that Beck possessed firearms was not unduly prejudicial since none of the
firearms was illegal or used to shoot any victim”]; id. at 631–632.) The fact that
defendant did not have the weapon within his actual possession differentiates this case
from others in which courts have found that admitting evidence of possession of a deadly
weapon can be construed as character evidence. (See, e.g. People v. Barnwell (2007) 41
Cal.4th 1038, 1056 [“When the prosecution relies on evidence regarding a specific type
of weapon, it is error to admit evidence that other weapons were found in the defendant’s
possession, for such evidence tends to show not that he committed the crime, but only
that he is the sort of person who carries deadly weapons.”]; People v. Henderson (1976)
58 Cal.App.3d 349, 360 [“Evidence of possession of a weapon not used in the crime
charged against a defendant leads logically only to an inference that defendant is the kind
of person who surrounds himself with deadly weapons—a fact of no relevant
consequence to determination of the guilt or innocence of the defendant.”].) Not only did
the jury here receive no evidence suggesting it was illegal for defendant to own a firearm,
the evidence showed he was not actually in physical possession of the firearm at any
point during the incident in question. Therefore, it merely showed defendant owned a
handgun generally. Since mere ownership of a handgun is not illegal, this evidence was
not unduly prejudicial.
C. Even Assuming the Trial Court Erred, Arguendo, Any Error Was
Harmless
Even if we assumed error occurred by admitting evidence that defendant owned a
handgun, any such error was harmless. California law specifically directs harmless error
review in relation to claims that evidence was inappropriately admitted. (Cal. Const., art.
VI, § 13 [“No judgment shall be set aside … on the ground of … the improper admission
… of evidence … unless … the court shall be of the opinion that the error complained of
has resulted in a miscarriage of justice.”]; Evid. Code, § 353, subd. (b).) “In a criminal
case, a miscarriage of justice can only be found when the reviewing court determines it is
8.
reasonably probable that a result more favorable to the defendant would have been
reached had the trial court excluded the erroneously admitted evidence.” (People v.
Lapenias (2021) 67 Cal.App.5th 162, 170; People v. Lazarus (2015) 238 Cal.App.4th
734, 787, fn. 53.)
Any error in admitting evidence that defendant owned a handgun generally was
harmless. There was never a dispute as to whether defendant killed the victim; he
conceded from the start he stabbed the victim with the knife. Defendant was charged
with murder, of which the jury found him not guilty. Instead, the jury found defendant
guilty of the lesser included offense of voluntary manslaughter. Voluntary manslaughter
can arise from an imperfect self-defense argument. (See People v. Rios (2000) 23 Cal.4th
450, 454 [explaining that an imperfect self-defense argument negates the element of
malice, thus limiting the crime to manslaughter].) The jury’s questions in this case
focused on implied malice, and the sole piece of evidence requested by the jury was
Devon’s direct and cross-examination testimony. Devon did not testify about the
existence of the handgun; L.F. did. Both of these, combined with a verdict of voluntary
manslaughter, indicate that the jury accepted that defendant believed he was acting in
self-defense, but did not agree defendant’s beliefs regarding either the danger to himself
or the amount of force necessary were reasonable. (CALCRIM No. 571.) The key area
of inquiry for the jury was the reasonableness of the defendant’s beliefs, not whether or
not he possessed a deadly weapon. Even defendant agreed that he did. Therefore, any
prejudice resulting from erroneous knowledge by the jury that defendant was the type of
person who owned a handgun was minimal. There is no reason to believe defendant’s
mere ownership of a handgun, which was not used or in his physical possession, in any
way affected the jury’s inquiry about the reasonableness of the force used.
II. THE TRIAL COURT ERRED DURING SENTENCING, BUT THE
ERROR WAS HARMLESS
9.
Defendant contends the trial court’s decision to sentence him to the upper term of
11 years on count 1 was based on a consideration of impermissible sentencing factors.
Specifically, defendant contests the trial court improperly concluded (1) that he had not
previously fulfilled his conditions of probation satisfactorily; and (2) that the court was
imposing a concurrent term on count 4 despite being permitted to impose a consecutive
term, without submitting the underlying facts to a jury for a determination beyond a
reasonable doubt.2
A. Standard of Review
Defendant contends the trial court’s sentencing decisions are subject to de novo
review. The People do not specifically address the standard of review, but suggest abuse
of discretion review applies.
Sentencing decisions that involve a discretionary review of different factors are
reviewed for abuse of discretion. (See People v. Sandoval (2007) 41 Cal.4th 825, 847
(Sandoval); People v. Walker (2022) 86 Cal.App.5th 386, 394–95; People v. Downey
(2000) 82 Cal.App.4th 899, 909.) A court abuses its discretion when its determination
“exceeds the bounds of reason, all of the circumstances being considered.” (People v.
Giminez (1975) 14 Cal.3d 68, 72.) “The trial court’s sentencing discretion must be
exercised in a manner that is not arbitrary and capricious, that is consistent with the letter
and spirit of the law, and that is based upon an ‘individualized consideration of the
offense, the offender, and the public interest.’ ” (Sandoval, supra, at p. 847 [quoting
People v. Superior Court (Alvarez) (1997) 14 Cal.4th 968, 978].) A trial court abuses its
discretion if it “relies upon circumstances that are not relevant to the decision or that
2 Defendant initially contended the trial court did not have sufficient evidence before
it to find defendant had “numerous” prior convictions—the third factor in aggravation—
but concedes in the reply brief that there was sufficient evidence for this finding based on
the certified RAP sheet contained in the record below.
10.
otherwise constitute an improper basis for decision,” or if it fails to exercise discretion.
(Sandoval, supra, at pp. 847–848.)
B. The Trial Court Erred by Considering Aggravating Factors Outside
the Statutory Scheme
The California Rules of Court set out various circumstances that can be found in
aggravation of a crime. (See Cal. Rules of Court, rule 4.421.) Of relevance to this case,
the trial court found true the following factors in aggravation and considered them during
sentencing: (1) “[t]he defendant was convicted of other crimes for which consecutive
sentences could have been imposed but for which concurrent sentences are being
imposed”; (2) “[t]he defendant’s prior convictions as an adult or sustained petitions in
juvenile delinquency proceedings are numerous or of increasing seriousness”; and (3)
“[t]he defendant’s prior performance on probation, mandatory supervision, postrelease
community supervision, or parole was unsatisfactory.” (Cal. Rules of Court, rule
4.421(a)(7), (b)(2), and (b)(5).)
Senate Bill No. 567 amended section 1170, subdivision (b), effective January 1,
2022. (Stats. 2021, ch. 731, § 1.3.) Subdivision (b) of section 1170 now states that,
where a sentencing statute provides for three possible terms, the court shall impose a
sentence “not to exceed the middle term,” except when “there are circumstances in
aggravation of the crime that justify the imposition of a term of imprisonment exceeding
the middle term” and the facts underlying those circumstances have either “been
stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial
by the jury or by the judge in a court trial.” (§ 1170, subd. (b)(1)–(2).) However, “the
court may consider the defendant’s prior convictions in determining sentencing based on
a certified record of conviction without submitting the prior convictions to a jury.”
(§ 1170, subd. (b)(3).)
11.
Defendant has withdrawn his contention that the certified records of conviction
presented to the trial court were not sufficient to show he had numerous prior
convictions. Therefore, we do not discuss that issue further.
However, the jury was not asked to, and did not, find defendant’s prior
performance on probation, parole, and postrelease community supervision was
unsatisfactory. This is error, under a plain text reading of the new statutory language,
which requires all facts underlying the circumstances in aggravation to be found true
beyond a reasonable doubt by the jury. (§ 1170, subd. (b)(2).)3 Since no jury determined
defendant’s prior performance on probation was unsatisfactory, the trial court should not
have relied on that factor in aggravation. Relying on a statutory basis for aggravation
which has not been sufficiently proven under the statutory scheme is an abuse of
discretion. (See Sandoval, supra, 41 Cal.4th at 847–848.)
C. Any Error was Harmless
The People contend, regardless of whether there was error, any such error was
harmless. We agree.
This court discussed the harmless error standard in reviewing these claims just last
year. (See People v. Dunn (2022) 81 Cal.App.5th 394, 409–410.) The reviewing court
must determine both “(1)(a) beyond a reasonable doubt whether the jury would have
found one aggravating circumstance true beyond a reasonable doubt” and “(1)(b) whether
there is a reasonable probability that the jury would have found any remaining
aggravating circumstance(s) true beyond a reasonable doubt.” (Ibid.) Step (1)(a) is also
3 It seems unlikely the amendments to section 1170, subdivision (b), require proving
to a jury that a particular crime could have been sentenced consecutively, but is instead
being sentenced concurrently. The question of whether a sentence may be imposed
consecutively or concurrently is, in most cases, likely to be a legal question for the trial
court which has no underlying facts for a jury to determine. If this is the case, then there
would be no error in failing to submit this to the jury. However, because we determine
below that any error arising from failing to prove this to a jury is harmless, we do not
decide that question here.
12.
satisfied where the trial court “relied upon an aggravating circumstance that relied only
upon the fact of defendant’s prior convictions and a certified record of defendant’s
convictions was admitted.” (Id. at p. 410, fn. 13.) “If all aggravating circumstances
relied upon by the trial court would have been proved to the respective standards, any
error was harmless.” (Id. at p. 410.) If this is not the case, the reviewing court then asks
“whether there is a reasonable probability that the trial court would have imposed a
sentence other than the upper term in light of the aggravating circumstances provable
from the record as determined in the prior steps.” (Ibid.) If the answer is no, again, the
error was harmless. If the answer is yes, the reviewing court will vacate the sentence and
remand for resentencing consistent with section 1170, subdivision (b). (See Dunn, supra,
at pp. 409–410.)
Defendant concedes there was sufficient evidence of his prior convictions for the
trial court to find he had “numerous” prior convictions, and has withdrawn his
assignment of error on that point. Accordingly, step (1)(a) of the Dunn test is satisfied.
Under step (1)(b), we must determine whether there is a reasonable probability the
jury would not have found the factual circumstances underlying the remaining factors in
aggravation not true beyond a reasonable doubt. Concerning the factor in aggravation
related to satisfactory completion of prior probation, the jury would have found defendant
had not satisfactorily completed his prior instances of probation. The record shows
defendant was previously sentenced to probation in relation to the following charges: (1)
violation of section 148.9, subdivision (a) (giving a false identity to a peace officer); (2)
violation of Health and Safety Code section 11351.5 (possession for distribution of
cocaine base); (3) violation of Health and Safety Code section 11360, subdivision (a)
(transportation or importation of cannabis); (4) section 273d, subdivision (a) (corporal
punishment or injury of a child); (5) and (6) two separate instances of violating Vehicle
Code section 14601.1, subdivision (a) (driving with a suspended license). A number of
these offenses occurred while defendant was already on probation from a prior offense:
13.
the third offense occurred while he was on probation for the second; the fifth offense
occurred while he was on probation for the fourth; and the sixth offense occurred while
he was on probation for both the fourth and fifth offenses. Additionally, records show
multiple instances of probation violations, including at least one resulting in a 10-day jail
sentence. It strains credulity to suggest this was satisfactory performance while on
probation. There is no reasonable probability the jury would not have found true that
defendant’s prior performance on probation was unsatisfactory beyond a reasonable
doubt.
Additionally, even if it was a jury question, there is no reasonable probability a
jury would not have found true that a consecutive sentence could have been imposed on
defendant in relation to count 4, but the trial court chose to impose a concurrent sentence.
(See Cal. Rules of Court, rule 4.421(a)(7).) Defendant suggests, but does not directly
argue, the trial court was incorrect in determining it would have been justified in
sentencing defendant to a consecutive term on count 4. Because the felon in possession
charge in count 4 was sufficiently different to warrant severing the trials, the crimes were
“predominantly independent of each other,” thereby justifying a consecutive sentence.
(See Cal. Rules of Court, rule 4.425(a)(1); People v. Oseguera (1993) 20 Cal.App.4th
290, 294–295 [finding driving under the influence and being a felon in possession of a
firearm were distinct acts justifying imposition of consecutive sentences].) While we are
skeptical as to whether there are any “facts underlying” the circumstances as
contemplated in section 1170, subdivision (b)(2) in determining whether California Rules
of Court, rule 4.421(a)(7) is a proper factor in aggravation, we need not decide this,
because any error is harmless. There is no reasonable probability the jury would not have
found true any factual circumstance that might underlie that determination. Count 4
could have been sentenced consecutively, and it was not.
DISPOSITION
The judgment is affirmed.
14.
FRANSON, J.
WE CONCUR:
HILL, P. J.
PEÑA, J.
15.