Opinion
F078152
10-09-2019
THE PEOPLE, Plaintiff and Respondent, v. TONY HENRY, JR., Defendant and Appellant.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kimberley A. Donohue and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. BF166756A)
OPINION
THE COURT APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Michael B. McPartland, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kimberley A. Donohue and Sean M. McCoy, Deputy Attorneys General, for Plaintiff and Respondent.
Before Franson, Acting P.J., Peña, J. and Meehan, J.
-ooOoo-
A jury convicted appellant Tony Henry, Jr., of assault by means of force likely to cause great bodily injury (Pen. Code, § 245, subd. (a)(4)/count 6) and three counts of robbery (§ 212.5, subd. (c)/counts 1, 2, & 5). The jury also found true a great bodily injury enhancement in counts 5 and 6. (§ 12022.7.) In a separate proceeding, the court found true a serious felony enhancement (§ 667, subd. (a)), two prior prison term enhancements (§ 667.5, subd. (b)), and allegations that Henry had a prior conviction within the meaning of the "Three Strikes" law (§ 667, subds. (b)-(i)).
All further statutory references are to the Penal Code.
On September 20, 2018, the court sentenced Henry to an aggregate prison term of 23 years: a doubled aggravated term of 10 years on his robbery conviction in count 5, a three-year great bodily injury enhancement in that count, consecutive two-year terms (doubled one-third the middle terms) on each of his two other robbery convictions, a five-year serious felony enhancement, a one-year prior prison term enhancement, and a stayed term on count 6.
On appeal, Henry contends: (1) the court abused its discretion when it denied his motion to sever; and (2) the matter must be remanded to the trial court for it to consider whether to strike his serious felony enhancement. We find merit to Henry's second contention and remand the matter for the trial court to exercise its discretion to consider whether to strike Henry's serious felony enhancement. In all other respects, we affirm.
FACTS
The Trial
A. The September Robbery (Counts 5 & 6)
Brenda C. testified that on September 23, 2016, at approximately 2:30 p.m., she drove to her credit union in Bakersfield. After conducting some business in the bank, Brenda was about to use her keys to open her car door when a man who was walking in her direction asked how she was. Brenda replied she was fine, and the man began walking twice as fast toward her. The man then pulled on her purse, snapping the strap. Brenda told the man to take her purse and go and he punched her several times, causing her to fall to the ground and momentarily lose consciousness. When Brenda regained consciousness, she was bleeding profusely, and she got up and ran towards the bank. Brenda heard steps behind her and the man who assaulted her say something to her. She ran faster and made it inside the bank where she waited to receive medical treatment. Brenda suffered several injuries during the assault—a laceration on her forehead, one eye was swollen shut, and she had bruising on her arms and chest. She identified Henry in court as the man who attacked her.
Dale S. testified that he had just used the drive-through ATM when he saw a man grab a woman's purse. The woman pulled back and the man hit her four to five times. Dale stopped his car and ran to the man. Dale was mad from witnessing the assault and did not see the woman's purse at that time. Dale grabbed the man and hit him. They both went to the ground and began tussling and hitting each other. A white Mercedes drove up to the men and they both got up. The man hit Dale, ran to the car and got in. After a brief verbal exchange with the driver, Dale pulled the first man out of the car, but the man managed to get back in and the car drove off.
Dale subsequently identified Henry in a photo lineup as the man who robbed Brenda. Henry's DNA matched DNA obtained from blood samples taken from Dale's hands and shirt. B. The October Robbery (Count 1)
Kathleen L. testified that at around 12:00 p.m. on October 27, 2016, as she arrived at a bank in Bakersfield, she saw a man walking, smoking a cigarette. She then saw the man enter the bank. About a minute and a half later, as Kathleen entered the bank, she saw the man run out of the bank carrying a bag.
Inside the bank, a man approached a teller and told her he wished to open an account. The teller referred the man to another employee and the man put a note and a bag on the counter. The man also lifted his shirt and displayed an object in his waistband that appeared to be a gun. The teller put the money from her tray into the bag. The man grabbed the bag and the note and took off. Henry's DNA was found on a cigarette butt that was recovered just outside the bank. C. The December Robbery (Count 2)
On December 29, 2016, at around 12:00 p.m., at a bank in Bakersfield, Henry approached a teller, handed her a note and told her to read it. After reading the note, which instructed the teller to put all the money in a bag, the teller looked at Henry and he lifted his sweatshirt and displayed a gun. The teller put the money in Henry's bag and he ran off. As the teller turned around to say something to her assistant manager, Henry came back, got the note, and ran off again. Henry was identified as the robber by two other bank employees from a photo lineup. He was arrested later that day in a motel in possession of approximately $11,000, numerous plastic wrapped video games, and items of clothing with the price tags still attached.
DISCUSSION
The Motion to Sever
On June 26, 2018, defense counsel moved in limine to sever counts 5, 6, and 7, which charged Henry with the robbery, assault and misdemeanor battery of Brenda, from the remaining counts, arguing that they were joined because they were supported by weaker evidence.
The jury acquitted Henry of the misdemeanor battery charged in count 7. --------
At a hearing on December 10, 2018, defense counsel argued that severing the counts involving Brenda was appropriate because the other offenses occurred at a different time and location, involved a different modus operandi, and the prosecutor was trying to join a weak case with two strong cases. The court denied the motion.
Henry contends there was no cross-admissibility of evidence between the charges involved in the purse snatching robbery (counts 5, 6, & 7) and the charges involved in the two bank robberies. He further contends the evidence that he committed the bank robberies was strong, but the evidence that he committed the purse snatching robbery was weak because: (1) Dale did not see a purse in Henry's possession when Dale fought with him; and (2) the man who attacked Brenda followed her to the credit union building and Dale fought with Henry "quite a ways away" from the bank building. Thus, according to Henry, because there was no cross-admissibility of evidence and the prosecutor combined a weak case with two strong cases, the court abused its discretion when it denied his motion to sever. Additionally, Henry contends the admission of the evidence pertaining to the bank robbery cases prejudiced him with respect to the purse snatching robbery case because it was a close case whether Henry was the person who snatched Brenda's purse. We reject these contentions.
"As relevant here, section 954 permits the joinder of 'two or more different offenses of the same class of crimes or offenses.' [Citations.] '[B]ecause consolidation or joinder of charged offenses ordinarily promotes efficiency, that is the course of action preferred by law.' [Citation.] However, a trial court in its discretion may order the offenses to be severed 'in the interests of justice and for good cause shown.' [Citation.] The often-cited factors for severance are: '(1) whether the evidence relating to the various charges would be cross-admissible in separate trials, (2) whether some of the charges are unusually likely to inflame the jury against the defendant, (3) whether a weak case has been joined with a strong case or with another weak case, and (4) whether one of the charges is a capital offense or the joinder of the charges converts the matter into a capital case.' [Citation.] If cross-admissibility of the evidence is present, that is normally enough to justify the trial court's refusal to sever the charged offenses. [Citation.] However, the lack of cross-admissibility is not necessarily dispositive for purposes of severance. [Citations.] If there is no cross-admissibility of the evidence, we evaluate the three remaining factors to determine whether they demonstrate the trial court's abuse of discretion." (People v. Trujeque (2015) 61 Cal.4th 227, 258-259.)
Section 954 authorizes the joinder of two or more criminal charges, so long as the offenses are "connected together in their commission" or "of the same class of crimes." The charges in counts 5, 6, and 7 were properly joined with counts 1 and 2 pursuant to section 954 because count 5 charged Henry with robbery, the same offense charged in counts 1 and 2, and counts 6 and 7 were connected in their commission to the robbery charged in count 5.
"When charges are properly joined under section 954, a defendant must make a 'clear showing of prejudice' in order to establish that a trial court's denial of a motion for severance was an abuse of discretion. [Citation.] Because the ' "state's interest in joinder gives the court broader discretion in ruling on a motion for severance than it has in ruling on admissibility of evidence" ' [citation], 'a party seeking severance must make a stronger showing of potential prejudice than would be necessary to exclude other-crimes evidence in a severed trial' [citation].
"Our framework for analyzing prejudice in this context is well established. 'Cross-admissibility is the crucial factor affecting prejudice. [Citation.] If evidence of one crime would be admissible in a separate trial of the other crime, prejudice is usually dispelled.' [Citation.] 'If we determine that evidence underlying properly joined charges would not be cross-admissible, we proceed to consider "whether the benefits of joinder were sufficiently substantial to outweigh the possible 'spill-over' effect of the 'other-crimes' evidence on the jury in its consideration of the evidence of defendant's guilt of each set of offenses." ' [Citation.] Three factors are most relevant to this assessment: '(1) whether some of the charges are particularly likely to inflame the jury against the defendant; (2) whether a weak case has been joined with a strong case or another weak case so that the totality of the evidence may alter the outcome as to some or all of the charges; or (3) whether one of the charges (but not another) is a capital offense ....' " (People v. Jackson (2016) 1 Cal.5th 269, 299.)
Even assuming there was no cross-admissibility of evidence between the charges involved in the purse snatching robbery and those involved in the two bank robberies, Henry has not met his burden of showing prejudice. Contrary to Henry's assertions, the evidence that he committed the robbery of Brenda was also strong. Dale watched the entire assault and robbery of Brenda and he immediately got out of his truck and fought with the robber before the robber was able to escape with the help of an accomplice. Further, DNA from blood the robber left on Dale and his shirt matched Henry's DNA and Brenda identified him in court as the man who robbed her. These circumstances provided compelling evidence, which Henry did not refute, that he was the man who assaulted and robbed Brenda.
Dale's failure to testify that Henry had a purse does not assist Henry. Henry could have dropped the purse, he may have held it in a way that his body hid it from Dale, or Dale may simply not have noticed it because of the anger he experienced from witnessing the brutal attack on Brenda and his attention being focused on physically confronting Henry. In view of these circumstances, Dale's failure to notice whether Henry was in possession of a purse is of little import.
Brenda's testimony that she heard footsteps and Henry's voice behind her also does not assist Henry because Brenda did not turn around to see where the voice or footsteps came from and she did not testify to her exact location at the time. Further, because Dale ran to confront Henry and there was no evidence Henry ran after Brenda, the evidence strongly suggests it was Dale's footsteps that Brenda heard. Additionally, Dale did not testify to the exact location where he fought Henry. Thus, there is no merit to Henry's suggestion that he could not have been the robber because the robber followed Brenda to the bank building while Dale fought with him far away from the building.
Moreover, Henry does not contend, nor does the record support a finding, that any of the charges were particularly likely to inflame the jury and none of the charges was a capital offense. Accordingly, we reject Henry's contentions that the court abused its discretion when it denied his motion to sever and that he was prejudiced by the court's denial of the motion.
Remand for Resentencing
Henry contends he is entitled to the benefit of recent amendments to sections 667 and 1385, which allows trial courts to strike serious felony enhancements, and that remand is necessary so the court can exercise its discretion to consider whether to strike his serious felony enhancement. Respondent concedes the amendments to these sections apply retroactively to Henry and that the matter should be remanded for the court to consider whether to exercise its discretion pursuant to these sections.
On September 30, 2018, the Governor signed Senate Bill No. 1393 (2017-2018 Reg. Sess.), which amends sections 667, subdivision (a) and 1385, subdivision (b), effective January 1, 2019, to allow a court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (Stats. 2018, ch. 1013, §§ 1-2.) There is no indication in the amendment to sections 667, subdivision (a) or 1385, subdivision (b), that these amendments were to operate prospectively. Thus, Henry is entitled to the benefit of these recent amendments. (People v. Brown (2012) 54 Cal.4th 314, 323; In re Estrada (1965) 63 Cal.2d 740, 745.)
"Remand is required unless the record reveals a clear indication that the trial court would not have reduced the sentence even if at the time of sentencing it had the discretion to do so. [Citation.] Without such a clear indication of a trial court's intent, remand is required when the trial court is unaware of its sentencing choices." (People v. Almanza (2018) 24 Cal.App.5th 1104, 1110; accord, People v. McDaniels (2018) 22 Cal.App.5th 420, 425.) Since there is no clear indication of the trial court's intent, we agree with the parties that the matter should be remanded to the trial court for it to consider whether to exercise its discretion pursuant to sections 667, subdivision (a) and 1385, subdivision (b) to strike his serious felony enhancement.
DISPOSITION
The matter is remanded to the trial court for the court to consider whether to exercise its discretion pursuant to sections 667, subdivision (a) and 1385, subdivision (b), as amended by Senate Bill No. 1393, effective January 1, 2019, to strike Henry's serious felony enhancement. In all other respects, the judgment is affirmed.