Opinion
2d Crim. No. B295774
05-28-2020
THE PEOPLE, Plaintiff and Respondent, v. MAURICE JONES, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. TA144623)
(Los Angeles County)
Maurice Jones appeals a judgment following conviction of voluntary manslaughter, with a finding that he personally used a deadly and dangerous weapon (knife). (Pen. Code, §§ 192, subd. (a), 12022, subd. (b)(1).) We affirm.
All statutory references are to the Penal Code unless stated otherwise.
This appeal concerns the tragic death of 57-year-old James Bills, the boyfriend of Jones's mother and part of the Jones extended family. Jones, his mother, his grandmother, his five minor siblings, and Bills lived in two inoperable vehicles in a homeless encampment in Los Angeles. What began with an accidental drink spill inside one of the vehicles developed into a brawl among the family members and led to Jones stabbing Bills in the chest with a small "antique sword." Jones now challenges the use of misdemeanor juvenile adjudications to impeach his trial testimony, the trial court's failure to instruct regarding a different theory of involuntary manslaughter, and the imposition of sentencing fines and assessments without determining his ability to pay.
FACTUAL AND PROCEDURAL HISTORY
The Jones extended family consisted of Jones's mother, Keshlia, his grandmother, Beulah Jones-Stokes, his five minor siblings, and Bills. In the morning of October 18, 2017, Jones and a younger brother argued and began to fight. Keshlia, another brother, and Bills joined the fight. During the fight, Jones stabbed Bills in the chest with a double-edged antique knife. Keshlia asked a bystander to summon medical assistance. Despite emergency care by paramedics, Bills died.
We refer to members of the Jones family by their first names not from disrespect, but to ease the reader's task. We also do not identify the minor children by name. --------
Los Angeles Sheriff's Deputy Elsie Medina arrived at the scene while the paramedics were treating Bills. She interviewed James Choi, a local business owner, who witnessed two men fighting. Choi stated that one man held a screwdriver that he dropped. Keshlia picked up the tool and placed it in a vehicle. Choi identified the men who were fighting as the homeless Lunsford brothers.
Later that day, Los Angeles County Sheriff's Deputies John Carlin and Ralph Hernandez investigated the crime. They found an 18-inch, double-edged blade in the bushes near the crime scene.
Deputy Carlin interviewed Cordarrius Lunsford in a recorded interview. Lunsford stated that he was awakened by sounds of fighting and saw Jones and two of Jones's younger brothers fighting. Lunsford approached the men to break up the fight, but retreated when the participants threw objects at each other. Bills sat on nearby steps. Jones approached Bills and "swung on him" but may not have landed the blow. Jones then descended the steps and Bills followed. Bills "swung on" Jones, who then pushed Bills down and kicked him in the head. Bills recovered and Keshlia moved between Jones and Bills. Jones then stabbed Bills with a knife, after which he dropped the knife, apologized, and fled. Lunsford telephoned for emergency police and medical assistance.
Lunsford was not an available witness at trial, but at the preliminary examination he testified that he did not see Jones stab Bills. He also did not recall his statements made during his police interview.
The sheriff's deputies also interviewed Jones's two teenage brothers in a recorded interview. They stated that the altercation began after Jones spilled a drink inside the vehicle. Both brothers fought with Jones. Jones then fought with Bills and stabbed him. One brother stated that Jones, Keshlia, and Bills had "wrestl[ed]" over the knife. The other brother stated that he did not see the stabbing because the crime occurred quickly.
At trial, one brother testified that Bills "ran into the knife and stabbed his self by swinging." The other brother testified that during the fray, Bills struck Jones three or four times in the face. Other family members threw a broom, bucket, and barbeque grill at Jones.
Deputy Carlin interviewed Keshlia in a recorded interview. She stated that Jones had an antique knife that belonged to Bills. She and Bills attempted to take the knife from Jones but when Bills stepped in front of Jones, Jones stabbed him.
Keshlia was not an available witness at trial, but at the preliminary examination she testified that family members were fighting and throwing objects at each other. Jones held an antique knife as Bills approached him. Keshlia testified that she did not see the stabbing.
Although Jones-Stokes stated during a police interview that she was confined inside a vehicle during the fight, she testified at trial that she witnessed the chaotic incident. She stated that she separated family members who were attacking Jones. Jones-Stokes testified that she saw Bills go towards Jones, but she did not see how Bills was stabbed. She also heard Jones apologize thereafter and saw him flee the scene.
At trial, Jones testified that his mother and other family members attacked him after he accidentally spilled a drink in the vehicle. His mother placed him in a headlock, pulled his hair, and struck him in the face. His brothers and Bills joined his mother in attacking him. Bills then threw a blade at him. The blade fell to the ground and Jones picked it up. He and Bills wrestled over the blade and Bills was stabbed.
Deputy Medical Examiner Lawrence Nguyen performed an autopsy on Bills's body. Nguyen opined that Bills died from a single stab wound in the chest which perforated his lung and pulmonary artery. The nature of the wound suggested that it was inflicted by a double-edge blade. Bills also had abrasions on his face and a hematoma on his brain which may have been caused by a blow or kick to the head.
Approximately one year later, the family engaged in another altercation involving a baseball bat as a weapon. Keshlia struck two of her sons with the bat.
The jury acquitted Jones of murder, but convicted him of the lesser included offense of voluntary manslaughter. (§ 192, subd. (a).) It also found that he personally used a deadly and dangerous weapon in the commission of the crime. (§ 12022, subd. (b)(1).)
The trial court sentenced Jones to a prison term of seven years, which consisted of a six-year term for the manslaughter count and a one-year term for the deadly weapon enhancement. The court imposed a $5,000 restitution fine, a $5,000 parole revocation restitution fine (suspended), a $40 court operations assessment, a $30 criminal facilities assessment; and awarded Jones 484 days of presentence custody credit. (§§ 1202.4, subd. (a), 1202.45, 1465.8, subd. (a); Gov. Code, § 70373.) At sentencing, Jones did not object to the amount of the fines and assessments imposed nor did he request a hearing regarding his ability to pay.
Jones appeals and contends that 1) the trial court prejudicially erred by permitting the prosecutor to impeach his credibility with prior juvenile adjudications; 2) the trial court erred by not instructing regarding the theory of involuntary manslaughter set forth in People v. Brothers (2015) 236 Cal.App.4th 24, 34; and 3) the trial court erred by not determining his ability to pay prior to imposing fines and assessments at sentencing.
DISCUSSION
I.
Jones argues that the trial court erred by permitting the prosecutor to impeach his credibility with two prior juvenile adjudications, a tactic he describes as "overkill." He asserts that the error was prejudicial, pointing out the lengthy jury deliberations and the inflammatory nature of the adjudications. Jones contends that the error denied him a fair trial and due process of law in violation of the federal and state constitutions.
Prior to Jones's testimony, the trial court ruled that the prosecutor would be permitted to impeach Jones's credibility by "the date, the charge, only" of two juvenile adjudications. The adjudications were sustained in 2013 for threatening a school official, and in 2016 for assault by means of force likely to produce great bodily injury. (§§ 71, 245, subd. (a)(4).) The court's ruling followed its express analysis pursuant to Evidence Code section 352.
Thereafter, defense counsel posed these questions to Jones during his testimony: "Is is true that on March 22, 2012, about five-and-a-half years ago, you were arrested for the charge of threatening a public officer, a crime of moral turpitude, which resulted in a sustained juvenile petition on January 24, 2013?" Jones responded affirmatively. Defense counsel continued: "And is it true that on July 26, 2014, almost four years ago, you were arrested for a separate crime of moral turpitude which resulted in a sustained petition on September 16, 2016, about two years later?" Again, Jones responded affirmatively. Finally, defense counsel asked: "And did you take responsibility for those incidents?" Jones responded "Yes."
The trial court has broad discretion to determine the admissibility of evidence, including impeachment of witness credibility. (People v. Wheeler (1992) 4 Cal.4th 284, 293, superseded by statute as stated in People v. Duran (2002) 97 Cal.App.4th 1448, 1460; People v. Bedolla (2018) 28 Cal.App.5th 535, 555 [juvenile adjudication].) We review the court's ruling to admit or exclude impeachment evidence for an abuse of discretion. (People v. Ledesma (2006) 39 Cal.4th 641, 705; Bedolla, at p. 555.) The erroneous admission of impeachment evidence is harmless if it is not reasonably probable the defendant would have obtained a more favorable result in the absence of the evidence. (Bedolla, at p. 555.)
" 'When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify.' " (People v. Edwards (2013) 57 Cal.4th 658, 722.) The court must also weigh the probative value of the evidence against any prejudicial effect, pursuant to Evidence Code section 352. (People v. Johnson (2019) 8 Cal.5th 475, 521 [statement of general rule].) The issue of prejudice also subsumes the number of prior offenses involving moral turpitude used for impeachment. (People v. Green (1995) 34 Cal.App.4th 165, 183 ["There is no steadfast rule regarding the precise number of prior convictions which may be admitted in a particular case"].)
Here the trial court did not abuse its discretion by permitting evidence of Jones's sanitized juvenile adjudications to impeach his testimony. The adjudications were not remote in time, they were not for the same or similar conduct as the charged offense, and the threat of impeachment did not preclude Jones from testifying at trial. Jones's credibility was also at issue; he claimed that he stabbed Bills by accident or in self-defense. Jones testified that his family members were mistaken or untruthful in their earlier statements to sheriff's deputies. Thus, his juvenile adjudications involving moral turpitude were relevant and not unduly prejudicial. (People v. Bedolla, supra, 28 Cal.App.5th 535, 556 [impeachment by crimes of moral turpitude relevant in "he said-she said" credibility contest].) There was no error, abuse of discretion, or denial of due process rights to a fair trial.
II.
Jones argues that the trial court erred by not instructing regarding the theory of involuntary manslaughter set forth in People v. Brothers, supra, 236 Cal.App.4th 24, 34, i.e., involuntary manslaughter based on commission of an inherently dangerous felony. He asserts that the jury may have concluded that his conduct exceeded mere brandishing and the instructions as given precluded a finding of involuntary manslaughter. Jones claims that the failure to instruct on this third theory of involuntary manslaughter denied him due process of law pursuant to the federal and state constitutions.
The trial court must instruct sua sponte on all theories of a lesser included offense that find substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) The court is not obliged to instruct regarding theories that do not have substantial evidentiary support. (Ibid.) "[T]he existence of 'any evidence, no matter how weak' will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is 'substantial enough to merit consideration' by the jury." (Ibid.)
The crime of involuntary manslaughter can be committed by "the commission of an unlawful act, not amounting to a felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b).)
Here the trial court instructed regarding murder, voluntary manslaughter, and involuntary manslaughter pursuant to the two statutory theories. As properly given, the evidence supported an involuntary manslaughter instruction based upon Jones's misdemeanor brandishing of the antique knife. (§ 417, subd. (a)(1) [misdemeanor brandishing].) The court also instructed regarding self-defense, defense of others, unreasonable self-defense, and killing by accident.
The trial court did not err by not instructing sua sponte regarding the Brothers theory of involuntary manslaughter. One reasonable inference from the evidence at trial was that Jones killed Bills while brandishing the antique knife. The court provided instruction regarding this theory of involuntary manslaughter. There was no evidentiary basis to expand the instruction to include an inherently dangerous felony. (People v. Breverman, supra, 19 Cal.4th 142, 162.)
III.
Jones contends that the trial court failed to determine his ability to pay before imposing statutorily required fines and assessments at sentencing. He asserts that he has been denied due process of law and is entitled to a hearing to determine his ability to pay. Jones points out that he is 19 years old, homeless, and unemployed; he is also described by his criminal history as mentally disturbed. He adds that he received the ineffective assistance of counsel because his attorney did not object to the fines and assessments.
Jones relies upon People v. Dueñas (2019) 30 Cal.App.5th 1157. In Dueñas, the court held that imposing assessments pursuant to section 1465.8, subdivision (a) (court operations) and Government Code section 70373 (court facilities) without a hearing on the defendant's ability to pay violates due process of law pursuant to the federal and state constitutions. (Dueñas, at p. 1168.) Neither statute expressly prohibits the trial court from considering the defendant's ability to pay. Pursuant to section 1202.4, subdivisions (b)(1) and (c), the court is expressly prohibited from considering the defendant's ability to pay in imposing a restitution fine unless the fine imposed exceeds $300. Dueñas holds that the court must stay execution of the restitution fine unless or until the prosecutor demonstrates that the defendant has the ability to pay. (Id. at p. 1172.)
Here the trial court imposed a $40 assessment pursuant to section 1465.8, subdivision (a), a $90 assessment pursuant to Government Code 70373, and a $5,000 restitution fine pursuant to section 1202.4, subdivision (b). The court also imposed and suspended a $5,000 parole revocation restitution fine. (§ 1202.45.)
Jones did not object to these financial penalties in the trial court. His failure to challenge the assessments and fines imposed at sentencing precludes doing so on appeal. (People v. Aguilar (2015) 60 Cal.4th 862, 864 [challenge to probation-related costs and fees paid to trial counsel].) In People v. Castellano (2019) 33 Cal.App.5th 485, the court excused the defendant's failure to raise the issue in the trial court. Castellano reasoned that the defendant's challenge is based on a newly announced constitutional principle that could not have been reasonably anticipated at the time of trial. (Id. at p. 489.) People v. Frandsen (2019) 33 Cal.App.5th 1126 reached a different conclusion. (Id. at p. 1155 ["traditional and prudential virtue" requires parties to raise issue in the trial court prior to seeking appellate review].)
It is understandable that trial counsel representing criminal defendants in cases prior to Dueñas were more concerned with issues of guilt and sentencing than in court assessments and restitution fines, particularly in the case before us with a serious violent crime and lengthy sentence.
Nevertheless, as Frandsen points out, although this issue may have been slowly simmering on the backburner, it was there to be raised. Jones has forfeited this argument. (People v. Avila (2009) 46 Cal.4th 680, 729 [defendant forfeits issue by failing to object to imposition of restitution fine based on inability to pay]; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 [forfeiture of ability-to-pay argument by failure to object].) "Given that the defendant is in the best position to know whether he has the ability to pay, it is incumbent on him to object to the fine and demonstrate why it should not be imposed." (People v. Frandsen, supra, 33 Cal.App.5th 1126, 1154.)
In any event, section 1202.4, subdivision (c) expressly allows the trial court to consider a defendant's ability to pay when a restitution fine is imposed above the $300 statutory minimum. Having not objected to the $5,000 restitution fine, although permitted to do so by statute, Jones cannot complain regarding the $40 and $30 assessments. (People v. Torres (2019) 39 Cal.App.5th 849, 860.)
Jones also has not established that his counsel was ineffective for failing to object to the fine and assessments. Jones has the ability to earn prison wages while incarcerated and obtain employment upon his release from prison. Counsel is not required to make an unmeritorious objection. (People v. Jennings (2010) 50 Cal.4th 616, 667, fn. 19.)
The judgment is affirmed.
NOT TO BE PUBLISHED.
GILBERT, P. J. I concur:
YEGAN, J.
PERREN, J.
H. Clay Jacke II, Judge
Superior Court County of Los Angeles
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Acting Assistant Attorney General, Steven D. Matthews and Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.