Opinion
A149507
05-02-2018
THE PEOPLE, Plaintiff and Respondent, v. SHANDEN STANLEY, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H57966)
Defendant Shanden Stanley appeals a judgment convicting him of, among other things, kidnapping, making a criminal threat, and attempted murder and sentencing him to 150 years to life in prison. He contends his trial attorney rendered ineffective assistance by failing to object to testimony by an expert witness that the victim's recollection of the person who shot her appeared to be a genuine recollection rather than something she had been told while suffering from amnesia. He also asserts numerous errors regarding sentencing and requests correction of errors in the abstract of judgment. We find no ineffective assistance of counsel and therefore shall affirm the conviction. We agree, however, that remand for resentencing and correction of the abstract of judgment is required.
Factual and Procedural Background
On October 2, 2015, defendant was charged by information with attempted murder (Pen. Code, §§ 187(a), 664; count 1), mayhem (§ 203; count 2), two counts of unlawfully possessing a firearm (§ 29800, subd. (a)(1); counts 3, 8), two counts of inflicting corporal injury to a relationship partner (§ 273.5, subd. (a); counts 4, 9), making a criminal threat (§ 422; count 5), kidnapping (§ 207, subd. (a); count 6), and assault with a firearm (§ 245, subd. (a)(2); count 7). As to the attempted murder and mayhem charges, the information alleged that defendant had personally discharged a firearm causing great bodily injury (§§ 12022.5, subd. (a), 12022.7, subd. (a), 12022.53, subds. (b), (c), (d), (g)). As to one of the domestic violence charges and the threats, kidnapping, and assault charges, the information alleged that defendant had personally used a firearm (§§ 1203.06, subd. (1)(1), 12022.5, subd. (a), 12022.53, subds. (b), (g)). Finally, the information alleged that defendant had suffered three prior felony convictions, each of which had resulted in a prior prison term (§ 667.5, subd. (b)), and two of which constituted strikes (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)).
All statutory references are to the Penal Code unless otherwise noted.
Defendant admitted one of the charged prior offenses and the parties agreed to a bifurcated court trial on the remaining prior conviction allegations.
At trial, evidence was presented regarding charged offenses committed on two separate days in October 2013. Counts 5 through 9 (criminal threat, kidnapping, assault with a firearm, unlawful possession of a firearm, and corporal injury to a relationship partner) were alleged to have occurred on or around October 18. The victim, defendant's ex-girlfriend Irma V., testified that late in the night on October 17, defendant threatened, kidnapped and assaulted her. Defendant has not challenged the sufficiency of the evidence in support of these counts, so we need not recite the details of that incident.
Counts 1 through 4 (attempted murder, mayhem, unlawful possession of a firearm, and corporal injury to a relationship partner) were alleged to have been committed on October 31. Irma testified that she was working as a prostitute at the time and that she had arranged to meet her "date" outside her apartment complex around 11:00 p.m. that night. As she and the date were walking from the complex, defendant pulled up in his car and asked to speak to her. When defendant exited the car, she saw that he was carrying a gun. Defendant tried to pull her into his car and she yelled for help. She broke free and went back into the apartment complex and defendant followed her. The last thing she remembered was falling down after being shot.
Alejandro Deleon testified with a grant of immunity. He testified that on October 31, defendant asked him to arrange a "date" with Irma. Defendant drove with Deleon to Irma's apartment complex. He met Irma outside her gate as arranged and walked with her back towards the car. As they approached the car, defendant came out of the bushes and told Irma that he wanted to talk to her. He had a semiautomatic gun in hand and as he talked he pointed it at her. Defendant tried to get her into the car, but backed away when another car pulled up. Irma ran in front of the car and asked for help. When the occupants of the car ignored her, she ran into the apartment complex. Defendant followed Irma into the complex and Deleon lost track of them. Soon, he heard gun shots and then saw defendant run out of the gate, back towards the car.
Evidence was presented that defendant's cellphone and Deleon's cellphone had six contacts on October 31 and that Deleon's cellphone took a call from Irma's cellphone at 10:56 p.m. that night.
A couple that lived in the apartment complex testified about what they saw and heard that night. The woman testified that around 11:00 p.m., she heard a woman calling for help. Looking out her window, she saw a man, who she later identified as defendant, wearing a dark hooded sweatshirt, pulling a woman. She woke her husband and called the police, then heard a gunshot. Her husband testified that after hearing the gunshot he looked out the window and saw a man wearing a dark hooded sweatshirt standing near a person laying on the ground.
Police arrived at the scene and found Irma laying on the ground in a pool of blood. Emergency personnel responded within minutes and took Irma to the hospital. The gunshot to Irma's head had caused traumatic injury, swelling, and bleeding in the brain. She was in a coma for about three weeks after surgery and remained in the hospital for about three months.
On November 21, a police investigator met with Irma at the hospital. She was drowsy and on medication; she could not speak and fell asleep or lost consciousness several times during the meeting. When the inspector showed Irma a picture of Deleon, Irma made hand gestures and mumbled, "mom."
The inspector next met Irma on December 5. At that point, she was in a rehabilitation center at a different hospital. She seemed much improved, but still could not remember who had shot her. She still thought Deleon's mother had shot her. The inspector showed Irma defendant's photograph and told her he had been arrested, but Irma repeated that she did not know who had shot her.
When the inspector returned the next day, Irma's condition had further improved. She said she was beginning to remember the shooting. She remembered meeting Deleon that night, then arguing with defendant, and running into the driveway of her apartment complex. She recalled that defendant was trying to talk to her, and she remembered also yelling at him not to hurt her. She also said that she recognized Deleon as someone who she had previously seen with defendant.
The inspector last spoke with Irma on January 15, 2014. At that time she was very alert. She told the officer that defendant had a gun on October 31, 2013. She also explained that she had seen her neighbor as she ran from defendant.
Dr. Michael Weber, a clinical neuropsychologist, testified as an expert in retrograde amnesia, or loss of memory of events preceding an injury. He testified that it is "not unusual early after a traumatic injury for the amount of retrograde amnesia to be greater . . . and then over time, with healing, they may recall more and more information that comes closer in time but often stops short of the actual point of injury." To determine if the amnesia is shrinking, doctors "look to see if a person is coming out of a confused state . . . . [A]re they aware of themselves, their age, their location, the date, can they recall why they are in the hospital and what things have happened to them." It is "very possible" that memories can come back in "bits and pieces."
Based on his review of Irma's medical records, he testified that "early on after her injury . . . she had significant dysfunction across her entire brain." "She was not able to consistently report details of where she was, what had happened. She made statements that were documented that reflected an inaccurate understanding of circumstance, implausible statements about what might have happened to her or why she was in the hospital." By the time he began treating Irma on December 5, 2013, she was evolving out of that confused state. She was still suffering from amnesia, but she "had an understanding that she had suffered a gunshot wound from having been presented with this information by staff over time." She was not reporting "much understanding of the events of what had happened or how it had happened."
When he spoke with Irma the following day, however, he noticed improvement. She "was more somber and a bit tearful, and without any statements or questions [by the doctor], she began saying 'I know who did it' and 'I know he shot me,' and she was very distressed that this would have happened." Irma told him that the father of her younger child had shot her. The expert testified that after December 6 "she was consistent with that understanding. There was nothing that she ever said . . . that was implausible, bizarre, unusual, and her statements when she did bring up the issue were very consistent."
When asked whether it is "possible to recreate memories based on what other people have said to you . . . when you're suffering from retrograde amnesia," the expert replied, "In general with the brain, it is possible, if you think something often enough, you can create a sense that that memory might be true even if it isn't. [¶] . . . [I]f there's a period of retrograde amnesia, can I teach a person what happened during that time, they can understand, this is what I was told. But you can't teach them to have the experience of, Now I remember this is exactly what happened, I can remember being there, I remember it as a typical experience in life when I know time, place, as a genuine recollection of being involved." When asked whether Irma's memory was "genuine or was her memory what she was saying other people had told her," the expert replied that he believed it was "a report she felt was genuine. I did not have information nor do I recall ever having information she had discussed the issue with other therapists, physicians, or even with her family." He added that she was "extremely angry, hurt, [and] distressed" and that her emotional response was consistent with the reaction he would anticipate.
On cross-examination, the expert was asked whether it could affect Irma's recollection if, on December 5, the police inspector had shown her defendant's picture and asked if he was the person who shot her. The expert answered, "It may facilitate thinking about the experience. It may facilitate going back and looking for information. Whether it would alter the content of what she recalled and then later reported with consistency, I'm not sure."
The jury found defendant guilty on all charges and found true all of the enhancement allegations. The court found true the allegations of prior offenses, except one prior prison term allegation.
Defendant was sentenced to a total term of 150 years to life in prison, calculated as follows: On count 1 for attempted murder, the court imposed 25 years to life, with a consecutive 25 years to life for discharging a firearm causing great bodily injury, with a consecutive 10 years resulting from "each five-year prior." On count 5 for making a criminal threat, the court imposed a consecutive term of 25 years to life, with a consecutive 10 years for the priors and a consecutive 10 years for the personal use of a firearm. On count 6 for kidnapping, the court imposed a consecutive term of 25 years to life, with a consecutive 10 years for the priors and a consecutive 10 years for the personal use of a firearm. The court imposed concurrent terms of 25 years to life on counts 3, 7, and 8 and stayed the sentences imposed on counts 2, 4, and 9 under section 654.
Defendant timely filed a notice of appeal.
Discussion
1. Ineffective Assistance of Counsel
Defendant contends that his trial counsel rendered ineffective assistance by failing to object to the expert's testimony that Irma's memory that defendant shot her was a genuine recollection rather than repetition of information she was told by others.
"The standard for showing ineffective assistance of counsel is well settled. 'In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel. [Citation.] If the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged, an appellate claim of ineffective assistance of counsel must be rejected unless counsel was asked for an explanation and failed to provide one, or there simply could be no satisfactory explanation. [Citation.] . . .' [Citation.] 'Failure to object rarely constitutes constitutionally ineffective legal representation.' " (People v. Gray (2005) 37 Cal.4th 168, 206-207.)
Defendant argues that the expert's testimony invaded the province of the jury by testifying, in effect, that the witness was telling the truth that defendant shot her. Defendant is correct that as a general rule, "an expert may not give an opinion whether a witness is telling the truth, for the determination of credibility is not a subject sufficiently beyond common experience that the expert's opinion would assist the trier of fact; in other words, the jury generally is as well equipped as the expert to discern whether a witness is being truthful." (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 82.) The expert here, however, did not testify that the witness's memory was accurate or truthful. He testified that he believed she was reporting a genuine recollection rather than repeating something she had been told by others.
Moreover, the expert properly testified that his treatment of Irma included determining whether she was regaining her memory. He testified that while it was possible to teach a patient to understand what had happened, it was not possible to teach a patient to have a particular memory of an incident. On cross-examination, he acknowledged that he was unsure if the officer's questions could have influenced the content of her memory, but clarified that in his experience, when patients "recover and retrieve information from prior to a traumatic experience, it is their own recovered information." He had not "had the experience where it's been colored and altered by other individuals' input." He also testified that when Irma first reported her recollection of the incident, she was angry, hurt, and distressed and that her emotional reaction was consistent with the reaction he would anticipate when a person regains his or her memory following a traumatic event.
Thus, the expert testimony was not that Irma's recollection was necessarily correct, but only that it was genuinely what she remembered. The major portion of the testimony unquestionably was proper. Even if, arguendo, any portion of the testimony crossed the line, we cannot say that counsel's failure to interrupt the testimony with an objection was an inappropriate strategic decision. In all events, given the other substantial evidence identifying defendant as the shooter—from Deleon and the neighbor as well as the circumstantial evidence of defendant's prior threats and assaults against Irma and the cell phone calls—it is not reasonably likely that the jury would have reached a different verdict had portions of the expert's opinion been stricken.
2. Sentencing
Defendant contends that the 30 years of his sentence imposed based on his two prior serious felony convictions pursuant to section 667, subdivision (a), must be stricken because the enhancement allegations were not explicitly pleaded in the charging document. As defendant argues, the information in this case alleged that defendant committed three prior offenses: possession for sale of cocaine base (Health & Saf. Code, § 11351.5); assault with a deadly weapon (§ 245, subd. (a)(1)); and oral copulation of a person under the age of 14 (§ 288a, subd. (c)(3)). The information included three special allegations in connection with the last two of these prior offenses: (1) The information alleged that the convictions came within the purview of section 667.5, subdivision (b) because defendant served a separate term of imprisonment for each prior, and that he "did not remain free of prison custody for, and did not commit an offense resulting in a felony conviction during, a period of five years subsequent to the conclusion of said term." (2) The information alleged that the prior convictions were serious felonies under section 1192.7, subdivision (c) and violent felonies under section 667.5, subdivision (c), so any sentence "shall be served in the state prison pursuant to . . . section 1170(h)(3)." (3) The information alleged that having suffered the prior convictions, defendant must be sentenced pursuant to the "three strikes" law, sections 1170.12, subdivision (c)(2) and 667, subdivision (e)(2) and was ineligible for probation pursuant to "sections 1170.12(a) and 667(c)." The information did not allege that any of the priors were serious felonies under section 667, subdivision (a)(1).
Section 667, subdivision (a)(1) reads: "In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state . . . shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively." Under section 1170.1, subdivision (e), "All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact."
The Attorney General's argument that defendant has forfeited this argument on appeal by failing to object in the trial court is without merit. Defendant has asserted both a constitutional due process claim and a state law claim based on section 1170.1, subdivision (e). As the court explained in People v. Nguyen (2017) 18 Cal.App.5th 260, 272 (Nguyen), while it is possible that a defendant might forfeit his constitutional objection by failing to raise it below, "he could not and he did not forfeit a statutory objection, based on section 1170.1, subdivision (e), because the violation resulted in an unauthorized sentence."
The Attorney General acknowledges that in Nguyen, the court adopted defendant's argument. The court in that case held that sentence enhancements under section 667, subdivision (a) cannot be imposed unless the enhancements were expressly pled in the charging documents. (Nguyen, supra, 18 Cal.App.5th at pp. 266-267.) The Attorney General argues that Nguyen was wrongly decided. We disagree. The court in Nguyen, correctly reasoned that because section 1170, subdivision (e) requires that all enhancements "be alleged in the accusatory pleading," it is not sufficient to merely allege the fact of the prior conviction without further alleging that conviction of the current offense will subject the sentence to enhancement under the specific statutory provision. (Id. at pp. 266-267.) We disagree with the Attorney General's argument that the court in Nguyen erred in placing reliance on People v. Mancebo (2002) 27 Cal.4th 735, 743-745. In that case the Supreme Court held that the trial court's use of the unpled multiple victim circumstance to impose a one strike sentence violated the express pleading provisions of the one strike law (§ 667.61, subd. (f)), even though the defendant was charged with and found guilty of offenses against two victims. (See Nguyen, supra, at p. 266 ["[W]e are unable to distinguish the language of . . . section 667.61, former subdivision (i) ('alleged . . . and . . . either admitted . . . or found to be true') from the language of . . . section 1170.1, subdivision (e) ('alleged . . . and either admitted . . . or found to be true')."].) The court noted that the omission of the enhancement allegation from the charging document was particularly problematic when, as in this case, the information expressly alleges other enhancements based on the prior convictions but fails to mention section 667, subdivision (a). (Id. at p. 267 ["[T]he People allege a prior serious felony conviction, and when they cite the three strikes law but do not cite the prior serious felony conviction statute, we can only conclude that they have made 'a discretionary charging decision.' "].) A criminal defendant is entitled to sufficient notice of the enhancements alleged against him so that he may calculate his potential prison exposure. (See People v. Mancebo, supra, 27 Cal.4th at p. 752 ["[I]n many instances a defendant's decision whether to plea bargain or go to trial will turn on the extent of his exposure to a lengthy prison term. Under the People's position, there would be less incentive to plea bargain since the defendant would not be informed in advance of trial or sentencing that the prosecution intends to rely on the fact of convictions of offenses against multiple victims in support of a harsher One Strike term."].)
We agree with the Attorney General that the sentencing error in this case requires remand for resentencing. Because the prior serious felony conviction enhancements are stricken, the prior prison term enhancements under section 667.5, subdivision (b), which were properly alleged in the information, are revived. (Nguyen, supra, 18 Cal.App.5th at p. 271.) As the Attorney General notes, this enhancement is mandatory and should also be imposed on the concurrent terms imposed on counts 3, 7 and 8. In addition, the parties agree that on remand, the court should consider whether to exercise its discretion to strike the weapons enhancements under recent amendments to sections 12022.53, subdivision (h) and 12022.5, subdivision (c). Finally, on remand, the trial court shall correct the abstract of judgment, clerk's minutes and calculation of presentence custody credits as identified by the parties.
Section 667.5, subdivision (b) reads: "Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence . . . is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended for any felony; provided that no additional term shall be imposed under this subdivision for any prison term or county jail term imposed under subdivision (h) of Section 1170 or when sentence is not suspended prior to a period of five years in which the defendant remained free of both the commission of an offense which results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or any felony sentence that is not suspended. A term imposed under the provisions of paragraph (5) of subdivision (h) of Section 1170, wherein a portion of the term is suspended by the court to allow mandatory supervision, shall qualify as a prior county jail term for the purposes of the one-year enhancement." --------
Disposition
The judgment is affirmed except with respect to the sentence imposed. The matter is remanded for resentencing.
/s/_________
Pollak, Acting P.J. We concur: /s/_________
Siggins, J. /s/_________
Jenkins, J.