Opinion
B326858
03-19-2024
THE PEOPLE, Plaintiff and Respondent, v. BRAD ALEXANDER CALLOWAY, Defendant and Appellant.
Mi Kim, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven E. Mercer and Stefanie Yee, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. SA103187, Christopher W. Dybwad, Judge. Affirmed in part; reversed in part and remanded with directions.
Mi Kim, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven E. Mercer and Stefanie Yee, Deputy Attorneys General, for Plaintiff and Respondent.
FEUER, J.
Brad Alexander Calloway appeals from a judgment entered after a jury convicted him of two counts of aggravated assault and one count of giving false information to a police officer. The jury also found true the special allegations that Calloway had personally inflicted great bodily injury during the assaults, and that the assaults caused paralysis. In a bifurcated trial, the court found Calloway had suffered a prior conviction in Louisiana that qualified as a serious or violent felony under the three strikes law (Pen. Code, §§ 667, subds. (b)-(i), 1170.12). On appeal Calloway contends the court abused its discretion by denying his motion for a mistrial and committed sentencing errors. We remand for the trial court to either strike one of the assault convictions or consolidate the convictions, and we reverse the true finding on the prior conviction allegation. We otherwise affirm the judgment of conviction but vacate the sentence and remand for further proceedings.
Further undesignated statutory references are to the Penal Code.
Calloway also argues, the People concede, and we agree the minute order and abstract of judgment from the sentencing reflect fees and fines that were not orally imposed at the hearing. On remand, the trial court should ensure any fees and fines set forth in the sentencing documents reflect the court's oral pronouncement.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Information
Calloway was charged in an information filed September 9, 2021 with one count of assault with a deadly weapon (a shod foot) (§ 245, subd. (a)(1); count 1) and one count of assault by means of force likely to produce great bodily injury (§ 245, subd. (a)(4); count 2) arising from the August 29, 2020 assault of Philip Hubbell. Calloway was also charged with falsely identifying himself to a police officer (§ 148.9, subd. (a); count 3). As to counts 1 and 2, the information specially alleged Calloway personally inflicted great bodily injury causing Hubbell to suffer permanent paralysis (§ 12022.7, subds. (a), (b)). The information also specially alleged Calloway had been convicted of two prior serious or violent felonies under the three strikes law (§§ 667, subd. (d), 1170.12, subd. (b)).
Calloway does not dispute that a "shod foot," in other words, a shoe worn by an assailant, can constitute a "deadly weapon or instrument" within the meaning of section 245, subdivision (a)(1). (See People v. Aguilar (1997) 16 Cal.4th 1023, 1035 ["There can be no doubt that some footwear, such as hobnailed or steel-toed boots, is capable of being wielded in a way likely to produce death or serious injury, and as such may constitute weapons within the meaning of section 245, subdivision (a)(1). While evidence is lacking regarding the type of footwear worn by the four assailants, that they were shod is not disputed."].)
The prosecution presented evidence on only one of the two alleged prior convictions at the bifurcated bench trial.
2. The Evidence at Trial
Calloway's first trial took place in February 2022. The jury found him guilty on count 3 but was unable to reach a verdict on counts 1 and 2. The court declared a mistrial on those counts.
The second trial commenced in May 2022. The prosecutor presented evidence that on the morning of August 29, 2022,
Hubbell had been waiting for a bus on a street corner outside a gas station in Santa Monica. The jury was shown surveillance videos in which a man is seen approaching Hubbell. The man then attacked Hubbell, punching him several times in the head and face. After Hubbell fell to the ground, the man stomped on his head twice.
Hubbell testified he had no memory of the attack or the eight days he spent in the hospital. Due to a brain injury caused by the attack, Hubbell has paralysis on his left side and needs a leg brace and cane to walk.
Santa Monica Police Detective George Burciaga estimated he reviewed the surveillance videos of the attack more than 100 times as part of his investigation into the crime. He described the attacker seen on the video as "male, possibly Black, 35 to 45 years old, about six feet, 165 pounds or so with dark complexion, a receding hairline, wearing a dark blue sweatshirt with black pants, black athletic shoes, and carrying a brown bag." Detective Burciaga emphasized there were several unique and "very noticeable" white images and light-colored stitching on the attacker's pants, which he pointed out in detail on the surveillance footage.
Santa Monica Police Officer James McCoy also reviewed the surveillance footage of the attack and a crime bulletin created from screen shots of the footage. Officer McCoy observed that in the video the attacker's pants had distinctive "white square tags that stood out" against the dark color of the pants. While on patrol a few days after the attack, Officer McCoy saw Calloway a few blocks from where the attack had occurred. Officer McCoy observed Calloway was similar in appearance to the attacker and was wearing pants with white tags on them. Officer McCoy testified the pants Calloway wore "bore a striking similarity" to the ones worn by the attacker in the surveillance video. Calloway also carried a navy blue sweatshirt and a brown bag that were similar to the attacker's belongings. Based on these similarities, Officer McCoy arrested Calloway for the attack on Hubbell.
Alvina Benally testified that in 2019 she spent every day hanging out at the park near where the attack later occurred. She identified Calloway, who was seated in the courtroom, as someone who often hung out at the park in that time frame. Benally also identified Calloway as the individual in the surveillance video of the attack.
Calloway presented the testimony of Dr. Mitchell Eisen, who testified as an expert on eyewitness identification, memory, and suggestibility. He explained several factors that can influence a witness's memory, including "clothing bias," which occurs when a witness recognizes the clothing a suspect is wearing more than the witness remembers the suspect's face.
3. The Motion for a Mistrial
Prior to Benally's testimony and outside the presence of the jury, the trial court instructed Benally, as it had during the first trial, that she was prohibited from mentioning that Calloway had previously assaulted her. Benally indicated she understood. However, during cross-examination, when asked about the last time she had seen Calloway, Benally said it was "when I called the cops on him." After defense counsel objected, the court stated, "I'm going to strike the last portion of the answer."
Defense counsel then asked a series of questions regarding Calloway's appearance, to which Benally answered, "I don't remember.... This was three years ago, four years ago. It was traumatizing, you know; so I don't remember a lot of things." Defense counsel did not object to this response.
Defense counsel also asked Benally how many times she had seen Calloway at the park in 2019. Benally replied, "Almost every day until he hit me." The court immediately stated the answer was stricken and excused the jury from the courtroom. Outside the presence of the jury, the court admonished Benally that she had been instructed not to mention the assault, and the court directed her not to mention it again. Defense counsel moved for a mistrial, arguing Benally's comments had tainted the jury. The court took the motion under submission and invited counsel to submit a curative jury instruction.
When the jury returned to the courtroom, the court told the jurors, "I'm going to order that the response to the last question be stricken and you are not to consider that response for any purpose." Later in the day, the court denied the motion for a mistrial and again invited counsel to submit a curative instruction. Neither counsel submitted an instruction.
4. The Verdicts and Sentence
The jury found Calloway guilty of both counts of aggravated assault (counts 1 and 2). As to each count, the jury found true the special allegations that Calloway had personally inflicted great bodily injury and had personally inflicted great bodily injury causing permanent paralysis.
In a bifurcated bench trial, the trial court found Calloway had been convicted of armed robbery in Louisiana in 2010, and the conviction qualified as a prior serious or violent felony under the three strikes law.
Calloway was sentenced as a second-strike offender to an aggregate state prison term of 11 years: double the middle term of three years on count 2, plus five years for the great bodily injury causing paralysis enhancement (§ 12022.7, subd. (b)). The court stayed the other great bodily injury enhancement pursuant to section 1170.1, subdivisions (f) and (g). On count 3, the court imposed a concurrent term of 180 days. The court stated it was "not going to sentence on count 1" because both counts of aggravated assault were based on the same act or course of conduct, citing People v. Aguayo (2022) 13 Cal.5th 974 (Aguayo).
Calloway timely appealed.
DISCUSSION
1. The Trial Court Did Not Abuse Its Discretion in Denying the Motion for a Mistrial
"A court should grant a mistrial '"only when a party's chances of receiving a fair trial have been irreparably damaged."'" (People v. Johnson (2018) 6 Cal.5th 541, 581.) This occurs when "'the court is apprised of prejudice that it judges incurable by admonition or instruction.'" (People v. Collins (2010) 49 Cal.4th 175, 198.) "A witness's volunteered statement can, under some circumstances, provide the basis for a finding of incurable prejudice." (People v. Ledesma (2006) 39 Cal.4th 641, 683.) However, "'[j]uries often hear unsolicited and inadmissible comments and in order for trials to proceed without constant mistrial, it is axiomatic the prejudicial effect of these comments may be corrected by judicial admonishment.'" (People v. McNally (2015) 236 Cal.App.4th 1419, 1428-1429.) "'It is only in the exceptional case that "the improper subject matter is of such a character that its effect . . . cannot be removed by the court's admonitions."'" (Id. at 1429.)
"'"Whether a particular incident is incurably prejudicial is by its nature a speculative matter, and the trial court is vested with considerable discretion in ruling on mistrial motions."'" (People v. Schultz (2020) 10 Cal.5th 623, 673.) Accordingly, we review the trial court's ruling denying a mistrial for abuse of discretion. (People v. Avila (2006) 38 Cal.4th 491, 573; People v. Bolden (2002) 29 Cal.4th 515, 555.)
Calloway contends Benally's three statements referencing his assault on her were incurably prejudicial. However, the Supreme Court has repeatedly held that any prejudice arising from brief and ambiguous references to a defendant's past criminality can be cured by an appropriate admonition to the jury. For example, in People v. Collins, supra, 49 Cal.4th at pages 196 to 197, a witness testified the defendant "had been trying to call her 'ever since he was arrested'" and had called her from "'Susanville before he got out.'" The trial court denied the defendant's motion for a mistrial but offered to strike the improper portion of the testimony and give the jury a limiting instruction. Defense counsel declined the offer out of fear of highlighting the testimony further. The court affirmed the denial of the motion for mistrial, explaining, "[The witness's] remarks regarding defendant's phone calls were brief and ambiguous. The court did not abuse its discretion in concluding that any prejudicial effect could [be] cured by an admonition." (Id. at p. 199; see People v. Avila, supra, 38 Cal.4th at pp. 572-574 [any prejudice arising from witness's statement that defendant had "barely got[ten] out of prison" at the time of the offense was cured by admonition "to disregard that testimony and treat it as though you had never heard it" and "not discuss or consider it" during deliberations]; People v. Valdez (2004) 32 Cal.4th 73, 128 [trial court did not abuse discretion in denying mistrial motion where witness made a "brief and isolated" statement that he had interviewed defendant in jail]; People v. Franklin (2016) 248 Cal.App.4th 938, 956 ["none of the three vague and fleeting references to appellant's criminal history resulted in incurable prejudice"].)
Calloway attempts to distinguish the cases finding an admonition cured any prejudice, arguing that Benally's statements were "not brief, isolated, or ambiguous." Calloway contends Benally's statements that Calloway hit her, the incident was traumatic, and she called the police were incurable because they suggested Calloway had previously engaged in the same conduct-assault-for which he was currently charged. However, Benally provided no context for her account, and there was no basis for a jury to infer that any prior assault on Benally was similar to the unprovoked, violent assault in this case. Further, Benally's testimony about being traumatized was ambiguous. In particular, Benally's statement that "it" was traumatic, when explaining why she could not recall specific details regarding Calloway's appearance in 2019, did not clearly refer to the assault, as opposed to something else that affected her memory.
Finally, the trial court struck Benally's statements and instructed the jury not to consider them for any purpose. The trial court also instructed the jury pursuant to CALCRIM No. 222 that if it "ordered testimony stricken from the record you must disregard it and must not consider that testimony for any purpose." The trial court therefore did not abuse its discretion in concluding, under the circumstances of this case, that the instructions were sufficient to cure any prejudice. (See People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 292 ["Here, the trial court struck [the witness's] testimony and properly admonished the jury. Although Soliz asserts the admonitions were inadequate, we see no basis for the assertion and presume, as always, that the jury followed the court's instructions."]; People v. Yeoman (2003) 31 Cal.4th 93, 139 ["the presumption that jurors understand and follow instructions [is] '[t]he crucial assumption underlying our constitutional system of trial by jury'"].)
2. The Trial Court Erred in Finding Calloway's Prior Conviction Constituted a Violent or Serious Felony Under California Law
Calloway argues, the People concede, and we agree substantial evidence does not support the trial court's finding the 2010 Louisiana conviction constituted a serious or violent felony because the evidence did not support a finding of Calloway's intent to permanently deprive the victim of property. A prior conviction from another jurisdiction constitutes a strike under the three strikes law if the offense includes all of the elements of a violent or serious felony as described in sections 667.5, subdivision (c), or 1192.7, subdivision (c). (§§ 667, subd. (d)(2), 1170.12, subd. (b)(2).) Thus, to trigger the sentencing provisions of the three strikes law, the out-of-state conviction "must involve conduct that would qualify as a serious felony in California." (People v. Avery (2002) 27 Cal.4th 49, 53.) "To make this determination, the court may consider the entire record of the prior conviction as well as the elements of the crime." (Ibid.) If the record does not sufficiently reveal the facts of the prior offense, "a court must presume the conviction was for the least serious form of the offense." (People v. Miles (2008) 43 Cal.4th 1074, 1083; see People v. Trujillo (2006) 40 Cal.4th 165, 180 ["in determining the nature of a prior conviction, the court may look to the entire record of conviction, 'but no further'"].) We examine the record in the light most favorable to the judgment to ascertain whether the trier of fact's finding on the sentence is supported by substantial evidence. (Miles, at p. 1083; accord, People v. Delgado (2008) 43 Cal.4th 1059, 1067.)
Armed robbery under California law is a serious or violent felony within the meaning of the three strikes law. (§§ 667.5, subd. (c)(9), 1192.7, subd. (c)(19).) Under section 211, "[r]obbery is the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." Further, the defendant must "'intend to deprive the victim of the property permanently.'" (People v. Corpening (2016) 2 Cal.5th 307, 314, fn. 3; accord, People v. Huggins (2006) 38 Cal.4th 175, 214.)
In making its determination that Calloway's 2010 armed robbery conviction in Louisiana qualified as a strike, the trial court relied on two Louisiana Court of Appeal cases that held the intent to permanently deprive the victim of property was an element of armed robbery in Louisiana. (See State v. Alfred (La. Ct.App. 1987) 510 So.2d 93, 95 ["An essential element of the crime of theft is a specific intent to permanently deprive the victim of his property. Since armed robbery is a species of theft, the state must show that the defendant had the intent necessary for the offense of theft."]; State v. Eason (La. Ct.App. 1984) 460 So.2d 1139, 1145 [same].) However, both of those cases applied an earlier version of the Louisiana statute, which was amended in 1983 to remove "theft" as an element of robbery. (See Alfred, at p. 95, fn. 1 ["We note that under the new amendment a theft, i.e., taking of the property of another with intent to deprive permanently, is no longer required. A mere 'taking' will suffice."]; see also State v. Smith (La. 2009) 23 So.3d 291, 297 fn. 2 ["Before the 1983 amendment of R.S. 14:64, armed robbery was a specific intent crime because it required proof of a theft from the victim, i.e., an intent to deprive the victim permanently of his or her personal possessions. [Citation.] However, the 1983 amendment of R.S. 14:64 substituted 'taking' for 'theft' and armed robbery thereby became a general intent crime."].)
We remand to permit the People to present evidence at a new trial establishing that the Louisiana armed robbery conviction is a serious or violent felony within the meaning of the three strikes law. (See People v. Barragan (2004) 32 Cal.4th 236, 239 [retrial of strike allegation permissible when trier of fact found the allegation to be true and appellate court reversed finding for insufficient evidence].)
3. Calloway Was Not Properly Convicted on Both Counts 1 and 2
Calloway contends, the People concede, and we agree Calloway could not be convicted of both assault with a deadly weapon and assault with force likely to cause great bodily injury arising from the same course of conduct. As the Supreme Court recently held, "assault with a deadly weapon (§ 245, subd. (a)(1)) and force likely assault (id., subd. (a)(4)) are 'different statements of the same offense' (§ 954)." (Aguayo, supra, 13 Cal.5th at p. 979.) "As such, defendant may not be convicted of both based on the same act or course of conduct." (Id. at p. 993.)
It is undisputed the convictions for counts 1 and 2 were based on the same course of conduct. Although the court declined to sentence Calloway on the conviction for assault with a deadly weapon, it improperly allowed the conviction to stand. On remand, the court must either strike one of the assault convictions or consolidate them. (See Aguayo, supra, 13 Cal.5th at p. 996 ["'we express no opinion on whether striking the larceny conviction or the embezzlement conviction or consolidating the two convictions is the proper remedy'"].)
DISPOSITION
The matter is remanded to the trial court with direction to strike one of the assault convictions or consolidate them. The true finding as to the allegation that Calloway's 2010 Louisiana armed robbery conviction is a serious or violent felony within the meaning of the three strikes law is reversed. In all other respects the judgment of conviction is affirmed, but the sentence is vacated.
We concur: SEGAL, Acting P.J., MARTINEZ, J.