People v. Williams CA2/4

Filed 5/30/23 P. v. Williams CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B319313
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. PA094370)
v.
JAMES TERRY WILLIAMS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County,
Michael Terrell, Judge. Reversed and remanded for resentencing.
Aurora Elizabeth Bewicke, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Steven
D. Matthews, Supervising Deputy Attorney General, and Yun K. Lee, Deputy
Attorney General, for Plaintiff and Respondent.
INTRODUCTION
In March 2022, a jury found defendant James Terry Williams guilty of
felony evasion (Veh. Code, § 2800.2). The jury also found true the allegation
that the offense involved great violence, great bodily harm, threat of great
bodily harm, or other acts disclosing a high degree of cruelty, viciousness, or
callousness. (Cal. Rules of Court, rule 4.421(a)(1)).1 Defendant contends the
trial court erred at sentencing in imposing the upper term based on the
aggravating circumstance of “great bodily harm” as well as the court’s finding
that defendant committed perjury during his testimony at trial. Because we
cannot conclude that either factor was found to be true beyond a reasonable
doubt by the jury, as required by Penal Code section 1170, subdivision (b)(2)
(hereafter section 1170(b)(2)),2 we agree that the trial court erred in imposing
the upper term. Finding the error prejudicial, we reverse the judgment and
remand for further proceedings.
STATEMENT OF FACTS
1. Prosecution’s Evidence
On March 7, 2020, around 3:00 a.m., California Highway Patrol (CHP)
Sergeant Jonathan Yochim was parked in his patrol vehicle monitoring
traffic when he observed defendant’s vehicle speed by at 115 miles per hour.
Sergeant Yochim immediately began his pursuit of defendant.
While in pursuit, Sergeant Yochim observed defendant make a left turn
against a red arrow. Sergeant Yochim then activated his overhead
1 All further references to rules are to the California Rules of Court.
2 All further statutory references are to the Penal Code unless otherwise
stated.
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emergency lights. When defendant did not pull his vehicle over, Sergeant
Yochim activated his siren. Defendant turned at the next intersection into an
apartment complex. Defendant was aggressively accelerating and braking,
attempting to get away from the CHP vehicle.
After a total of three loops around the apartment complex, defendant
exited with Sergeant Yochim still in pursuit. Defendant was accelerating at
approximately 50 to 60 miles per hour before braking hard and making an
aggressive U-turn. Defendant accelerated away from the CHP vehicle, at
about 90 miles per hour. At that point, defendant was driving on the wrong
side of the roadway and ended up colliding with a parked vehicle.
Matthew Pleitez was sitting in that parked vehicle with two of his
friends. At the time of impact, Pleitez hit his head on the windshield, causing
the windshield to crack. Pleitez did not “really remember anything after” the
crash. He was subsequently taken to the hospital and received stitches on
his bottom lip.
After the crash, defendant continued driving another 40 or 50 feet
before his vehicle came to a stop. When defendant exited his vehicle, he was
arrested by Sergeant Yochim. According to Sergeant Yochim, defendant did
not appear to have an altered mental state. Based on defendant’s driving,
Sergeant Yochim opined that defendant violated multiple Vehicle Code
sections, and all these violations would make defendant eligible for a traffic
violation point.
2. Defense Evidence
In the evening of March 6, 2020, defendant went to visit his friend
Latasha Bradley. Defendant was experiencing tooth pain and asked Bradley
if she had any pain medication. Bradley directed defendant to the bathroom,
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and he took one, possibly two, pills from a bottle labeled “pain” medication.
At the time, Bradley’s bathroom contained the following medications:
Tylenol, Oxycodone, Xanax, and Lexapro. Soon after, defendant got “sweaty,”
felt scared, and “just wanted to get home.” Defendant did not recall getting
into or out of his vehicle, but remembers driving “a little bit.” He testified
that he “felt safe” when he saw the CHP officer.
PROCEDURAL SUMMARY
On March 14, 2022, defendant was charged in a second amended
information with one count of felony evasion (Veh. Code, § 2800.2; count 1).
The information further alleged that defendant had suffered a prior strike
within the meaning of the Three Strikes law (§§ 667, subds. (b)–(j), 1170.12).
In response to then-recent amendments to section 1170(b)(2), the prosecution
had amended the information to allege the following aggravating
circumstances to justify imposition of the upper sentencing term: the crime
involved great violence, great bodily harm, threat of great bodily harm, and
other acts disclosing a high degree of cruelty, viciousness, and callousness
(rule 4.421(a)(1)); defendant suffered four prior convictions as an adult and
sustained petitions in juvenile delinquency proceedings that were numerous
and of increasing seriousness (rule 4.421(b)(2)); and defendant served a prior
prison and jail term in four cases (rule 4.421(b)(3)).3
On March 21, 2022, the jury found defendant guilty of felony evasion
and found true that the offense involved great violence, great bodily harm,
threat of great bodily harm, or other acts disclosing a high degree of cruelty,
3 The information alleged another aggravating circumstance under rule
4.421(a)(7), which was later dismissed at the prosecution’s request.
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viciousness, or callousness. On March 24, 2022, in a bifurcated proceeding,
the court found true the prior strike allegation.
The court sentenced defendant to the upper term of three years for
felony evasion, doubled for the prior strike, for a total of six years in state
prison. In imposing the upper term, the court stated it relied on the fact that
(1) the offense involved great bodily harm, and (2) the defendant committed
perjury during his testimony.
Defendant filed a timely notice of appeal.
DISCUSSION
Most convicted felons in California receive a determinant sentence
based on a triad sentence structure; with lower, middle, and upper terms.
Effective January 1, 2022, our Legislature amended section 1170(b)(2) to
allow the trial court to impose the upper term only when there are
circumstances in aggravation of the offense that justify a term of
imprisonment exceeding the middle term and the facts underlying those
circumstances have been stipulated to by the defendant or found true beyond
a reasonable doubt at trial by the jury or by the court in a bench trial.
Defendant contends the trial court erred in imposing the upper term
based on a finding of great bodily harm, given the court had combined four
aggravating circumstances under rule 4.421(a)(1)—great violence, great
bodily harm, threat of great bodily harm, or other acts disclosing a high
degree of cruelty, viciousness, or callousness—into a single jury instruction
without giving the jury a unanimity instruction. In response, the Attorney
General argues that the aggravating circumstance under rule 4.421(a)(1)
merely “lists four ways a single factor could be found true.” Alternatively, the
Attorney General asserts any error was harmless.
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Defendant also contends the trial court’s finding that defendant
committed perjury does not provide an alternative basis to support the upper
term because the jury never made such a finding beyond a reasonable doubt.
The Attorney General does not dispute that the court’s own finding that
defendant committed perjury to support the upper term was error, but
contends the error was harmless.
1. Relevant Proceedings
A. Trial
Before trial, the court discussed with the parties the new requirement
in section 1170(b)(2) for jury findings on the facts underlying aggravating
circumstances in order to impose the upper term. The court indicated the
prosecution could proceed with any of the “four different options” listed in
rule 4.421(a)(1), i.e., that “[t]he crime involved great violence, great bodily
harm, threat of great bodily harm, or other acts disclosing a high degree of
cruelty, viciousness, or callousness.”
Ultimately, the court instructed the jury with a modified version of
CALCRIM No. 3250, providing as follows: “If you find the defendant guilty of
the crime charged in count 1, you must then decide whether the People have
proved the additional allegation that the defendant’s offense involved certain
factors relating to the crime. [¶] To prove this allegation, the People must
prove that the defendant’s offense involved: [¶] 1. Great violence, or; [¶]
2. Great bodily injury, or; [¶] 3. Threat of great bodily injury, or; [¶] 4.
Other acts disclosing a high degree of cruelty, viciousness or callousness. [¶]
The People have the burden of proving each allegation beyond a reasonable
doubt. If the People have not met this burden, you must find that the
allegations have not been proved.” The court did not give an unanimity
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instruction in connection with CALCRIM No. 3250. The court did not
instruct the jury on any other aggravating circumstance.
In closing argument, the deputy district attorney addressed CALCRIM
No. 3250. She stated that the prosecution sought a jury finding that the
offense involved “great violence or great bodily harm or a threat of great
bodily harm or other acts disclosing a high degree of cruelty, viciousness or
callousness” beyond a reasonable doubt. However, the deputy district
attorney explained the prosecution did not “have to prove all of those to you,
just one,” and the jury could disagree on which “option” to rely on.
The deputy district attorney addressed each of the four options in turn,
arguing the jurors could each pick and choose from among them. She argued
the offense involved great violence because defendant was “driving like a
maniac with intent and purpose,” and he ultimately caused harm. She then
argued the offense involved great bodily harm as the victim hit his head on
the windshield, causing him to lose consciousness and require stitches.
However, she then suggested some jurors might doubt the prosecution had
met their burden of proof to show great bodily harm because the victim did
not have broken bones or require surgery. She stated, “[The People] don’t
have to prove [great bodily harm] to you . . . that’s not my burden.” She went
on to state that some of the jurors “could think there was great bodily harm,
some of you could think there’s a threat of it. It could be any one of those.”
She contended that a threat of great bodily harm existed for anyone else who
was driving or parked on the road, including the victim’s two friends. Lastly,
she suggested it was callous for defendant to drive “like a maniac” and
engage in a pursuit with Sergeant Yochim.
In closing, defense counsel did not address CALCRIM No. 3250.
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B. Sentencing
After the jury reached their verdict, the deputy district attorney filed a
sentencing memorandum asking for six years in state prison, citing several
aggravating circumstances under rules 4.421(a)(1), (b)(2), and (b)(3).
At the sentencing hearing, the court raised the issue that using the
aggravating circumstances under rule 4.421(a)(1) to impose the upper term
might violate the prohibition against dual use of facts for punishment
purposes. (See rule 4.420(h) [“A fact that is an element of the crime on which
punishment is being imposed may not be used to impose a particular term”].)
Specifically, the court was concerned that the rule 4.421(a)(1) factors
overlapped with the element of driving “with willful or wanton disregard for
the safety of persons or property” for felony evasion under Vehicle Code
section 2800.2.
Ultimately, the court found that the “seriousness of the injury to the
victim” (i.e., great bodily harm) provided a proper basis to impose the upper
term. The victim had hit his head on the windshield, had a loss of memory,
and had stitches in his lower lip. While the “physical injuries didn’t seem to
be that bad,” the court stated, “there was clearly some sort of injury above
and beyond.” The court stated it was not relying on the “threat of great
bodily harm” or the “high degree of cruelty or callousness,” because the court
believed those factors were subsumed under the elements of felony evasion.4
4 Similarly, the court determined it could not rely on defendant’s
criminal history under rule 4.421(b)(2) because the court had already used
that history to find his prior strike allegation to be true and thus double his
sentence. (See § 1170, subd. (b)(5) [“[t]he court may not impose an upper
term by using the fact of any enhancement upon which sentence is imposed
under any provision of law”].)
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After imposing the sentence, the court added it was also imposing the
upper term based on its “view that defendant willfully committed perjury
while on the witness stand.” The court acknowledged it did not see this
factor in the Rules of Court, “so that may be a wrong factor to consider, but
[it] want[ed] the record to be complete” for appellate review.
2. Analysis
The Legislature recently passed Senate Bill No. 567 to require factors
in aggravation be pled and proved to the trier of fact before those factors may
be used to increase a defendant’s sentence. (Stats. 2021, ch. 731, § 1.3,
adding § 1170, subd. (b)(1), (2).) Effective January 1, 2022, the amended
statute provides that “[t]he court may impose a sentence exceeding the
middle term only 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 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(b)(2).) This amendment
was in effect at the time of defendant’s sentencing.
The Rules of Court provide a non-exhaustive list of circumstances in
aggravation for purposes of sentencing, including that “[t]he crime involved
great violence, great bodily harm, threat of great bodily harm, or other acts
disclosing a high degree of cruelty, viciousness, or callousness.” (Rule
4.421(a)(1).)5 “[T]he use of the disjunctive ‘or’ [in rule 4.421(a)(1)] makes
5 Besides the enumerated circumstances in aggravation listed in rule
4.421, a court may also rely on “[a]ny other factors statutorily declared to be
circumstances in aggravation or that reasonably relate to the defendant or
the circumstances under which the crime was committed.” (Rule 4.421(c).)
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clear that the rule may be satisfied by” any one of the four enumerated types
of conduct. (People v. Duran (1982) 130 Cal.App.3d 987, 990 [“Clearly, the
rule does not require great bodily harm. If it did, then the references to great
violence and threat of great bodily harm would be meaningless”]; see People v.
Wilson (1982) 135 Cal.App.3d 343, 357, disapproved of on other grounds by
People v. Jones (1988) 46 Cal.3d 585 [“the term ‘viciousness and callousness’
under rule 4.421(a)(1) is separate from and not synonymous with ‘great
bodily harm’”].)
In this case, the jury found true beyond a reasonable doubt that
defendant’s offense involved: “1. Great violence, or; [¶] 2. Great bodily
injury, or; [¶] 3. Threat of great bodily injury, or; [¶] 4. Other acts
disclosing a high degree of cruelty, viciousness or callousness.” (Italics
added.) With these four options so phrased in the disjunctive, we cannot
conclude that the jury unanimously determined that the prosecution proved
beyond a reasonable doubt the “great bodily injury” option, the one upon
which the sentencing court ultimately relied in imposing the upper term.
Compounding the problem, the deputy district attorney directed the jury in
her closing that they did not have to agree on any one of the four options.
Because there was an inadequate showing that the jury found this
aggravating factor to be true beyond a reasonable doubt, the court erred in
relying upon this circumstance. (§ 1170(b)(2).)
The court further erred in imposing the upper term in part based on its
conclusion that defendant perjured himself during his testimony. The jury
Thus, the court’s finding of defendant’s commission of perjury would fall
within this catch-all category.
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did not make any such finding, and thus the court violated section 1170(b)(2)
by relying on this aggravating circumstance.
3. Harmlessness
Having concluded that the court erred in imposing the upper term
based on the jury’s blanket true finding on the aggravating circumstances in
rule 4.421(a)(1) and the court’s own finding that defendant committed
perjury, we now turn to whether the error was harmless.
Currently, appellate courts are divided on the prejudice standard that
applies when a sentencing court imposes the upper term based on
aggravating circumstances that were not all found true by the jury beyond a
reasonable doubt. (See, e.g., People v. Flores (2022) 75 Cal.App.5th 495(Flores); People v. Lopez (2022) 78 Cal.App.5th 459; People v. Dunn (2022) 81
Cal.App.5th 394, review granted Oct. 12, 2022, S275655.) Flores set forth the
least stringent standard, holding that the sentencing court’s error in such a
scenario is harmless if at least one of the aggravating factors relied on by the
trial court would have unquestionably been found true beyond a reasonable
doubt by a jury. (Flores, supra, 75 Cal.App.5th at pp. 500–501.) Even under
this more lenient standard of prejudice, however, we conclude the error here
was not harmless.
We cannot conclude beyond a reasonable doubt that the jury would
have found true beyond a reasonable doubt that defendant’s offense involved
“great bodily harm” under rule 4.421(a)(1). In fact, the prosecution created
doubt as to the strength and weight of the evidence of great bodily harm in its
closing. The deputy district attorney acknowledged that the jury could easily
not find great bodily harm because the victim neither had broken bones nor
required surgery for his injury.
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Likewise, we also cannot conclude beyond a reasonable doubt that the
jury would have found true beyond a reasonable doubt that defendant
committed perjury. The sentencing court did not indicate a particular part of
defendant’s testimony in which he perjured himself. Without such clarity, it
is “difficult for [us] to conclude with confidence that, had the issue been
submitted to the jury, the jury would have assessed the facts in the same
manner as did the trial court.” (People v. Sandoval (2007) 41 Cal.4th 825,
840; see People v. Wandrey (2022) 80 Cal.App.5th 962, 983 [“[s]ome degree of
speculation would necessarily be required for us to conclude the jury would
have agreed with the trial court’s evaluation”], review granted on a different
ground on Sept. 28, 2022, S275942.) Moreover, even if the jury believed
defendant’s testimony, it could have found him guilty. Defendant did not
deny the facts of the offense, but rather attempted to explain his altered
mental state at the time.6 (Compare People v. Howard (1993) 17 Cal.App.4th
6 Relying on CALCRIM No. 2181, the court instructed the jury on the
elements for felony evasion as follows: To prove defendant was guilty of this
crime, the People must prove that “[a] peace officer driving a motor vehicle
was pursuing the defendant;” and “defendant, who was also driving a motor
vehicle, willfully fled from, or tried to elude, the officer, intending to evade
the officer.” The court then gave the remaining elements in the disjunctive:
(1) “[d]uring the pursuit, the defendant drove with willful or wanton
disregard for the safety of persons or property;” or “[d]uring the pursuit, the
defendant caused damage to property while driving;” or “[d]uring the pursuit,
the defendant committed three or more violations, each of which would make
the defendant eligible for a traffic violation point;” and there was at least one
lighted red lamp visible from the front of the peace officer’s vehicle, the
defendant either saw or reasonably should have seen the lamp, the peace
officer’s vehicle was sounding a siren as reasonably necessary, the peace
officer’s vehicle was distinctively marked, and the peace officer was wearing a
distinctive uniform. The court instructed the jury that the defendant
committed an act “willfully” if he did it “willingly or on purpose.” Even if the
jury believed defendant’s testimony that he took medication that altered his
mental state, and even if they believed he was involuntarily intoxicated, they
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999, 1004–1005 [determining that by convicting the defendant the jury
“evidently” found he committed perjury after he denied committing sexual
assault, supporting use of perjury as an aggravating factor].)
DISPOSITION
The judgment is reversed and the case is remanded for resentencing.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STONE, J.*
We concur:
CURREY, Acting P. J.
COLLINS, J.
could have nevertheless concluded he had the required mental state
necessary to be guilty of this offense.
*
Judge of the Los Angeles County Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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