Opinion
E072253
04-01-2020
THE PEOPLE, Plaintiff and Respondent, v. ISAAC CHRISTOPHER WILLIAMS, Defendant and Appellant.
Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BAF1800829) OPINION APPEAL from the Superior Court of Riverside County. Anthony R. Villalobos, Judge. Affirmed in part; reversed in part with directions. Arielle Bases, under appointment by the Court of Appeal, for Defendant and Appellant. No appearance for Plaintiff and Respondent.
A jury found defendant and appellant, Isaac Christopher Williams, guilty of possession of a firearm by a prohibited person. (Pen. Code, § 29800, subd. (a)(1), count 4.) The court thereafter found that defendant had suffered three prior prison terms. (§ 667.5, subd. (b).) The court sentenced defendant to the midterm of two years on count 4 and imposed (but stayed) the sentence on the three prior prison term enhancements.
All further statutory references are to the Penal Code unless otherwise stated.
After defense counsel filed a notice of appeal, this court appointed counsel to represent him. Counsel has filed a brief under the authority of People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738, setting forth a statement of the facts, a statement of the case, and three potentially arguable issues: (1) whether the court erred in denying defendant's Wheeler motion; (2) whether the court erred in denying defendant's motion for a mistrial for purported Griffin/Doyle error; and (3) whether the court erred in admitting character evidence via admission of the audio of a 911 call. The judgment is reversed in part and affirmed in part.
People v. Wheeler (1978) 22 Cal.3d 258 (Wheeler).
Doyle v. Ohio (1976) 426 U.S. 610 (Doyle) (prosecution prohibited from exploiting the defendant's post-Miranda silence); Griffin v. California (1965) 380 U.S. 609 (Griffin) (prosecution prohibited from exploiting the defendant's failure to testify at trial).
The court erred in imposing but staying punishment on the prior prison term enhancements. (People v. Baldwin (2018) 30 Cal.App.5th 648, 653 ["When found to be true, imposition of the one-year consecutive sentence enhancement is 'mandatory unless stricken.'"].) Moreover, we note that the recent changes to section 667.5, subdivision (b), provide that prior prison term enhancements may only be imposed for certain sexually violent offenses. (People v. Lopez (2019) 42 Cal.App.5th 337, 339; People v. Jennings (2019) 42 Cal.App.5th 664, 668, 682; People v. Gastelum (2020) ___Cal.App.5th ___ .) "It is undisputed that none of [defendant's] [three] prior prison terms were for sexually violent offenses under Welfare and Institutions Code section 6600, subdivision (b)." (Lopez, at p. 342.) All published cases considering the matter have determined that the recent change to section 667.5, subdivision (b), apply retroactively to all cases that are not final. (Lopez, at p. 339 [Sen. Bill No. 136 retroactively applies to all nonfinal judgments]; Jennings, at pp. 668, 682 [same]; Gastelum, at pp. *2-*3 [same].) Defendant's case is not final. Here, the matter is strictly one of the application of clear, undisputed legal principles; thus, we shall simply direct the superior court to strike the prior prison term enhancements.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 1, 2018, officers were dispatched to a residence in response to reports of shots fired. Defendant had apparently been in the process of moving his possessions out of the home in which he had been staying when an argument and physical altercation ensued between defendant and two other residents, Jonathon Marshall and Daniel Taylor. Defendant testified that he found a pistol on the stairs during the altercation.
The parties stipulated defendant had suffered a prior felony conviction barring him from possessing a firearm. Defendant testified, "I don't need to be in possession of [the gun] because I'm a felon." --------
According to defendant, he fired a warning shot when threatened by Marshall and Taylor. He did not remember what happened thereafter, but he apparently fell down the stairs and the gun went off again. Marshall testified Taylor exclaimed that defendant had shot him after Marshall told defendant he needed to stop moving his possessions for the night. Taylor testified that defendant removed a black gun from his waistband, pointed it at him, and fired it at him after defendant felt disrespected.
Taylor testified that defendant appeared to reload the gun as Marshall came running at defendant and the two tumbled down the staircase. Taylor heard a loud pop, after which blood started pouring out of Marshall's neck. Marshall said, "He shot me." The parties stipulated that Marshall incurred a bullet wound for which he received medical care.
The People charged defendant by second amended felony information with two counts of attempted murder (§§ 664, 187, counts 1, 5), two counts of assault with a firearm (§ 245, subd. (a)(2), counts 2, 3), and one count of possession of a firearm by a felon (§ 29800, subd. (a)(1), count 4). In addition, the People alleged defendant personally discharged a firearm (§§ 12022.53, subds. (c), (d), 1192.7, subd. (c)(8), counts 1, 5), personally inflicted great bodily injury upon the alleged victims (§§ 12022.7, subd. (a), 1192.7, subd. (c)(8), counts 1, 2), and suffered four prior prison terms (§ 667.5, subd. (b)) as follows: priors 1, 2, and 3 for convictions for possession of controlled substances (Health and Saf. Code, §§ 11377, 11378) and prior 4 for obstruction of an executive officer (§ 69).
During voir dire, defense counsel moved to begin jury selection anew pursuant to Wheeler: "It's based upon the People's use of their peremptory challenges to exclude people who are Latino." The People thereafter explained their purported, nonprohibited bases for their peremptory challenges as to alleged Hispanics in the jury pool. The court found that the People's challenges were not prohibited: "I do believe that's a nonracial basis." Thus, the court denied defense counsel's Wheeler motion.
During the testimony of the neighbor of the alleged victims, the prosecutor, over defense counsel's objection, played a recording of a neighbor's 911 call during which the neighbor said defendant "has been fuckin' causing a lot of trouble over here." The prosecutor then asked defendant, "So what did you mean when you said he's been—[defendant] has been causing problems over here?" Defense counsel objected based upon Evidence Code section 1101.
The court overruled the objection instructing the neighbor to respond "just [to] anything you know as to that night . . . ." The neighbor replied, "To that day, that night? That phrase I said was—it was a summary of time I've been there." Defense counsel objected again and reserved the right to move for a mistrial. The court sustained the objection. Defense counsel requested a remedial instruction. The court ordered the neighbor's last response stricken and instructed the jury to disregard it; the court instructed the jury to consider only information regarding what happened on the night of the incident.
The court asked defense counsel if its ruling and instruction were agreeable. Defense counsel responded, "No." The court then brought counsel into chambers, outside the presence of the jury, to discuss the matter. Defense counsel moved for a mistrial alleging that the prosecutor had adduced the neighbor's "general feeling about [defendant] in all his interactions with him. So we have essentially allowed the People to introduce improper character evidence under [Evidence Code section] 1101 with regard to [defendant]." The court ruled that "the instruction I gave to the jury is sufficient. I don't believe this rises to the level of a mistrial." The court denied defendant's motion.
During defendant's case, defense counsel moved for a mistrial based upon purported Griffin/Doyle error. During cross-examination of defendant, the prosecutor asked defendant if he had "been working with [his] attorney on this case . . . ." The court reserved ruling on the motion. After the close of evidence, the court took up argument on the motion for mistrial. The court concluded that "[n]othing to attorney-client privilege or anything that was work product or anything of that nature . . . would have been derived from that question." Moreover, the court found that "it doesn't appear that the district attorney was trying to get to any post-Miranda statements . . . ." Thus, the court denied the motion.
II. DISCUSSION
We offered defendant an opportunity to file a personal supplemental brief, and we offered both parties an opportunity to file supplemental briefing regarding the one-year prior felony convictions. No supplemental briefs were filed. Pursuant to the mandate of People v. Kelly (2006) 40 Cal.4th 106, we have independently reviewed the record for potential error and find no arguable issues.
III. DISPOSITION
In accordance with the views expressed herein, the true findings on the prior prison term enhancements are reversed. The trial court is directed to strike the prior prison term enhancements. The trial court is further directed to amend the abstract of judgment and sentencing minute order to reflect the striking of the prior prison term enhancements. Finally, the trial court is directed to forward a copy of the new abstract of judgment and sentencing minute order to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. RAPHAEL
J.