Opinion
E071985
06-09-2020
THE PEOPLE, Plaintiff and Respondent, v. MACK WAYNE IVORY, Defendant and Appellant.
David A. Dworakowski, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel J. Hilton and Steven T. Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1804192) OPINION APPEAL from the Superior Court of Riverside County. Michael B. Donner, Judge. Affirmed in part, reversed in part, and remanded with instructions. David A. Dworakowski, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel J. Hilton and Steven T. Oetting, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Mack Wayne Ivory, together with a codefendant, was charged with burglary (Pen. Code, § 459; count 1) and a misdemeanor count of being under the influence of methamphetamines (Health & Saf. Code, § 11550, subd. (a); count 2). His codefendant, Jesse McDowell, pleaded guilty to both counts. At the prosecution's request, and over defense objections, the trial court informed Ivory's jury that McDowell had pleaded guilty to the burglary charge, without mentioning the drug charge. The trial court provided the jury with no limiting instructions regarding this information.
Ivory contends, and we agree, that it was prejudicial error for the trial court to admit evidence of McDowell's guilty plea in the circumstances of this case. The judgment therefore will be reversed in part, and the matter remanded for either a new trial on count 1 or resentencing on count 2 alone.
Ivory also argues that the prosecutor committed prejudicial misconduct during rebuttal arguments, and that the trial court erred by failing to order a probation report prior to sentencing, by imposing various fines and fees without considering Ivory's ability to pay, and by miscalculating Ivory's custody credits. The People concede that the trial court miscalculated Ivory's custody credits. These arguments are all mooted, however, by our partial reversal of the judgment, which will require Ivory to be resentenced regardless of whether the People choose to retry him on count 1.
The trial court erroneously applied Penal Code section 2933.1, subdivisions (a) and (c), to limit Ivory's presentence conduct credits to 15 percent of his actual days in custody.
I. BACKGROUND
On the evening of September 20, 2018, a witness called police after observing two men trespassing on her sister's property, which is located across the street from the witness's own home. The men had arrived in a white car, which they parked on the property. There had been several break-ins at the property in the previous three weeks. The witness's view was partially obscured; she was unable to identify either of the two men, or even describe their characteristics. She was sure, however, that these two men were different people from those who performed the previous break-ins. She observed the two men walking around the property, going near a mobile home, a shed, and a box truck on the property.
A sheriff's deputy responded to the scene and detained Ivory and McDowell, who emerged from behind the shed when the deputy activated his siren. From observing Ivory and field-testing him, the deputy believed Ivory was under the influence of a central nervous system stimulant, such as cocaine or methamphetamine. Later, a urine sample given by Ivory would test positive for amphetamines and cannabinoids. Although the witness had told the 911 operator that she saw a gun with one of the men on her sister's property, the deputy did not find any gun. The deputy observed no signs of any forced entry, either of the property's gate, or of any vehicle or structure there.
The witness's sister arrived and observed that her mobile home and shed had been "ransacked." The sister identified various items in the backseat of the white car as having previously been in either the mobile home or the box truck. She admitted at trial, however, that she had not lived on the property for two years, and had not been to the property "in a while," so her memories of seeing the items could have been from "a day before, or it could have been . . . a month before."
Ivory and McDowell were both charged with one felony count of burglary (Pen. Code, § 459; count 1) and one misdemeanor count of being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a); count 2). The amended information also alleged that Ivory had six prison prior convictions (Pen. Code, § 667.5, subd. (b)) and two strike priors (Pen. Code, §§ 667, subd. (c), (e)(2)(A), 1170.12, subd. (c)(2)(A)).
McDowell pleaded guilty to both counts. During Ivory's trial, the prosecution asked that the trial court take judicial notice of McDowell's guilty plea. The prosecution also requested that the trial court inform the jury of that guilty plea. Over defense objections based on Evidence Code section 352 and Ivory's constitutional rights of confrontation and cross-examination, the trial court informed the jury of the plea with the following statement: "'Co-defendant Jesse McDowell was also charged with a violation of Penal Code Section 459 for entering a building [at the witness's sister's address] with intent to commit a theft on September 20, 2018. He pled guilty to that charge on November 6, 2018.'"
Ivory's jury found him guilty as charged on counts 1 and 2. Ivory admitted to a prior prison conviction and two strike priors; the remaining five prison prior allegations were dismissed. The trial court initially sentenced Ivory to six years in prison, consisting of the middle term of two years for count 1, doubled because of the strike priors, plus one year for count 2 and one year for the prison prior. It later reduced this sentence to five years in prison plus 364 days in county jail.
II. DISCUSSION
Ivory contends that the trial court prejudicially erred by informing the jury that McDowell pled guilty to burglary. We agree that the trial court erred, and that the error requires reversal of Ivory's burglary conviction.
"The general rule is that evidence regarding the guilty plea or conviction of a coparticipant in a crime is not admissible to prove guilt of a defendant." (People v. Neely (2009) 176 Cal.App.4th 787, 795 (Neely); see also People v. Cummings (1993) 4 Cal.4th 1233, 1322 [cited by Neely]; People v. Leonard (1983) 34 Cal.3d 183, 188-189 (Leonard) [same].) Such evidence invites the impermissible inference of guilt by association, and therefore, absent some other proper purpose and a limiting instruction cabining its use, should be excluded pursuant to Evidence Code section 352; its "prejudicial effect . . . is clearly substantial and far outweighs any probative value [it] might have." (Leonard, supra, at p. 188.) Such evidence also implicates the defendants' rights of confrontation and cross-examination. (Neely, supra, at p. 795; see Kirby v. U.S. (1899) 174 U.S. 47, 55 [finding violation of rights to confrontation and cross-examination because defendant was confronted "only with the record of another criminal prosecution, with which he had no connection, and the evidence in which was not given in his presence"].)
Here, the People do not contest that the trial court erred by informing Ivory's jury of McDowell's guilty plea. The People have made the proper decision, as our review of the record reveals no appropriate basis for that evidence to have been admitted. The People argue only that the error was harmless. We cannot conclude that it was.
The standard in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson) applies when a trial court abuses its discretion in admitting evidence over an objection pursuant to Evidence Code section 352. (Leonard, supra, 34 Cal.3d at p. 189.) Under Watson, we "determine from the whole record whether it is reasonably probable that without the error a result more favorable to defendant would have occurred." (Leonard, ] at p. 189.) Confrontation clause violations are subject to the federal harmless error analysis articulated in Chapman v. California (1967) 386 U.S. 18, 24 (Chapman), i.e., reversal is required unless the error was harmless beyond a reasonable doubt. (People v. Geier (2007) 41 Cal.4th 555, 608.) The People here concede that the Chapman standard applies. We would reach the same conclusion, however, under either the Chapman or the Watson standard.
Ivory was apprehended by police on the scene of the alleged crime, lending some credence to the People's characterization of him as being "caught red-handed." It is not so clear, however, what crime, exactly, he was committing when he was caught. There is no doubt he was trespassing, and the evidence that he was engaged in theft was strong. Nevertheless, the case against Ivory had holes that arguably left ample space for reasonable doubt as to whether he had committed burglary, either directly or as an aider and abettor. The witness's view of the scene was partially obscured, and police were unable to verify some of her observations, such as her report that one of the men on her sister's property had a gun. The witness conceded that she did not see anyone enter the mobile home, and the jury reasonably could have doubted her report that she saw someone—she could not specify who—enter the shed, rather than just be on the property near it. Also, the property had been "ransacked" repeatedly in the weeks before September 20, 2018, and the witness's sister's memories of where she had last seen items could have been from "a day before, or it could have been . . . a month before." When the sheriff's deputy responded to the scene, Ivory and McDowell emerged from behind the shed, not from inside it. Even if the jury found Ivory and McDowell had engaged in theft from the property, it could have concluded there was doubt as to whether they broke into any structure on the property to do so, rather than gathering items from outside the structures.
Moreover, the trial court provided no limitation on the jury's use or consideration of McDowell's guilty plea, such as that it must not consider McDowell's plea alone as sufficient to prove Ivory was guilty. We do not decide whether some such instruction could have been adequate to cure the trial court's error of admitting evidence of the plea. The absence of such an instruction is a factor supporting our conclusion that the error was prejudicial. There is a fair probability that the jury relied heavily on the evidence of that plea.
We find that the evidence against Ivory was strong, but not so overwhelming as to permit the conclusion that the trial court's error of informing the jury of McDowell's guilty plea was harmless beyond a reasonable doubt. Indeed, based on our review of the entire record, we find it reasonably probable that at least one juror would have been persuaded to acquit Ivory of burglary, absent the error. Ivory's conviction on count 1, therefore, must be reversed.
The same is not true, however, for Ivory's conviction on count 2, for being under the influence of a controlled substance. The jury was not informed that McDowell also pleaded guilty to being under the influence of a controlled substance, in addition to burglary. Moreover, defense counsel told the jury during closing arguments that Ivory was "outright admitting that he's guilty" on count 2. Ivory suffered no prejudice from any error with respect to count 2, under any standard for harmlessness. The same is true regarding the prison prior allegation and the two strike prior allegations, which Ivory admitted.
III. DISPOSITION
The judgment on count 1 is reversed, and defendant's sentence is reversed as well; in all other respects, the judgment is affirmed. On remand, if the People do not bring Ivory to a new trial on count 1 in a timely manner (see Pen. Code, § 1382, subd. (a)(2)), then our remittitur shall be deemed to modify the verdict by vacating the conviction on count 1, and the trial court shall promptly resentence Ivory. In resentencing Ivory, whether after a new trial on count 1 or not, the trial court shall ensure that Ivory's custody credits are properly recalculated and, if requested by Ivory, hold a hearing on his ability to pay any applicable fines or fees.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAPHAEL
J. We concur: RAMIREZ
P. J. MCKINSTER
J.