Opinion
A158935
07-20-2021
THE PEOPLE, Plaintiff and Respondent, v. GEORGIE MICHELLE JACKSON, Defendant and Appellant.
NOT TO BE PUBLISHED
Del Norte County Super. Ct. No. CRF 18-9000
MARGULIES, ACTING, P. J.
Defendant Georgie Michelle Jackson was convicted of attempted murder of a police officer and multiple counts of assault with a firearm on three police officers and her romantic partner. She challenges the trial court's decision to admit evidence of prior uncharged acts and raises several claims of sentencing error. We agree with defendant that the abstract of judgment should be amended to correct a clerical error, but otherwise affirm the judgment.
I. BACKGROUND
In October 2017, defendant and Alvin G. were involved a romantic relationship. Alvin had a trailer in Crescent City and defendant was staying with him in the trailer. Stephanie D. also lived in the trailer with her boyfriend. One night, Alvin invited an “older” female acquaintance named Debbie to the trailer so they could talk. Stephanie and defendant were at the trailer when Alvin brought Debbie there. After he arrived with Debbie, Alvin and defendant went to the bedroom to talk for a few minutes. When defendant came out of the bedroom Stephanie thought she looked “annoyed, pissed off.”
Alvin was not flirting with Debbie. He noticed, however, that defendant was getting upset, so he took Debbie home. After he left, defendant began throwing things and was kicking, breaking, and destroying Alvin's property. Defendant was “boiling.” She grabbed her belongings and left. Alvin returned home alone a couple of hours later.
Around 1:00 a.m., Stephanie was in her bedroom arguing with her boyfriend when she heard something that sounded like a gun firing. Stephanie heard Alvin yelling and telling her to “call the cops” because defendant was shooting at him. She could also hear defendant but could not hear what she was saying.
Stephanie called 911. Deputy Sheriff Tobias Chittock was dispatched to the scene and was joined by Crescent City Police Officer Ethan Miller and other officers. Chittock had been informed that the person who shot at the trailer “left into” a nearby field. When Chittock and Miller arrived, they began to look in the field for the shooter. Chittock heard a female voice in the distance yelling, “ ‘I'm going to kill you, and I'm going to kill myself.' ” When he heard her, Chittock believed she was yelling to the victim-he did not believe she was threatening him. They searched the field but were unable to find defendant.
Chittock then went to the trailer park to investigate the scene of the shooting and interview Alvin and Stephanie. Alvin showed Chittock bullet holes in his truck and the side of his trailer.
After interviewing Alvin and Stephanie, Chittock went to find George A., defendant's father, who lived about two trailers away from Alvin. Defendant lived with her father intermittently in 2017. Chittock spoke with George and asked him if he had a firearm. George told him he had a revolver hidden in a toolbox. The revolver was an older gun. When George went to his bedroom to look for the revolver, he was surprised to find it was missing. After speaking with George, Chittock put out a “be on the lookout” for defendant.
After Chittock's shift ended, Deputy Sheriff Terry Ater followed up on the investigation. Ater went to Alvin's trailer and witnessed the extraction of a bullet from Alvin's truck. The bullet appeared to be a.22-caliber bullet. Ater also went to George's trailer, where he found a partially full box of.22-caliber bullets on his porch.
Later that day, Ater and Deputy Sheriff Sarah Asbury were trying to locate defendant to arrest her in connection with the shooting at Alvin's trailer. Asbury had prior contacts with defendant and knew what she looked like. Ater received information that defendant might be at another trailer park just south of Alvin's trailer park. When they went to that trailer park, Ater and Asbury found defendant.
Asbury got out of her car and spoke with defendant. She said, “Hey, Georgie.... What's going on?” Defendant had “almost like a panicked look” and reached behind her lower back area. Asbury thought defendant was reaching for a gun, so she retreated to her car and took cover, continuously giving defendant commands to stop moving and to show Asbury her hands. When defendant failed to comply, Asbury pulled out her service weapon, pointed it at defendant, and yelled at defendant to show her hands. Defendant pulled out a red cloth that appeared to be covering a firearm. Defendant had the firearm pointed at the ground. Asbury repeatedly told her to show her hands. Defendant responded, “Fuck you.” She told Asbury she was not going to jail and that she had been raped. She also called Asbury a “stupid bitch, ” accused her of taking her son, and asked for her son.
Asbury had arrested defendant's son and he was in jail at the time as a result of that arrest.
While Asbury continued to try to negotiate with defendant, Ater and Sergeant Daniel Schneck approached Asbury. At that point, defendant began to retreat and pointed the firearm at her own head. Schneck began to engage with defendant and took over communication with her. At some point, defendant approached Schneck, still holding the gun to her head. As he continued to try to get her to drop the firearm, she ran away.
Schneck, Ater, Asbury, Sheriff Apperson, and another officer chased after her. Defendant fired a shot at Schneck. The officers fired back at defendant and she went down. The gun recovered from defendant at the scene was a.22-caliber revolver, manufactured in about 1943.
Defendant did not testify at trial, nor did she present any evidence affirmatively disputing the prosecution's version of the events. She presented testimony from an expert forensic toxicologist that a urine sample taken eight and a half hours after the second shooting showed she had 4, 196 nanograms of amphetamines per milliliter in her urine. This was an “enormous amount, ” and would have the same psychoactive effect as methamphetamine. The expert testified methamphetamine has “potent psychological effects on the individual, ” including “delusions, confusion, hallucinations, paranoia, ... anxiety, ... aggressiveness, [and] hostility” coupled with “impulsivity and inability to make rational decisions.” The expert concluded, based on law enforcement observations, that defendant was showing signs of being under the influence of methamphetamine at the time of the second shooting.
Defendant was charged in a six-count amended information filed in May 2019 with premeditated attempted murder of a peace officer (Pen. Code, §§ 187, 664, subds. (e) & (f); count 1), assault with a firearm on a peace officer (§ 245, subd. (d)(1); counts 2-4), assault with a firearm (§ 245, subd. (a)(2); count 5), and shooting at an inhabited dwelling (§ 246; count 6). Firearm enhancements were charged on the first five counts.
All statutory references are to the Penal Code unless otherwise indicated.
On June 18, 2019, a jury found defendant guilty on all counts and found the alleged firearm enhancements true. The jury could not reach a verdict on whether the attempted murder was premeditated.
The trial court sentenced defendant to an aggravated term of eight years on count 2 and seven years to life on count 1. The court also imposed terms of eight years on count 3, two years on count 4, one year on count 5, and one year eight months on count 6. For the firearm enhancements, the trial court imposed a term of 20 years on count 1, 20 years on count 3, 6 years 8 months on count 4, and 3 years 4 months on count 5. The court stayed the term on count 2, pursuant to section 654. Defendant's total term was 69 years 8 months to life.
II. DISCUSSION
A. Evidentiary Rulings
Defendant contends the trial court committed a series of errors in admitting “ ‘bad character' ” evidence. Under Evidence Code section 1101, subdivision (a), evidence of a person's character, including evidence of character in the form of uncharged acts, is generally inadmissible to prove his or her conduct on a specific occasion. Evidence of prior conduct may be admissible, however, under Evidence Code section 1101, subdivision (b), when relevant to establish some fact other than the defendant's character or disposition, such as motive, intent, preparation, or identity. (People v. Fuiava (2012) 53 Cal.4th 662, 667.) “We review the trial court's [admission of uncharged acts evidence] for abuse of discretion, and view the evidence in the light most favorable to the trial court's ruling.” (People v. Edwards (2013) 57 Cal.4th 658, 711; People v. Davis (2009) 46 Cal.4th 539, 602.) If evidence of uncharged acts is erroneously admitted, we determine whether there is a reasonable probability defendant would have achieved a more favorable result in the absence of the error. (People v. Winkler (2020) 56 Cal.App.5th 1102, 1164; People v. Felix (1993) 14 Cal.App.4th 997, 1007-1008.)
For reasons we discuss below, we reject each of defendant's evidentiary challenges.
1. Stephanie D.
First, defendant claims the trial court erred in admitting a statement from Stephanie D. Near the end of her direct examination, the prosecutor asked if Stephanie found that when defendant gets upset, she can be vicious. Defense counsel objected, citing Evidence Code section 352. The court overruled the objection. Stephanie responded, “Yeah. I mean, she would make people walk on eggshells just not to get on her bad side or, you know, have the repercussions from her.”
As an initial matter, we note trial counsel objected only under Evidence Code section 352. Defendant argues that because the trial court found the evidence was relevant, it would have been futile to object under Evidence Code section 1101, subdivision (a) and, thus, the issue has been preserved for appellate review. We cannot agree. Because defendant did not object on that ground, her claim that the trial court admitted the statement as improper character evidence is forfeited. (Evid. Code, § 353, subd. (a) [judgment shall not be reversed unless timely and specific objection was made]; see, e.g., People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 408 (Bryant).)
Even assuming the trial court erred in admitting the evidence, however, we fail to see how defendant was prejudiced. Stephanie had already testified defendant destroyed Alvin G.'s personal property in a rage after he brought home a female friend with whom he was not flirting. Stephanie had further testified, without objection, that she would have expected defendant to commit arson. The jury heard testimony from law enforcement officers that defendant was shouting in a field in the middle of the night that she would kill someone and then kill herself. In light of the substantial volume of admissible evidence that defendant could behave erratically, impulsively, and violently, the vague statement that people would have to walk on eggshells because there might be repercussions was anticlimactic and unlikely to produce an emotional response from jurors. (See, e.g., People v. Karis (1988) 46 Cal.3d 612, 638 [“prejudice” under Evid. Code, § 352 is evidence “ ‘which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues' ”].) Because defendant was not prejudiced by the statement, any error in its admission was harmless.
Stephanie also implied that she would have expected defendant to do something to Alvin's dog. In response to a follow-up question about what type of “repercussion” she was expecting from defendant, Stephanie said, “Arson, fire. I don't know. Like-or, like, the dog dying or something.”
2. Defendant's Father
Second, defendant claims the trial court erred in allowing the prosecution to present evidence, over defense objection, that her own father, George A., had a restraining order against her and that she had stolen a gun from him in violation of that restraining order. During George's testimony, the prosecutor asked if George and his wife had a restraining order prohibiting defendant from possessing firearms. Defense counsel objected, “Relevance. She's not charged with being in violation of a court order.” The prosecutor responded the testimony was relevant because “she was specifically prohibited from possessing any type of firearm with the restraining order. And she went and stole it anyway from the very person she was restrained against.” The trial court overruled the objection on the ground it showed “intent, motive.”
The prosecution then sought to introduce a copy of the restraining order. Defense counsel objected on Evidence Code section 352 grounds that the evidence was more prejudicial than probative because defendant was not charged with possession of a firearm in violation of the law and it was a waste of time. The prosecution responded the evidence went to motive because defendant was “specifically prohibited from possessing any type of firearm, ” but “she goes and steals her dad's firearm and does a shooting at one trailer and then shoots at cops the next day.” The trial court overruled the objection after ordering hearsay statements redacted from the restraining order.
Initially, we again note that defendant did not object the evidence was improper character or propensity evidence. As to whether it was more prejudicial than probative under Evidence Code section 352, arguably the fact that defendant stole a gun from her father she was not allowed to possess was relevant to show how defendant obtained the weapon she used in the shootings and went to the issue of intent in connection with the premeditated attempted murder. However, we need not evaluate whether the trial court erred in admitting this evidence, including the restraining order, because any possible error was harmless.
The jurors rejected premeditation as to the attempted murder charge, demonstrating they carefully evaluated the evidence and did not act out of passion or prejudice. Moreover, the evidence of guilt as to the charged offenses was overwhelming and uncontradicted. Eyewitnesses testified regarding the circumstances of both shootings and their testimony was corroborated by the physical evidence and uncontradicted by the defense. In addition, the fact that defendant stole a gun from her father in violation of a restraining order was considerably less serious and inflammatory than properly admitted testimony about the charged crimes. (See, e.g., People v. Leon (2015) 61 Cal.4th 569, 599 [evidence of past robberies “not particularly inflammatory” relative to charged murders and other crimes]; People v. Scheid (1997) 16 Cal.4th 1, 21 [challenged evidence was not more inflammatory than properly admitted testimony].)
Defendant raises another evidentiary challenge to George A.'s testimony. On redirect examination, the prosecutor inquired whether defendant's past behavior included violence. George answered, “Yeah. She did push my wife once.” Defense counsel did not object.
Defendant has forfeited this issue. (Evid. Code, § 353, subd. (a); People v. Anderson (2001) 25 Cal.4th 543, 586.) Although she contends an objection would have been futile in light of the trial court's earlier ruling on the Stephanie D. evidence, “ ‘[t]he overruling of an objection to one item of evidence does not necessarily mean an objection to different evidence would have been futile,' even when the items at issue concern the same subject.” (Bryant, supra, 60 Cal.4th at p. 421.) In any event, any error in admission of the statement was harmless in light of the evidence the jury heard about defendant's significantly more violent behavior on the charged crimes and the undisputed evidence of guilt.
3. Amy O.
Finally, defendant charges that the trial court erred in allowing testimony from a rebuttal witness, Amy O. The prosecutor proposed calling Amy to testify regarding a past incident in which defendant had used drugs and threatened to shoot someone, explaining her testimony was necessary to rebut testimony from the defense toxicologist “about hallucinations because of methamphetamine, obviously, trying to negate specific intent to kill.” The court reserved ruling on admissibility. The next day, the court heard brief argument from the parties. Defense counsel objected on the basis that Amy's testimony was propensity evidence. The trial court ruled the evidence was admissible to rebut the toxicologist's testimony, but “not for propensity purposes.” Amy then testified, over a relevance objection, that on a prior occasion, defendant threatened to shoot her, and as a result she did not feel safe and got a restraining order against defendant.
Defendant argues the evidence was relevant only to prove defendant's propensity for violence. The trial court, however, reasonably concluded this testimony was relevant to rebut defendant's theory that her amphetamine level prevented her from forming the requisite intent to commit the crime of premeditated attempted murder.
Even assuming the trial court erred, however, defendant has not shown it is reasonably probable she would have achieved a more favorable result had it been excluded. As discussed previously, the evidence of guilt was overwhelming, and the jury's verdict shows it rationally evaluated the evidence and rejected the prosecution's theory that defendant's acts were premeditated. We conclude that any error in admitting such evidence was harmless.
B. Sentence on Count 5
Defendant next contends the trial court erred in sentencing defendant on count 5, assault with a firearm against Alvin. On the firearm enhancement for count 5 (§ 12022.5, subd. (a)), the court imposed a consecutive term of 3 years 4 months, one-third of the upper term of 10 years. Defendant contends the trial court erred because under section 1170.1, subdivision (a), the consecutive term for such an enhancement is one-third the middle term, which in this case should have been one year eight months.
We disagree. Section 1170.1, subdivision (a) provides a defendant convicted of two or more felonies shall be sentenced to one-third the middle term on subordinate terms for each consecutive offense. Subdivision (d), however, provides: “If an enhancement is punishable by one of three terms, the court shall, in its discretion, impose the term that best serves the interest of justice....” (§ 1170.1, subd. (d).) Thus, the express language of the statute requires the sentencing court to impose one-third the middle term for the subordinate felony but allows the court discretion to select which of the three alternative terms applies to the enhancement, then impose one-third of that term. (People v. Hill (2004) 119 Cal.App.4th 85, 88-91.) Accordingly, the trial court did not err.
Defendant also contends the abstract of judgment incorrectly describes the offense on count 5 as assault with a firearm on a peace officer. The Attorney General concedes the error, and we agree. We order the trial court to correct the abstract of judgment to reflect the conviction on count 5 was for assault with a firearm.
C. Sentence on Count 1
On count 1, the trial court sentenced defendant to an indeterminate term of seven years to life. The statutory term for the offense is life with the possibility of parole. (§ 664, subd. (e).) Under section 3046, a term of life with the possibility of parole carries minimum parole eligibility at seven years. Defendant contends the count 1 sentence of “ ‘seven years to life' ” should be “life with possibility of parole.” She urges us to order correction of the alleged error because section 3046 could be amended to provide a shorter interval for parole eligibility while defendant is serving her term and she would be entitled to receive the benefit of any shortened period of parole ineligibility.
Defendant has failed to demonstrate the sentence imposed by the trial court here is unlawful. Attempted murder on a police officer is punishable by imprisonment in the state prison for a term of life with the possibility of parole. (§ 664, subd. (e).) The minimum parole ineligibility period is seven years. (§ 3046. subd. (a)(1); People v. Jefferson (1999) 21 Cal.4th 86, 96 (Jefferson).)
In Jefferson, our Supreme Court considered the practice of including the minimum term of imprisonment in the pronouncement of an indeterminate life sentence, and concluded that “it is not improper for the trial court to include, as part of a defendant's sentence, the minimum term of confinement the defendant must serve before becoming eligible for parole.” (Jefferson, supra, 21 Cal.4th at p. 102, fn. 3; see id. at p. 99 [“section 3046 establishes a minimum term”].) The court explained, “By including the minimum term of imprisonment in its sentence, a trial court gives guidance to the Board of Prison Terms regarding the appropriate minimum term to apply, and it informs victims attending the sentencing hearing of the minimum period the defendant will have to serve before becoming eligible for parole. Thus, when the trial court here pronounced defendants' sentences, it properly included their minimum terms....” (Id. at p. 102, fn. 3.)
Defendant's argument that she would be prejudiced if the Legislature amends the law is speculative, and not a basis for us to alter defendant's sentence. If defendant believes at some future date that a statutory change should apply retroactively to her sentence, it will be incumbent on her to seek relief on that basis.
III. DISPOSITION
The trial court is ordered to amend the abstract of judgment to delete the words “on P.O.” for count 5 and send a copy to the California Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
WE CONCUR: Banke, J., Sanchez, J.