People v. Carmichael CA3

Filed 4/12/22 P. v. Carmichael CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(El Dorado)
----
THE PEOPLE, C089524
Plaintiff and Respondent, (Super. Ct. No. P17CRF0375)
v.
EDDIE WAYNE CARMICHAEL,
Defendant and Appellant.
Defendant Eddie Wayne Carmichael took about $200 worth of merchandise from
a Placerville store, was found out by a store employee, and displayed a hunting knife at
two store employees who tried to prevent him from escaping. He was convicted of
second degree robbery (Pen. Code, § 211)1 with an enhancement for personally using a
deadly weapon (§ 12022, subd. (b)(1)) following a jury trial and pleaded no contest to
1 Undesignated statutory references are to the Penal Code.
1
obstructing an officer (§ 148, subd. (a)(1)). Defendant admitted three strike allegations
(§ 667, subds. (b)-(i)) and four prior prison terms (§ 667.5, subd. (b)) and was sentenced
to 25 years to life plus five years in state prison.
On appeal, defendant contends: (1) the robbery conviction should be reversed
because the record does not show that he was convicted under a legally valid theory;
(2) the matter should be remanded for section 1001.36 diversion proceedings; (3) counsel
was ineffective in failing to investigate the validity of one of the strike priors; (4) it was
an abuse of discretion not to strike any of the strike priors; (5) his sentence constituted
cruel and unusual punishment; (6) his prison priors should be stricken under Senate Bill
No. 136 (2019-2020 Reg. Sess.) (Sen. Bill. No. 136); and, in a supplemental brief, that
the prosecutor committed prejudicial misconduct by misstating the law during argument
to the jury.
Substantial evidence supports the robbery conviction; defendant’s claim relies on
the manner in which the verdicts were rendered and therefore cannot support overturning
his conviction. The mental health diversion claim is forfeited, and the record does not
support the argument that counsel was ineffective in failing to request a section 1001.36
hearing. Likewise, this record does not support the claim that counsel was ineffective in
not investigating one of the strike priors. Agreeing with the contention regarding the
prison priors and rejecting the remaining claims, we shall strike the four prison priors and
affirm the modified conviction.
FACTUAL AND PROCEDURAL BACKGROUND
Prosecution Case
Kristopher Taylor was working as a front-end cashier in a Placerville Grocery
Outlet at around 6:00 p.m. on September 14, 2017, when he saw defendant walking out
of the store with a white garbage bag full of products from the store. Defendant had not
paid for the items, so Taylor followed defendant out of the store and then asked him to
stop. Defendant continued walking away after Taylor made repeated requests for him to
2
stop. When Taylor saw his coworker Melisa Clark at the other end of the parking lot, he
called on her to help with defendant.
Defendant drew an open folding knife and held it over his head. Taylor described
the knife as being three to six inches long with an upwards positioned blade. Defendant
held the knife motionless above his head as he headed toward Clark. He was about 50
feet from Taylor, who had not seen him take out the knife. Upon seeing the knife, Taylor
immediately backed away and told Clark to do the same.
Defendant held the knife over his head for an undetermined time and then ran off.
The bag tore open, and the stolen items dropped out of it as he fled. The bag contained a
little over $200 in store merchandise, all of which was recovered.
Clark was walking to her car when she heard Taylor call out, “Stop him, stop
him.” Defendant was about 40 feet away and running in her direction. He held a fishing
knife above his head and told Clark, “Get out of my way.” She did not believe that
defendant was intentionally waiving the knife at her; the knife happened to be in the hand
defendant waived at her. Clark got out of defendant’s way because it was smart to get
out of the way of a person holding a knife. She did not think defendant was going to stab
her and did not perceive his actions as threatening.
Taylor called the police, and defendant was arrested after a brief foot pursuit. No
knife was found. Defendant executed a Miranda2 waiver and told the police he found the
stolen items in the parking lot but had never possessed any weapons. Defendant said he
ran because he was intoxicated and worried that he might have something on him he
should not have. He did not seem intoxicated to the interrogating officer.
2 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
3
Defense
Testifying on his own behalf, defendant said he was homeless and had been
drinking a pint of vodka and some malt liquor before the incident. He eventually went to
the Grocery Outlet, where he first talked to a clerk and the clerk’s wife in the parking lot
before entering the store. Defendant shoplifted batteries and duct tape from the store
without incident two times that night. During the second incident, defendant heard
Taylor call out to him, but defendant kept walking away.
Defendant kept a folding knife in his pocket with the blade open for protection
because he lived in a homeless camp. The knife fell out of his pocket while he was
running from the store. Defendant picked up the knife and tried to hide it from Clark by
closing the knife and putting it in his pocket. He never talked to anyone during this
incident and had not intended to threaten either Clark or Taylor. He had just forgotten
about the knife, which he eventually threw away.
Defendant ran from the police because he was guilty of shoplifting batteries, and
not because he had committed a robbery. He admitted lying to the police and that his
intoxication probably affected his perception of the events. Defendant nonetheless
maintained he never waived the knife at Clark, never held it over his head, and did not
intend to use the knife to get away with the stolen merchandise.
DISCUSSION
I
Theory of Robbery
Defendant contends his robbery conviction must be reversed because the jury
found him guilty under a legally invalid theory.
“Robbery is the felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
force or fear.” (§ 211.)
4
The prosecution relied on the theory that defendant committed the robbery by
displaying the knife to cause fear in Taylor and Clark. “ ‘ “The element of fear for
purposes of robbery is satisfied when there is sufficient fear to cause the victim to comply
with the unlawful demand for [her] property.” ’ [Citation.] ‘The extent of the victim’s
fear “do[es] not need to be extreme . . . .” ’ ‘[T]he fear necessary for robbery is
subjective in nature, requiring proof “that the victim was in fact afraid, and that such fear
allowed the crime to be accomplished.” ’ [Citation.] ‘Actual fear may be inferred from
the circumstances, and need not be testified to explicitly by the victim.’ [Citation.]
‘ “ ‘Where intimidation is relied upon, it [can] be established by proof of conduct, words,
or circumstances reasonably calculated to produce fear.’ ” ’ [Citations.]” (People v.
Bordelon (2008) 162 Cal.App.4th 1311, 1319.) A robbery occurs when a person uses
force or fear in an attempt to facilitate the perpetrator’s escape, regardless of how the
property was originally obtained. (People v. Gomez (2008) 43 Cal.4th 249, 265.)
Shortly after deliberation began, the jury asked for read-backs of Taylor’s
testimony and requested clarification regarding the intent necessary to prove force or
fear. The jury also asked for a legal definition of “[d]isplays the weapon in a menacing
manner.” The trial court answered this question by referring the jury to CALCRIM
No. 200, which informed the jury that words and phrases not specifically defined by the
court were to be given their ordinary, everyday meanings.
Near the end of the first day of deliberation, the jury informed the trial court it had
reached a guilty verdict on robbery but was not able to unanimously agree regarding the
personal use of a weapon allegation. This prompted the court to allow additional
argument on the allegation. Defense counsel remarked the jury’s confusion was linked to
the guilty verdict on the robbery count. The jury reached a true finding on the weapon
enhancement following the additional argument.
Defendant claims the jury’s initial inability to reach a decision regarding the
weapon enhancement completely undercuts its finding regarding the fear element of
5
robbery. The jury was instructed with CALCRIM No. 3145 that in order to sustain a true
finding on the weapon enhancement, it had to find that defendant “[d]isplays the weapon
in a menacing manner.” Defendant reasons that if at the time the jury reached the guilty
verdict on the robbery count, it could not determine whether defendant displayed the
knife in a menacing manner, the jury must have found him guilty of robbery under some
theory not involving the menacing display of the knife. While the jury eventually came
to a true finding on the weapon enhancement, defendant correctly notes that every verdict
“rises or falls on its own.” (People v. Guzman (2011) 201 Cal.App.4th 1090, 1095,
fn. 3.) He finds the jury’s questions before the robbery verdict further support the
inference that it had trouble determining whether the knife was displayed menacingly.
Since there was no other valid theory of guilt other than defendant using the knife to
induce fear, defendant concludes the guilty verdict is based on a legally invalid theory
and must be reversed.
“The law generally accepts inconsistent verdicts as an occasionally inevitable, if
not entirely satisfying, consequence of a criminal justice system that gives defendants the
benefit of a reasonable doubt as to guilt, and juries the power to acquit whatever the
evidence.” (People v. Palmer (2001) 24 Cal.4th 856, 860.) It is therefore the “general
rule” that inconsistent verdicts shall stand. (People v. Lewis (2001) 25 Cal.4th 610, 656.)
“An inconsistency may show no more than jury lenity, compromise, or mistake, none of
which undermines the validity of a verdict. [Citations.]” (Ibid.)
Defendant does not contend there was juror misconduct, which would be a valid
reason to undermine the verdict. (People v. Cissna (2010) 182 Cal.App.4th 1105, 1116.)
Nor does (or can) defendant claim there is insufficient evidence to support the guilty
verdict on the robbery count. Defendant’s display of the knife and the store employees’
decisions to break off pursuit as a result of this display, is a substantial element
supporting the fear element of the crime.
6
Had the verdicts been actually inconsistent, with a guilty verdict on robbery and a
not true finding on the weapon enhancement, the robbery verdict would stand under the
general rule allowing for inconsistent verdicts. Here, where the verdicts are consistent
albeit reached at different times, there is even less reason to depart from the general rule.
Since there is no valid reason to disregard the guilty verdict on the robbery charge,
defendant’s contention is without merit.
II
Section 1001.36
Defendant contends he is entitled to remand for the trial court to consider pretrial
diversion under section 1001.36.
As noted by California Supreme Court, section 1001.36 became effective
immediately as part of the 2018 budget bill. (People v. Frahs (2020) 9 Cal.5th 618, 626.)
Thus, section 1001.36 was effective on June 27, 2018. (See Credits, 50a pt. 1 West’s
Ann. Pen. Code (2020 supp.) foll. § 1001.36, p. 9.) While defendant was initially
charged via information before the law took effect on December 19, 2017, an amended
information was filed on June 15, 2018, and all further proceedings likewise took place
after section 1001.36 took effect.
The record does not show that defendant’s trial attorney made any motion for
pretrial diversion under the existing statute. Because defendant’s attorney failed to bring
a timely motion for pretrial diversion under section 1001.36, the issue has not been
preserved for appeal. “ ‘ “[N]o procedural principle is more familiar to this Court than
that a constitutional right,” or a right of any other sort, “may be forfeited in criminal as
well as civil cases by the failure to make timely assertion of the right before a tribunal
having jurisdiction to determine it.” ’ [Citation.]” (In re Sheena K. (2007) 40 Cal.4th
875, 880-881.)
7
Anticipating our ruling, defendant asserts counsel was ineffective in failing to seek
diversion.3
“A criminal defendant’s federal and state constitutional rights to counsel (U.S.
Const., 6th Amend.; Cal. Const., art. I, § 15) include the right to effective legal assistance.
When challenging a conviction on grounds of ineffective assistance, the defendant must
demonstrate counsel’s inadequacy.” (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).)
Defendant also bears the burden on appeal of showing prejudice from the substandard
representation. (People v. Centeno (2014) 60 Cal.4th 659, 676.) “When examining an
ineffective assistance claim, a reviewing court defers to counsel’s reasonable tactical
decisions, and there is a presumption counsel acted within the wide range of reasonable
professional assistance. It is particularly difficult to prevail on an appellate claim of
ineffective assistance.” (Mai, at p. 1009, italics omitted.) “ ‘ “[I]f the record on appeal
sheds no light on why counsel acted or failed to act in the manner challenged[,] . . . unless
counsel was asked for an explanation and failed to provide one, or unless there simply
could be no satisfactory explanation,” the claim on appeal must be rejected.’ [Citations.]
A claim of ineffective assistance in such a case is more appropriately decided in a habeas
corpus proceeding. [Citations.]” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-
267 (Mendoza Tello).)
On this record, defendant cannot meet his burden of affirmatively demonstrating
error. The record sheds no light on why trial counsel did not request diversion pursuant
to section 1001.36. It does, however, indicate that defendant’s trial counsel could have
had satisfactory explanations for not doing so, namely that defendant would not qualify
for diversion. For example, diversion requires a showing that a diagnosed mental
disorder, as described in section 1001.36, subdivision (b)(1)(A) was a “significant factor”
3 Defendant raises several claims of ineffective assistance in different contexts. We
apply the same standard of review, as stated in this section, to each claim.
8
in the commission of the crime. (§ 1001.36, subd. (b)(1)(B).) Although defendant
testified at trial that he was an “extreme alcoholic” and had consumed alcohol to the point
of intoxication before the robbery, this does not necessarily satisfy the requirements of
section 1001.36, subdivision (b)(1)(B).
Moreover, in order to be eligible for mental health diversion, defendant had to
demonstrate that the mental disorder motivating the criminal behavior would respond to
mental health treatment, defendant would agree to comply with treatment, and defendant
would “not pose an unreasonable risk of danger to public safety” if treated within the
community rather than being incarcerated. (See § 1001.36, subd. (b)(1)(C), (E), & (F).)
The probation report relates that defendant was attending New Beginnings after his
release from Folsom State Prison, and, while defendant reported doing well following his
release, he relapsed about three years ago when he thought he could manage to use
methamphetamine on a single occasion. This quickly led to daily alcohol use, loss of his
job, and homelessness. Given defendant’s extensive criminal history which includes
multiple prison sentences and three prior strike convictions starting in 1978, the record
does not establish defendant’s eligibility for relief under these statutory requirements.
Therefore, on this record, defendant’s ineffective assistance claim must be denied.
(Mai, supra, 57 Cal.4th at p. 1009; Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.) If
there is extra record evidence that defense counsel was indeed ineffective in failing to
seek section 1001.36 diversion, defendant may pursue his claim through a writ of habeas
corpus. (See Mai, at p. 1009; Mendoza Tello, at pp. 266-267.)
III
Investigating Strike Prior
Defendant contends counsel was ineffective in failing to investigate whether his
1988 conviction for violating section 245, subdivision (a)(1) was in fact a serious felony
and therefore a strike.
9
In 1988, section 245, subdivision (a)(1) applied to “assault upon the person of
another with a deadly weapon or instrument other than a firearm or by any means of force
likely to produce great bodily injury.” (Stats 1983 ch. 1092 § 253.) While assault with a
deadly weapon is a strike, assault by means likely to produce great bodily injury is not.
(People v. Delgado (2008) 43 Cal.4th 1059, 1065.)
Defendant’s claim of ineffective assistance fails here for the same reason it did
regarding section 1001.36 diversion. The record here, the abstract of the 1988
conviction, shows a 1988 conviction for violating section 245, subdivision (a)(1) and no
more. While this would be insufficient evidence to sustain a strike allegation, defendant
admitted the strike priors after consultation with counsel, thereby admitting that the
conviction qualified as a strike.
Defendant’s argument assumes trial counsel did not investigate the 1988 prior
conviction and that investigation would show the conviction was for assault by means
likely to produce great bodily injury rather than assault with a deadly weapon. Neither
assumption has any basis in the record. Counsel could have investigated the prior
conviction and determined it was a strike or could have come to this conclusion after
consulting with defendant. As with the prior ineffective assistance claim, if defendant
obtains information not in this record supporting the claim that the 1988 prior conviction
is not a strike, he may seek relief through habeas. Based on the record before us, he is
not entitled to relief on appeal.
IV
Romero Motion
Defendant next contends the trial court abused its discretion in denying his motion
to dismiss one or more of the strike priors pursuant to People v. Superior Court (Romero)
10
(1996) 13 Cal.4th 497 (Romero).4 He claims that the age of the strike priors and the
circumstances of his present conviction demonstrate the interests of justice would have
been served by granting his motion. We are not convinced.
A trial court has the discretion to dismiss strike conviction allegations in the
interests of justice under section 1385, subdivision (a). (Romero, supra, 13 Cal.4th at
p. 504.) In deciding whether to exercise its discretion to dismiss strike allegations, the
trial court must determine whether the defendant should be deemed outside the spirit of
the three strikes law “and hence should be treated as though he had not previously been
convicted of one or more serious and/or violent felonies.” (People v. Williams (1998)
17 Cal.4th 148, 161.) In making this determination, the court must consider three factors:
(1) the nature and circumstances of his present felonies; (2) the nature and circumstances
of his strike offenses; and (3) the particulars of the defendant’s background, character,
and prospects for the future. (Ibid.)
We review the trial court’s decision for abuse of discretion. (People v. Carmony
(2004) 33 Cal.4th 367, 374.) “In reviewing for abuse of discretion, we are guided by two
fundamental precepts. First, ‘ “[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.” ’ [Citations.] Second, a ‘ “decision will not be reversed
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.] Taken together, these precepts establish that a trial court does not
4 The trial court denied the Romero motion in a pretrial proceeding and again at
sentencing.
11
abuse its discretion unless its decision is so irrational or arbitrary that no reasonable
person could agree with it.” (Id. at pp. 376-377.)
Defendant’s three strike priors are old, a robbery with use of a firearm conviction
in 1984, the 1988 aggravated assault conviction, and a first degree burglary conviction in
1989. Defendant also has a 1978 juvenile adjudication for assault with a deadly weapon
and a 2001 conviction for possession with intent to manufacture methamphetamine
(former Health & Saf. Code, § 11383, subd. (c)(1)), with the latter being subject to a
three strikes sentence until defendant obtained relief pursuant to section 1170.126. He
has spent most of the 40 years since his criminal record started either incarcerated, on
probation, or on parole.5 Although defendant’s current conviction is not the most
egregious robbery we have seen, it is nonetheless a serious and violent felony in which
defendant personally used a deadly weapon.
Defendant’s reliance on the jury’s initial difficulty to reach a verdict on the
weapon enhancement is unpersuasive. The jury sustained the enhancement allegation
and there is ample evidence to support the true finding. Defendant’s argument that there
is nothing in the record to suggest he would continue to commit serious or violent
felonies or present a danger to the community is belied by his extensive criminal record
and his current conviction for a violent felony. In light of defendant’s criminal history
and his current offense, it was within the trial court’s discretion to deny the Romero
motion.
V
Sentence Proportionality
Defendant claims his 30-year sentence is grossly disproportionate and therefore in
violation of the state and federal constitutions. Although defendant did not raise this
5 The current crime was committed while defendant was on probation in another case.
12
claim in the trial court, we address the claim on the merits in spite of the forfeiture since
defendant also raises a claim of ineffective assistance of counsel.
The Eighth Amendment to the United States Constitution proscribes “cruel and
unusual punishment” and “contains a ‘narrow proportionality principle’ that ‘applies to
noncapital sentences.’ [Citation.]” (Ewing v. California (2003) 538 U.S. 11, 20
[155 L.Ed.2d 108, 117] (Ewing); Lockyer v. Andrade (2003) 538 U.S. 63, 72
[155 L.Ed.2d 144, 155-156] (Lockyer).) While this proportionality principle “ ‘does not
require strict proportionality between crime and sentence,’ ” it does prohibit “ ‘extreme
sentences that are “grossly disproportionate” to the crime.’ [Citation.]” (Ewing, at
p. 23.) “Outside the context of capital punishment, successful challenges to the
proportionality of particular sentences have been exceedingly rare.” (Rummel v. Estelle
(1980) 445 U.S. 263, 272 [63 L.Ed.2d 382] (Rummel).)
Similarly, the California Constitution prohibits “cruel or unusual punishment.”
(Cal. Const., art. I, § 17.) A punishment may violate this provision “although not cruel or
unusual in its method, [if] it is so disproportionate to the crime for which it is inflicted
that it shocks the conscience and offends fundamental notions of human dignity.” (In re
Lynch (1972) 8 Cal.3d 410, 424 .) In Lynch, our Supreme Court described three
“techniques” the courts have used to administer the California Constitution’s prohibition
against cruel or unusual punishment: (1) an examination of the nature of the offense
and/or the offender with particular regard to the degree of danger both present to society;
(2) a comparison of the challenged penalty with the punishments prescribed for more
serious offenses in the same jurisdiction, and (3) a comparison of the challenged penalty
with the punishments prescribed for the same offense in other jurisdictions having an
identical or similar constitutional provision. (Id. at pp. 425-427.) “A defendant has a
considerable burden to overcome when he [or she] challenges a penalty as cruel or
unusual. The doctrine of separation of powers is firmly entrenched in the law of
California and the court should not lightly encroach on matters which are uniquely in the
13
domain of the Legislature. We must always be aware that it is the function of the
legislative branch to define crimes and prescribe punishment. [Citations.]” (People v.
Bestelmeyer (1985) 166 Cal.App.3d 520, 529.)
Defendant asserts his punishment violates the state and federal constitutional
prohibition against punishment that is grossly disproportionate to the offense and the
offender’s culpability. Not so.
To determine whether the current punishment may be considered cruel or unusual
punishment, it is necessary to describe what is not. Sentencing an offender to a life
sentence was not cruel and unusual punishment for fraudulent use of a credit card,
passing a forged check, and “ ‘felony theft,’ ” all crimes totaling approximately $300.
(Rummel, supra, 445 U.S. at pp. 264-266.) Under the California Constitution, the
imposition of a 61-year-to-life term for an offender convicted of two counts of residential
burglary with two prior convictions for the same offense was not cruel or unusual
punishment. (People v. Ingram (1995) 40 Cal.App.4th 1397, 1401, 1415-1416,
disapproved on another ground in People v. Dotson (1997) 16 Cal.4th 547, 559, 560,
fn. 8.) A sentence of 25 years to life for a felon in possession of a handgun who had two
prior robbery convictions was not cruel or unusual punishment. (People v. Cooper
(1996) 43 Cal.App.4th 815, 819, 828.) Under California’s three strikes law, it was not
cruel and unusual punishment to sentence a recidivist criminal to 25 years to life for
stealing three golf clubs. (Ewing, supra, 538 U.S. at pp. 11, 30-31.) Decided on the
same day, the court in Lockyer held that under California’s three strikes law, two
consecutive terms of 25 years to life were not cruel and unusual punishment for two
counts of petty theft. In response to Justice Souter’s dissent that this sentence was
equivalent to a life term without the possibility of parole, the court noted the “argument
. . . misses the point. Based on our precedents, the state court decision was not contrary
to, or an unreasonable application of, our clearly established law.” (Lockyer, supra,
538 U.S. at p. 74, fn. 1.)
14
Defendant asserts the penalty is grossly disproportionate to the current offense
because no force or violence was used in the robbery, and the sentence significantly
exceeds that imposed for similar offenses in California and other states. The first
argument ignores the fact that defendant used the threat inherent in his display of a
deadly weapon, the knife, to complete his theft from the store. That crime, robbery, is a
crime of violence classified as a violent felony in this state. (§ 667.5, subd. (c)(9).)
Defendant’s second contention underplays his recidivism. He has a lengthy history of
lawbreaking that included three prior strikes and had been previously sentenced to a three
strikes sentence but was granted early release under section 1170.126. Defendants with
less culpable current offenses have received similar, constitutionally valid sentences as
defendant based on their criminal history. The same is true here.
Defendant’s sentence is long but it “reflects a rational legislative judgment,
entitled to deference, that offenders who have committed serious or violent felonies and
who continue to commit felonies must be incapacitated.” (Ewing, supra, 538 U.S. at
p. 30.) Defendant, like the defendant in Ewing, has an extensive history of felony
recidivism. He has not shown his case to be so extraordinary that it constitutes a
constitutional violation. He is a career criminal who has been sentenced in accordance
with the intention of the three strikes law, which punishes not only for the trigger offense
but also for his status of having committed “ ‘repeated criminal acts that have shown that
[the offender is] simply incapable of conforming to the norms of society as established by
its criminal law.’ [Citation.]” (Id. at p. 29.) It follows from precedent, the
proportionality principle, and the Legislature’s intent, that defendant’s punishment does
not violate the state or federal prohibition against grossly disproportionate punishment.
15
VI
Senate Bill No. 136
Defendant contends and the Attorney General correctly concedes that his four
prior prison term enhancements must be stricken in light of legislation taking effect after
his sentencing, Sen. Bill No. 136.
Generally speaking, new criminal legislation is presumed to apply prospectively
unless the statute expressly declares a contrary intent. (§ 3.) However, where the
Legislature has reduced punishment for criminal conduct, an inference arises under In re
Estrada (1965) 63 Cal.2d 740, “ ‘that, in the absence of contrary indications, a legislative
body ordinarily intends for ameliorative changes to the criminal law to extend as broadly
as possible, distinguishing only as necessary between sentences that are final and
sentences that are not.’ [Citations.]” (People v. Superior Court (Lara) (2018) 4 Cal.5th
299, 308.) “A new law mitigates or lessens punishment when it either mandates
reduction of a sentence or grants a trial court the discretion to do so. [Citation.]”
(People v. Hurlic (2018) 25 Cal.App.5th 50, 56.)
Sen. Bill No. 136 narrowed who was eligible for a section 667.5, subdivision (b)
prior prison term enhancement. There is nothing in the bill or its associated legislative
history that indicates an intent that the court not apply this amendment to all individuals
whose sentences are not yet final. Under these circumstances, we find that Estrada’s
inference of retroactive application applies. (Accord, People v. Lopez (2019)
42 Cal.App.5th 337, 340-342 [Sen. Bill No. 136 applies retroactively to cases not yet
final on appeal]; People v. Jennings (2019) 42 Cal.App.5th 664, 680-682 [same].)
Accordingly, the prison priors shall be stricken. Since the trial court already imposed the
maximum possible term, remand for resentencing is unnecessary.6
6 We reject defendant’s claim in a second supplemental brief that he is entitled to the
benefits of Senate Bill No. 81 (2021-2022 Reg. Sess.) (Sen. Bill No. 81). Sen. Bill
16
VII
Prosecutor Argument: Jury Deliberations
In a supplemental brief, defendant contends trial counsel was prejudicially
ineffective in failing to object to statements made by the prosecutor during closing
argument regarding jury deliberations.
Without objection, the prosecutor made the following statement during closing
argument:
“We had or heard instructions, confusing instructions I think we can all agree,
regarding lesser included offenses towards the end of that long packet of instructions the
judge read to you. This is what you really need to know about petty theft, which is a
lesser included offense of robbery. It has the same exact elements as robbery, 1 through
4, that I went over to [sic] you earlier except it does not require force or fear.
“So, in other words, if you find beyond a reasonable doubt 1 through 4 but you all
agree no force or fear was used, you can then move on to the lesser of petty theft and
decide whether he was guilty or not guilty of the that lesser. That’s how that works.
“Again, lesser included offenses, petty theft is a lesser of robbery. Remember,
with lessers, and it will be in the instructions given to you, you are not even allowed to
consider lessers unless you all agree not guilty on the greater crime. That doesn’t mean,
well, half of you think he’s guilty of robbery and half of you say no, let’s move on to the
lesser. That’s not how that works.
No. 81 amends section 1385 to allow the trial court to dismiss any enhancement in the
interests of justice unless prohibited by initiative, specified the factors the court should
take into consideration, and mandated that great weight be given to certain mitigating
factors when determining whether to strike an enhancement. (§ 1385, subd. (c); Stats
2021 ch. 721 § 1.) However, “[t]his subdivision shall apply to sentencings occurring
after the effective date of the act that added this subdivision.” (§ 1385, subd. (c)(7).)
Since defendant is not entitled to resentencing, the changes enacted by Sen. Bill No. 81
are inapplicable to this case.
17
“If you can’t reach a verdict on robbery, you just don’t sign any verdict forms and
give it to the Judge.
“Only if you all agree not guilty and sign not guilty for robbery can you even
move and consider the lesser, if that makes sense.”
Since the failure to object generally forfeits a claim of prosecutorial misconduct
(People v. Seumanu (2015) 61 Cal.4th 1293, 1328) defendant instead argues counsel was
ineffective. According to defendant, the prosecutor’s argument misstated the law by
telling the jury it must first address the robbery charge before proceeding to the lesser
included offense, and this misstatement prejudiced him because the key issue in the case
was whether the display of the knife was sufficient to make this a robbery rather than a
petty theft.
It is misconduct for the prosecutor to misstate the law to the jury. (People v. Otero
(2012) 210 Cal.App.4th 865, 870-871.) [A]rguments of counsel ‘generally carry less
weight with a jury than do instructions from the court. The former are usually billed in
advance to the jury as matters of argument, not evidence [citation], and are likely viewed
as the statements of advocates; the latter, we have often recognized, are viewed as
definitive and binding statements of the law.’ [Citation.]” (People v. Mendoza (2007)
42 Cal.4th 686, 703.) “When argument runs counter to instructions given a jury, we will
ordinarily conclude that the jury followed the latter and disregarded the former, for ‘[w]e
presume that jurors treat the court’s instructions as a statement of the law by a judge, and
the prosecutor’s comments as words spoken by an advocate in an attempt to persuade.’
[Citation.]” (People v. Osband (1996) 13 Cal.4th 622, 717.)
A trial court is authorized to give “ an instruction that the jury may not return a
verdict on the lesser offense unless it has agreed beyond a reasonable doubt that
defendant is not guilty of the greater crime charged, but it should not be interpreted to
prohibit a jury from considering or discussing the lesser offenses before returning a
verdict on the greater offense.” (People v. Kurtzman (1988) 46 Cal.3d 322, 329;
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People v. Dennis (1998) 17 Cal.4th 468, 536 [“a court may restrict a jury from returning
a verdict on a lesser included offense before acquitting on a greater offense, but may not
preclude it from considering lesser offenses during deliberations”].)
People v. Speight (2014) 227 Cal.App.4th 1229 addressed an argument similar to
the one at issue here. The prosecutor argued in rebuttal, “ ‘in order to get to voluntary
manslaughter, you would all have to agree that [Speight], when he chased after the
victims and they are running for their lives and he shot them, you would have to all find
him not guilty of attempted murder.’ ” (Id. at p. 1240.) The trial court overruled the
defense objection because the argument correctly stated the law. (Ibid.) The Court of
Appeal found the argument did not misstate the law: “We do not, however, read the
prosecutor’s statements to forbid the jury from considering attempted voluntary
manslaughter until they concluded defendant was not guilty of attempted murder. Nor do
we read her statements as an attempt to somehow lessen her burden of proof. Read in
their totality, we conclude the prosecutor simply informed the jury that to convict Speight
of attempted voluntary manslaughter it had to first conclude he was not guilty of
attempted murder.” (Id. at p. 1242.)
The trial court instructed the jury with CALCRIM No. 3517, which informed the
jury that if it found defendant not guilty of the greater charged crime it may find him
guilty of the lesser included offense, and: “It is up to you to decide the order in which
you consider each crime and the relevant evidence, but I can accept a verdict of guilty of
a lesser crime only if you found the defendant not guilty of the corresponding greater
crime.”
To the extent the prosecutor’s argument told the jury it must first assess guilt on
the robbery charge, that directly contradicts the trial court’s instruction and we presume
the jury followed the court’s directive on the appropriate law rather than the prosecutor’s
argument. The argument that the jury must acquit on the robbery charge before reaching
a verdict on the lesser included offense of petty theft correctly states the law, as noted in
19
People v. Speight, supra, 227 Cal.App.4th 1229. Finding the argument either correctly
stated the law or did not prejudice defendant, we conclude defendant has failed to carry
his burden of establishing ineffective assistance of counsel.
VIII
Prosecutor Argument: Mental Element of the Deadly Weapon Enhancement
The prosecutor made the following statement during supplemental argument on
the weapon enhancement: “Displaying a weapon in a menacing manner, given its
ordinary, plain everyday meaning, which was given to you in CALCRIM [No.] 200
yesterday, menacing is threatening. It’s not intentionally threatening. This is a general
intent crime, which means that somebody merely has to do the act and intend to do the
act. They don’t have to intend for it to be threatening, they just have to do an act that is
threatening.” Defense counsel did not object.
Defendant contends this misstated the law regarding the mental element for the
section and counsel was ineffective in failing to object. He finds the argument an
incorrect statement of the law because, in order to use a weapon, the evidence must show
“something more than merely being armed.” (People v. Chambers (1972) 7 Cal.3d 666,
672; see People v. Smit (2014) 224 Cal.App.4th 977, 987 [noting different penalties for
merely being armed and for using a weapon].) Not so.
“ ‘When the definition of a crime [or enhancement] consists of only the
description of a particular act, without reference to intent to do a further act or achieve a
future consequence, we ask whether the defendant intended to do the proscribed act. This
intention is deemed to be a general criminal intent. When the definition refers to
defendant’s intent to do some further act or achieve some additional consequence, the
crime [or enhancement] is deemed to be one of specific intent.’ [Citation]” (People v.
Atkins (2001) 25 Cal.4th 76, 82; see People v. Wardell (2008) 162 Cal.App.4th 1484,
1494 [applying Atkins to § 12022.5, subdivision (a) personal use of a firearm
enhancement].)
20
The section 12022 enhancement applies to any “person who personally uses a
deadly or dangerous weapon in the commission of a felony or attempted felony . . . .”
(§ 12022, subd. (b)(1).) It is therefore a general intent crime. The prosecutor’s argument
correctly described the mental element of the enhancement as general intent and correctly
told the jury it was to give the ordinary meaning to the term “menacing.” While the
prosecutor stated menacing was not intentionally threatening, read in the context of the
entire argument, it does no more than correctly refer to the enhancement as having a
general criminal intent rather than a specific intent to threaten.
Since the argument correctly stated the law, counsel was not ineffective in
declining to object. “Counsel is not ineffective for failing to make frivolous or futile
motions.” (People v. Thompson (2010) 49 Cal.4th 79, 122.) Such is the case here.
DISPOSITION
The prior prison term enhancements (§ 667.5, subd. (b)) are stricken. As
modified, the judgment is affirmed. The trial court is directed to provide an amended
abstract of judgment reflecting the modified conviction and to forward a certified copy to
the Department of Corrections and Rehabilitation.
\s\ ,
BLEASE, Acting P. J.
We concur:
\s\ ,
HULL, J.
\s\ ,
ROBIE, J.
21