Opinion
F080433
01-14-2022
THE PEOPLE, Plaintiff and Respondent, v. JOE ANGEL DELACRUZ, Defendant and Appellant.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County No. F17905358. Alvin M. Harrell III, Judge.
Thomas Owen, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Kimberley A. Donohue, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
While outside an apartment building, defendant Joe Angel Delacruz shot a man three times with a semiautomatic firearm in the early hours of September 12, 2017. Defendant was charged and convicted by jury of assault with a deadly weapon (Pen. Code, § 245, subd. (b)) and being in unlawful possession of a firearm (§ 29800, subd. (a)(1)). The jury also found true special allegations that defendant inflicted great bodily injury (GBI) on his victim (§ 12022.7, subd. (a)) and that he personally discharged a firearm in the commission of a felony (§ 12022.5, subd. (a)). Defendant admitted a prior juvenile adjudication for violation of section 246 (shooting at an inhabited dwelling/building), which constitutes a prior strike within the meaning of the "Three Strikes law" (§§ 667, subds. (b)-(i), (d)(3), 1170.12, subds. (a)-(d)), and he admitted a conviction in 2015 for violation of Vehicle Code section 2800.2, subdivision (a) (evading a police officer while driving with wanton disregard for safety of persons or property), for which he served a prior prison term within the meaning of section 667.5, former subdivision (b). The jury deadlocked on the charge of premeditated attempted murder, a mistrial was declared as to that count, and it was ultimately dismissed by the prosecutor.
All further statutory references are to the Penal Code unless indicated otherwise.
Former subdivision (b) of section 667.5, which was operative at the time of sentencing in this case, provided for a one-year prison term enhancement for each prior separate prison term served. In 2019, section 667.5, subdivision (b), was amended to impose a prior separate prison term only for those offenses that were a "sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code .…" (Senate Bill No. 136 (2019-2020 Reg. Sess.) ch. 590, § 1, pp. 1-4 (Senate Bill No. 136).) This amendment became effective on January 1, 2020, while this case was pending on appeal.
At sentencing in November 2019, the court imposed an aggregate term of 26 years as follows: the middle term of six years, doubled to 12 years for the prior strike conviction, on count 2 (§§ 245, subd. (b), 667, subd. (e)(1)); 10 years for the firearm enhancement (§ 12022.5, subd. (a)); three years for the GBI enhancement (§ 12022.7, subd. (a)); and one year for the prison prior (§ 667.5, former subd. (b)). The court imposed a concurrent two-year term, doubled to four years for the prior strike conviction, on count 3 (§§ 18, subd. (a), 29800, subd. (a)(1), 667, subd. (e)(1)).
On appeal, defendant contends the trial court erroneously admitted evidence about defendant's conduct upon arrest, including body camera footage from one of the police officers present, which defendant claims was irrelevant and unduly prejudicial under Evidence Code section 352. Defendant also argues the trial court abused its discretion in denying his motion under People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike his prior strike conviction. Finally, defendant contends his prior prison term enhancement under section 667.5, former subdivision (b), must be stricken pursuant to Senate Bill No. 136.
The People dispute the trial court abused its discretion in admitting evidence of defendant's conduct upon arrest and in refusing to grant defendant's Romero motion. The People concede the prior prison term enhancement imposed under section 667.5, former subdivision (b), must be stricken under Senate Bill No. 136. The People also note the trial court concluded that section 654 applied to count 3, but incorrectly failed to stay the concurrent term imposed on count 3, which resulted in an unauthorized sentence.
For the reasons set forth below, we affirm the convictions but remand for resentencing. We conclude the trial court did not abuse its discretion in admitting evidence about defendant's conduct and statements when he was taken into custody, and any assumed error in this regard was harmless. Further, the trial court did not abuse its discretion by denying defendant's Romero motion. We agree with the parties that the prior prison term enhancement under section 667.5, former subdivision (b), must be stricken pursuant to Senate Bill No. 136. And, although defendant contends resentencing is unnecessary to strike the prior prison term, we agree with the People that resentencing is appropriate in this case because the trial court did not impose the maximum sentence. Resentencing will also allow the trial court an opportunity to consider the exercise of its discretion anew in light of our conclusion there is no substantial evidence to support the trial court's finding that section 654 applies to count 3 (despite that the concurrent sentence imposed on count 3 was not stayed).
BACKGROUND
I. Trial
Defendant shot a man three times in front of an apartment building in the early hours of September 12, 2017. Defendant was charged with premediated attempted murder, assault with a deadly weapon, and being a felon in unlawful possession of a firearm. There were also enhancement allegations that defendant caused GBI to the victim, personally discharged a firearm in the commission of a felony, had suffered a prior strike conviction within the meaning of the Three Strikes law and had served a prior prison term within the meaning of section 667.5, former subdivision (b). Defendant was tried before a jury in October 2019.
The first amended information also charged defendant for being a felon in possession of ammunition (count 4) in violation of section 30305, subdivision (a)(1), but this count was dismissed by the prosecution just before the trial.
A. Prosecution Evidence
On September 12, 2017, defendant shot Francis while Francis was standing outside his apartment smoking. Francis had been talking on the phone while smoking outside for about five or ten minutes. Some girl walked up to him and asked him for a cigarette and walked away. Then defendant, who Francis recognized as a man who fathered a child with the former girlfriend (Monique) of Francis's brother Brian, asked for Brian; Francis denied having a brother by that name. Defendant asked if Francis remembered defendant and then asked if Francis wanted to die. Francis told defendant he did not "give a fuck," and defendant pulled out a gun and shot at Francis.
Francis was shot in the leg, and when he turned around and started running, defendant fired again hitting Francis in the back and again in his leg. He ran into the house slamming the door behind him, woke up his mother, 911 was called and Francis waited on the steps of the home until an ambulance came. Francis denied ever having a weapon, and he did not know what happened to defendant after he ran inside. Francis detailed how people came to the house after the shooting on behalf of defendant and tried to convince and intimidate Francis not to come to court to testify.
Francis indicated Monique had come over to the house the day before all this happened to see the son she shared with Brian. Francis was frustrated she was coming to see the baby when she was still "messing around" with defendant-Francis did not like his brother "getting played." Francis knew that defendant's family lived right next door to Francis, although he had never really run into defendant before. He had seen defendant a couple of times before the shooting, so he was familiar with defendant. He never liked defendant.
Francis's brother Brian explained he had been in a relationship with Monique for about a year or two; Brian and Monique have a child together; defendant was one of Monique's ex-boyfriends with whom she also has a child. Brian had a beef with defendant-they had words in the past, including within a couple months of the shooting, and defendant had threatened him. The disagreement with defendant was because of Monique, but Brian did not believe Monique had set the two men up to argue. Brian was not dating Monique when Francis was shot. Monique came over after the shooting occurred so that she could see their son-she had not come by right before the shooting. She had been there about three days before the shooting to drop off their son.
According to Brian, the night Francis was shot, the other members of the household were inside. They heard about four or five gunshots and Francis came inside bleeding; then the police came. Francis said that defendant shot him three times. It took about 30 minutes for the ambulance to arrive. When Brian saw that Francis had been shot, he ran outside to see if defendant was still there. Brian never saw Francis with a knife-he has never seen his brother carry a knife.
Francis's mother Jennifer testified Francis had lived with her his whole life; Brian also lived with her his whole life, except for one year. Her grandson, youngest son, and Alyssa R. also lived with her. Jennifer was asleep at the time of the shooting; she heard Francis say he had been shot by "'Monique's baby's dad, '" so she called 911. The 911 call was played for the jury. Jennifer did not hear a door slam, and she did not hear any of the gunshots-she's a heavy sleeper. She never saw Francis outside with a knife, never saw him threaten anyone with a knife. Officers searched her home while she was at the hospital with Francis, but she had not given them permission to search for weapons.
After the shooting, several people came to Jennifer's home to convince or threaten her not to come to court. All of her windows were broken in her apartment, and people tried to get the family to come outside. It was her impression these people came to her house on behalf of defendant.
Several officers were dispatched to the scene, and they testified about their role in apprehending defendant and aiding Francis while collecting statements and evidence. Officer Evers and his partner were dispatched to the scene, and on their way to the apartment they received information from the California Highway Patrol (CHP) air unit that suspects were seen fleeing on foot. Evers and his partner intercepted two suspects and attempted to detain them both. One of them stopped immediately-a man named Mario. Two other officers arrived and took him into custody. Evers walked in the direction he saw the second subject flee, and he began canvasing the area. He saw the second subject run back through a fence line; there was a hole in the fence. Evers saw a semiautomatic black handgun lying on the ground inside the fence. He stood by the firearm near the fence line until he was relieved by another officer. The other responding officers ultimately apprehended the second suspect.
CHP Officer Kim testified he was in the air unit on the night of the shooting- there was a camera onboard the aircraft that had nighttime vision and recorded the events. The camera video was played for the jury. Originally, Kim did not see either of the suspects he was tracking throw anything. But, after reviewing the video, he was able to see an object being tossed by the suspects at approximately 6:42 of the video. The intercept of the suspects occurred within two minutes.
Officer Fink was dispatched around 1:30 a.m. He and Officer Stagis parked their cars near the gate of a house where other officers were making verbal commands for defendant and another suspect to stop and surrender. Stagis testified officers had been advised by CHP aircraft there were suspects running from the shooting scene, so they responded near where the suspects were running. When other officers stopped defendant, defendant was extremely uncooperative. Fink had defendant at gunpoint, and Stagis was able to place handcuffs on him. Stagis conducted a safety patdown of defendant, which revealed a plastic bag of methamphetamine. Stagis also noticed an injury on defendant's right hand, near his right thumb. He did not ask defendant how he got the injury, and defendant did not explain. Defendant said he was coming from his girlfriend's house, or "baby's mama's" house, and the police were harassing him because he was just on his way home. They placed defendant into a patrol car.
At 2:54 a.m., a crime scene technician arrived at the location where defendant was being detained. The technician photographed and collected the firearm that Evers had discovered. The technician also had interactions with both subjects. Mario was calm; defendant was belligerent. The technician took the best photograph of defendant possible-he was not looking at the camera and was doing everything possible to make the situation unnecessarily difficult. The technician also used a gunshot residue (GSR) field kit on both the suspects' hands, and he collected control swabs from the blood on defendant's right hand.
The .22-caliber semiautomatic firearm that the technician collected and photographed had a double-feed issue, which occurs when the slide picks up two rounds from the magazine and both rounds are fed into the chamber at the same time. The double-feed essentially jammed the gun. The technician removed 12 cartridges from the firearm-10 from the magazine and two from the slide because of the double-feed. The technician confirmed that someone can cut their hands or fingers on the slide. The slide itself was damaged and the metal had been deformed like it had hit a hard surface. There was also blood on the gun. The technician dusted the gun for fingerprints, but there were none, and he swabbed the gun for DNA.
After that, the technician went to the location of the shooting to collect evidence. He photographed the scene, and collected bullet casings in a location relative to where the shooter might have been standing when he discharged the gun. He never saw a knife of any kind. He photographed the victim at the hospital and collected the victim's clothing items there, including shorts with a bullet hole through them.
Fink testified that defendant was uncooperative, arguing, and swearing at all of the personnel; defendant was eventually taken into custody and placed into a patrol car. When the crime scene technician arrived to collect evidence, defendant was taken out of the car, but he began causing problems, and Fink activated his body camera. Fink held defendant against the patrol car because he was pulling away while they were trying to swab his hands for GSR. The body camera recording was played for the jury.
Officer Landis and his partner were dispatched to the shooting location. Landis found a gunshot victim on the stairs with multiple gunshot wounds; other family members were outside the home, too. Landis talked to the victim's brother Brian, who identified defendant as the shooter. Landis then canvased the area for surveillance cameras, but found none. He never saw a bloody knife at the scene.
Officer Price was the first to respond to the scene of shooting. She observed many subjects standing outside the apartment, including the victim. He had three gunshot wounds, and he was not able to speak much. She talked to Jennifer, who reported hearing two shots coming from outside the apartment complex. Jennifer said her son walked inside and told her he had been shot. She told Price that Francis had reported defendant was the shooter. Francis told Price that he was sitting outside when a male walked up with a female. Defendant asked Francis if he remembered defendant and then asked Francis if he knew Brian. Then, defendant asked Francis if he was willing to die for Brian, and that was when the victim saw defendant pull a firearm out of his waistband.
Officer Price's last name changed prior to trial. For ease of reference, she is referred to only as Officer Price.
Two casings were located outside the complex. Alyssa, who was also living at the apartment, told Price she heard Francis walk outside the complex and then about two minutes later she heard four consecutive shots. Francis walked back into the apartment to Jennifer's bedroom. Price never saw anyone with a knife and was never told by anyone to look for a knife. Price's body camera video was played for the jury.
Officer Ramos interviewed Francis at the hospital, which was recorded. Francis indicated a female was present with defendant at the time of the shooting, but he never mentioned another male being present. Francis was also able to identify defendant during a photo lineup.
Detective McFarland responded to the shooting-he went to the apartment where the victim was shot and the location where defendant was taken into custody. Two casings were recovered at the apartment, and a gun was recovered where defendant was arrested. A cellphone was also recovered from defendant. DNA swabs were sent to the California Department of Justice for testing, and a forensic download of the cellphone was undertaken. The GSR samples were never sent to the lab because the DNA from the gun matched defendant, and Francis identified defendant as the shooter.
Defendant was interviewed after the shooting around 4:00 a.m.-his speech was slurred and his eyes were red. The interview was recorded and it was played for the jury. Defendant never said he was defending himself in the interaction with Francis, nor did he mention Francis pulling a knife out or that defendant tried to grab the knife. Police never had any reason to believe that Francis was the aggressor in the incident.
A DNA sample was also collected from defendant via buccal swabs. A criminalist testified the DNA sample from the gun was tested, and defendant could not be eliminated as the major contributor. Another criminalist from the forensic lab testified the two cartridges found at the shooting scene matched the firearm recovered where defendant was taken into custody.
Officer Alvarado testified about a search of a residence where defendant had indicated to his probation officer that he was living-neither defendant or the other resident were present. The search took place about two weeks before the shooting. There was mail in that apartment addressed to defendant. In one of the bedrooms, Alvarado discovered a clear plastic baggie that contained .22-caliber ammunition.
B. Defense
Defendant testified in his own defense. He was living at his cousin's house on the date of the shooting. He had been staying there for a couple of months. He had never had prior encounters with anyone in Francis's family. On the night of the shooting, he was at his cousin's house and he called Mario to come over-he wanted to get some methamphetamine. Mario came over with his girlfriend, whom defendant does not really know. Mario and his girlfriend were arguing when defendant approached Mario's car. While he was talking with Mario, Mario told defendant that someone was coming up behind him. Defendant turned around and this individual-Francis-asked him if he was Joe, whether he was Monique's "baby's dad," and accused defendant of seeing his brother's girlfriend behind his brother's back. Defendant told him he did not know his brother and did not care about Monique.
Mario started getting out of the car, and his girlfriend left. Francis punched defendant in the head; when defendant tried to get up, Mario said Francis had a knife. Francis swung the knife at defendant, and defendant tried to grab it to keep from being stabbed. The knife made contact with defendant's thumb and pointer finger. Defendant panicked and grabbed his gun, which he had been keeping at his hip; as he was running away, defendant fired two shots. He did not want to shoot Francis, but he was in fear for his life. He denied he stopped firing because the gun malfunctioned; rather, he stopped firing because Francis stopped coming at him. After defendant fired the gun, he and Mario ran. Law enforcement caught up with them, and defendant realized they were officers when the officers hit their lights. At that point, defendant threw the gun down because he did not want to be seen with a gun in his hand and get shot. Then he was taken into custody during which he became physical with officers because he was frustrated he was being detained.
Defendant was placed in a patrol car for about two hours, but he did not recall where they went from there. He did not remember his interrogation, and he saw it for the first time on the video that was played for the jury. He thinks he behaved that way because he was handcuffed to the wall in an uncomfortable position. No officers asked him about his version of events, and they never asked about the injury to his hand. He never threatened Francis or his family, nor did he ever send anyone to threaten them. When he was at his cousin's that night, he never intended to run into anyone.
The probation search occurred at the apartment of his ex-girlfriend, who is also the mother of some of his kids, so he talks to her. There were letters at her house addressed to him.
II. Verdict and Sentencing
The jury deadlocked on count 1 of premediated attempted murder, a mistrial was declared as to that count, and it was later dismissed. The jury found defendant guilty of assault with a deadly weapon under section 245, subdivision (b) (count 2) and found true the special allegations that defendant inflicted GBI under section 12022.7, subdivision (a), and personally discharged a firearm under section 12022.5, subdivision (a). The jury also found defendant guilty of being a felon in unlawful possession of a firearm under section 29800, subdivision (a)(1) (count 3). Defendant admitted a juvenile adjudication for violation of section 246 (shooting at an inhabited dwelling/building) on October 26, 2009, and he admitted a June 18, 2015, conviction for a felony violation of Vehicle Code section 2800.2, subdivision (a), for which he served a prison term.
At sentencing, the court imposed an aggregate term of 26 years. Defendant now appeals.
DISCUSSION
I. Evidence of Defendant's Conduct Immediately After the Shooting
Defendant claims all the video and testimonial evidence relating to his conduct when he was taken into custody was irrelevant and highly prejudicial, and the trial court abused its discretion in admitting any of it. Defendant argues the admission of this evidence also deprived him of his right to a fair trial under the due process clause of the Fourteenth Amendment.
In their respondent's brief, the People note it is unclear which evidence defendant claims should not have been admitted as the bench conference defendant cites does not identify what specific video evidence the parties and the court are discussing. The People assert the record suggests that defendant's argument challenges the admission of People's exhibit No. 66, video from a body camera worn by Officer Fink. That video shows defendant after he had been taken into custody while officers and an investigation technician were collecting evidence from defendant.
As it pertains to that video, the People dispute there was any abuse of discretion in admitting it, but even if there were, the People assert it did not result in a fundamentally unfair trial or prejudicial harm under state law. The People maintain defendant's demeanor and statements shortly after the shooting as depicted in the video show his state of mind and were relevant to impeach his claim of self-defense.
In his reply brief, defendant clarifies the irrelevant and prejudicial evidence included all police officer testimony, video footage, and related transcripts that depicted or related to defendant's take down and arrest and defendant's reaction thereto. Defendant maintains the jury should have isolated its view to the events during and prior to the shooting-how defendant reacted to being taken into custody was not relevant. That evidence served only to inflame the jury and it infused the trial with unfairness.
A. Background
At a break during trial on October 1, 2019, defense counsel raised the issue of a police body camera video that showed officers "putting [defendant] on top of the [patrol] car, and putting [defendant] in handcuffs." Defense counsel objected to admission of the video on the ground that its probative value was outweighed by its prejudicial nature under Evidence Code section 352.
The prosecutor argued the video was relevant because it showed defendant, "basically, seconds after he tosses the gun into the backyard of this house … [¶]… [¶] [and] also depicts the defendant's demeanor." The prosecutor indicated there were 15 minutes between the shooting and the time officers took defendant into custody. The prosecutor also argued defendant's conduct upon arrest was relevant because defendant never mentioned to the officers he acted in self-defense.
Defense counsel argued the video was not taken seconds after defendant tossed the gun and was arrested. Counsel argued that while the officers could testify as to the arrest, defendant's demeanor upon arrest as reflected in the video was not relevant-his demeanor during his detention and arrest had no relation to his demeanor at the time of the shooting. Defense counsel also asserted the video did not reflect defendant's interrogation or attempts of officers to speak with him about the events, which occurred later at the police station. Counsel further argued the video was inflammatory, and the interactions between defendant and law enforcement were not relevant to the charges. According to defense counsel, the video cast defendant in an unfair and prejudicial light and was not relevant to the issues.
The trial court viewed the video and concluded there was nothing highly prejudicial reflected in the video that outweighed its probative value. The court noted it would have to accept the prosecutor's representation the video took place approximately 15 minutes after the shooting. In comparing the alleged incident of the shooting against the behavior exhibited approximately 15 minutes later, the court concluded the video was highly probative.
Later that afternoon, Officer Fink took the stand. Fink testified that when he first made contact with defendant, defendant was slow to cooperate with police; other officers were giving defendant commands that defendant refused to follow. Eventually defendant complied and got on the ground and was taken into custody. Defendant was placed in a patrol car that remained at the scene until a crime scene technician arrived. Defendant was taken out of the patrol car when the crime scene technician arrived to swab defendant for GSR and take his photograph. Fink activated his body camera when defendant was taken out of the patrol car, but this was well after officers had physical custody of defendant. According to Fink, defendant began causing problems at that point, and officers pressed him up against a patrol car so that the GSR swab could be obtained. Fink testified he never heard defendant mention being stabbed or that he acted in self-defense during his arrest and detention.
The crime scene technician who swabbed defendant's hands for GSR and took his photograph testified he arrived at 2:54 a.m. at the location where defendant was taken into custody and detained. Both suspects were in custody at that time. The technician took the best photograph possible of defendant, but defendant would not look at the camera and, according to the technician, defendant was doing everything he could to make the situation unnecessarily difficult.
B. Analysis
A court's ruling on the admissibility of evidence is reviewed for an abuse of discretion. (People v. McCurdy (2014) 59 Cal.4th 1063, 1095.) "Specifically, we will not disturb a trial court's admissibility ruling '"except on a showing the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice." [Citation.]'" (People v. Morales (2020) 10 Cal.5th 76, 97.)
In general, all relevant evidence is admissible. (Evid. Code, § 351.) "'Relevant evidence' means evidence, including evidence relevant to the credibility of a witness …, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) "Relevance is a low threshold." (People v. Battle (2021) 11 Cal.5th 749, 799.) But even relevant evidence is inadmissible if its probative value is substantially outweighed by the probability that its admission will "necessitate undue consumption of time or … create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." (Evid. Code, § 352; accord, People v. Battle, supra, at p. 799.) Like relevance rulings, a trial court's admissibility ruling under Evidence Code section 352 is reviewed for abuse of discretion. (People v. Battle, supra, at p. 799.) A court's ruling under this standard will not be disturbed unless the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rogers (2013) 57 Cal.4th 296, 326.)
Defendant maintains none of the witnesses' testimony or video evidence relating to or depicting defendant's conduct when he was taken into custody was relevant to the offenses charged, and even if it were relevant in some tangential way, the probative value of that evidence was significantly outweighed by its prejudicial nature. Defendant argues that evidence did nothing more than portray him as a "belligerent, aggressive, uncooperative, violent thug."
As an initial matter, considered in context, defendant's trial counsel's objection to evidence of defendant being taken into custody focused solely on Officer Fink's body camera video. To the extent defendant contends even the officers' and crime scene technician's testimony about defendant fleeing, resisting arrest, and being uncooperative with evidence collection was irrelevant and/or unduly prejudicial, that claim is forfeited.Defendant cites no such objection to that evidence, and our review of the record reveals no such objection at trial to that evidence. However, even if there had been an objection on the ground of relevance and/or as unduly prejudicial, such objections would not have been meritorious.
The testifying officers who responded to the location where defendant was seen running right after the shooting included Officers Fink, Stagis and Evers. Evers testified about finding the gun, but he indicated he had no contact with defendant when he was taken into custody. Stagis testified he had no body camera that night, and there was no objection to his description of defendant's uncooperative behavior when he was taken into custody. Defense counsel's objection to Fink's body camera video was overruled, but no objection was interposed as to Fink's testimony about defendant's demeanor and behavior while they were trying to collect GSR from defendant's hands and take his photograph at the scene. Finally, there was no objection to the crime scene technician's testimony about defendant's uncooperative behavior during evidence collection. The only other video admitted relating to defendant's flight and detention immediately after the shooting was the CHP aircraft video introduced through Officer Kim who was onboard the aircraft. Defense counsel interposed no objection to the admission of this video. When objecting to Fink's body camera video, defense counsel specifically argued it was the visual aspect of Fink's recording and defendant's statements that were prejudicial-defense counsel argued the prosecutor "can put the arresting officer on there and ask appropriate questions, but I don't think it's appropriate to introduce the physical take-down of my client and/or statements that he makes in that video."
The fact defendant fled the scene of the shooting, dumped the gun along the way, and then resisted being taken into custody were all details relevant to whether defendant demonstrated a consciousness of guilt and to assess the truth of his self-defense claim. (See People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1027 [evidence that the defendant attempted to avoid arrest by jumping fences before being apprehended was properly admitted as tending to show his consciousness of guilt for the capital crimes]; People v. Garcia (2008) 168 Cal.App.4th 261, 283 [resistance to arrest, like flight, is admissible as evidence of the defendant's consciousness of guilt].) The same is true of the crime scene technician's testimony that defendant was uncooperative in allowing the technician to take his picture and swab his hands for GSR at the scene-this was relevant to assessing consciousness of guilt. (See People v. Butler (1970) 12 Cal.App.3d 189, 193 [any conduct of the defendant subsequent to the commission of crime tending to show consciousness of guilt is relevant and admissible]; see also generally People v. Roberts (1992) 2 Cal.4th 271, 310-311 [refusal to submit to lawful order for blood test could be considered as consciousness of guilt].) The testimony of these witnesses was not lengthy in this regard, nor was any of it particularly detailed. We reject defendant's contention the evidence of his flight, resistance to being taken into custody, and evidence collection at the scene served no purpose other than to prejudice him.
At a somewhat lengthy bench conference, defense counsel did object to the admission of Officer Fink's body camera video as irrelevant and unduly prejudicial. Despite that the video was not taken 15 minutes after the shooting as the prosecutor indicated to the trial court, the video nonetheless supports the credibility of Fink and the crime scene technician's testimony that defendant was uncooperative during evidence collection, which in turn supported consciousness of guilt. (Evid. Code, § 210 [relevant evidence includes evidence relevant to the credibility of a witness].)
Although the prosecutor asserted this video was taken 15 minutes after the shooting, subsequent trial testimony indicated the video was most likely captured about an hour and one-half after the shooting. Officer Fink's statements to defendant captured by the video references the crime scene technician's attempt to photograph defendant and take a GSR swab. The crime scene technician testified he did not arrive where defendant was being detained until 2:54 a.m. Based on Fink testimony and statements in the video, the camera was not activated until the technician arrived-after 2:54 a.m.-more than an hour after the shooting.
During the video, defendant also denied that he had done anything wrong and that he had just been walking down the street when he was taken into custody. That was false. Defendant conceded at trial that just before he was taken into custody, he had a gun, which, as a felon, he did not lawfully possess; and he had used that gun just minutes before to shoot someone. Thus, he had not been simply walking down the street when he was confronted by police, he was running from a location where he had just shot someone; and he had been doing something wrong because, at a minimum, he had been illegally carrying a firearm that he had dumped. (People v. Williams (2000) 79 Cal.App.4th 1157, 1168 [deliberately false material statements by a defendant have long been considered cogent evidence of a consciousness of guilt because they suggest there is no honest explanation for the incriminating circumstances].) Defendant's false statements suggested a consciousness of guilt with respect to all of the charges- attempted murder, assault with a deadly weapon, and being a felon in illegal possession of a firearm. The jury was instructed pursuant to CALCRIM No. 362 that defendant's false statements before trial could be considered as consciousness of guilt evidence.
The video was also relevant to assessing defendant's self-defense claim-on the video he said he had been doing nothing but walking down the street. He never asserted he had just been randomly attacked by someone with a knife and defended himself with a gun, which was his trial testimony. The video was relevant.
The trial court also did not abuse its discretion in determining the video was not unduly prejudicial pursuant to Evidence Code section 352. The probative value of the video, discussed above, was not substantially outweighed by its prejudicial effect. The video showed defendant arguing with officers and using coarse language and, while the video casts defendant in a negative light, it was not the type of evidence that would prompt an emotional reaction against defendant without regard to its relevance to the material issues. (People v. Kipp (2001) 26 Cal.4th 1100, 1121 [defining prejudicial for purposes of Evid. Code, § 352].)
The video is also unlike the gang evidence admitted in People v. Albarran (2007) 149 Cal.App.4th 214 (Albarran), which defendant cites. Gang evidence is of a nature that even when it is relevant, trial courts must still carefully scrutinize the risk the jury will improperly infer the defendant has a criminal disposition. (People v. Mendez (2019) 7 Cal.5th 680, 691.) Arguing and being uncooperative with a police officer is not equivalent to gang evidence.
Moreover, in Albarran, the gang evidence admitted had little to no connection to the underlying charges. It included evidence of threats against police officers, descriptions of criminal activities of other gang members, and reference to the Mexican Mafia-all having little to no bearing on the material issues. (Albarran, supra, 149 Cal.App.4th. at p. 228.) The potential prejudicial effect of irrelevant gang evidence, especially that involving threats against police officers and references to the Mexican Mafia, which are particularly inflammatory types of gang evidence, is not equivalent to relevant evidence of a short argument with police officers-even one that included argumentative and rough language and depicted or implied some limited physical resistance by defendant.
Even assuming the trial court erred in admitting the video, it did not render the trial fundamentally unfair or cause prejudicial harm to defendant. Ordinarily, the erroneous admission of evidence is reviewed for prejudice under the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836, which requires reversal only if the defense shows it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. (People v. Wilkins (2013) 56 Cal.4th 333, 351.) The admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair. (People v. Partida (2005) 37 Cal.4th 428, 439; see People v. Steskal (2021) 11 Cal.5th 332, 357-358.) "Absent fundamental unfairness, state law error in admitting evidence is subject to the traditional Watson test .…" (People v. Partida, supra, at p. 439.)
The video was not the only evidence, or even the strongest evidence, suggesting defendant's guilt. Defendant admitted at trial he was carrying a firearm when he encountered Francis, that he shot Francis, he fled the scene, and then he dumped the gun right before he was confronted by police. The jury deadlocked on the issue of attempted murder, but the jury did not acquit defendant on that charge, as he asserts. As for the assault with a firearm, the jury obviously rejected defendant's claim of self-defense. The short video from Officer Fink's body camera did not preclude defendant from asserting his claim of self-defense, and it was not so inflammatory that it rendered the trial fundamentally unfair in any way.
The video confirmed what Officers Fink and Stagis and the crime scene technician testified to-that defendant was uncooperative when he was taken into custody and at the time of evidence collection, and that defendant never mentioned self-defense. Given the limited duration of the video and its relatively mild content, along with the other evidence of defendant's guilt, there is no reasonable probability the jury's verdict would have been more favorable in its absence.
II. Romero Motion
Defendant admitted his prior strike, which stemmed from a juvenile adjudication in 2009 for violation of section 246 (shooting at an inhabited dwelling/building). At sentencing, he made a motion under Romero to dismiss that prior strike. The trial court denied the motion. On appeal, defendant challenges the denial of his Romero motion on the merits.
Pursuant to Romero, "a trial court may strike or vacate an allegation or finding under the Three Strikes law that a defendant has previously been convicted of a serious and/or violent felony, on its own motion, 'in furtherance of justice' pursuant to … section 1385[, subdivision ](a)." (People v. Williams (1998) 17 Cal.4th 148, 158.)
In ruling on a Romero motion, the court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [Three Strikes law's] spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams, supra, 17 Cal.4th at p. 161.)
A court is not required to state its reasons for denying a Romero motion, but it must do so if it grants a Romero motion. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at p. 531; In re Large (2007) 41 Cal.4th 538, 550.) The trial court's denial of a Romero motion is reviewed for an abuse of discretion. (People v. Carmony (2004) 33 Cal.4th 367, 374.) There exists a "'strong presumption' [citation] that the trial judge properly exercised his [or her] discretion in refusing to strike a prior conviction allegation." (In re Large, supra, at p. 551.)
Defendant focuses on his background and emphasizes his prior strike stems from a decade-old juvenile adjudication in October 2009; he also notes the trial court's recognition of his "'horrible'" childhood that included his parents dying, separation from his siblings, and difficult or problematic foster care placements. Although defendant has had encounters with law enforcement beyond his juvenile offense, he argues his history is "not so bad as to make the imposition of a 26-year sentence to state prison … an appropriate sentence."
The People contend the record fully supports the trial court's denial of the motion and dispute that it constitutes an abuse of discretion. According to the People, the trial court properly considered the nature of the current offense and the prior strike offense. The trial court noted that "the Three Strikes Law was invented for situations just as this where you had that prior shooting in[to] an inhabited dwelling and then we have the present case and where another firearm is used, and we have an assault with a semiautomatic, an individual, and also possession of a firearm by someone who is not supposed to have a firearm." Moreover, the People highlight defendant's criminal record that involves other offenses such as domestic battery and a felony conviction for evading a police officer. Defendant has also violated the terms of his post release community supervision (PRCS), including committing the current offenses while on PRCS.
The prior strike added six years to defendant's aggregate 26-year sentence. On this record, we cannot conclude the trial court abused its discretion in declining to dismiss the prior strike. Although the prior strike in 2009 occurred eight years before this offense and was committed when defendant was a juvenile, both the prior and the current offenses involved a firearm, and in the intervening eight years defendant did not refrain from criminal activity. (People v. Williams, supra, 17 Cal.4th at p. 163.) He was arrested in 2015 for fleeing from a police officer, and he was not performing well on probation before the current offense in September 2017-he was admonished for testing positive for methamphetamine and marijuana use and for the use of nonprescribed Vicodin; he had also failed to maintain contact with the probation department. Even if reasonable minds could differ about whether to strike a prior conviction in this case, this would not establish an abuse of discretion. (People v. Carmony, supra, 33 Cal.4th at pp. 376-378.) In fact, only where the relevant factors manifestly support the striking of the prior strike and no reasonable mind could differ would the failure to do so constitute an abuse of discretion. (Id. at p. 378.) This is not such a case, and there is no basis to conclude the trial court abused its discretion.
On count 2, defendant was sentenced to the six-year middle term, which was doubled to 12 years for the prior strike. The remaining 14 years were imposed for enhancements: a three-year GBI enhancement under section 12022.7, subdivision (a); a 10-year firearm enhancement under section 12022.5, subdivision (a); and a one-year prior prison term enhancement under section 667.5, former subdivision (b). The court imposed a two-year term for count 3, which was doubled for the prior strike, but that term was ordered to run concurrent to count 2.
III. Section 654
Although not addressed by defendant in his opening brief, the People assert the sentence on count 3 is unauthorized because the trial court concluded section 654 applied, but failed to stay the sentence on count 3 it imposed. (See People v. Alford (2010) 180 Cal.App.4th 1463, 1472 [when a trial court determines that § 654 applies to a particular count, the trial court must impose sentence on that count and then stay the execution of that sentence].) In his reply brief, defendant agrees the sentence on count 3 should be modified to reflect the stay required under section 654.
In his sentencing brief, defendant argued count 3 should be stayed under section 654 because it involved the same indivisible conduct as count 2 (assault with a deadly weapon). At the sentencing hearing, defense counsel again noted counts 2 and 3 created a section 654 issue, and the court and the prosecutor agreed. Later in the hearing, the court "noted that we have a Penal Code Section 654 issue as to [counts 2 and 3], and the Court is not going to have consecutive sentences. So although the Court is going to sentence [defendant] for the crimes, he'll serve the time at the same time concurrently, instead of starting one sentence and waiting until it finishes and then adding on another sentence."
At the time of sentencing, section 654, subdivision (a), provided, "An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.…" The statute "expressly prohibits separate punishment for two crimes based on the same act, but has been interpreted to also preclude multiple punishment for two or more crimes occurring within the same course of conduct pursuant to a single intent." (People v. Vargas (2014) 59 Cal.4th 635, 642; accord, People v. Harrison (1989) 48 Cal.3d 321, 335.) Determining "[w]hether a defendant may be subjected to multiple punishment under section 654 requires a two-step inquiry .…" (People v. Corpening (2016) 2 Cal.5th 307, 311.) "We first consider if the different crimes were completed by a 'single physical act.' [Citation.] If so, the defendant may not be punished more than once for that act. Only if we conclude that the case involves more than a single act-i.e., a course of conduct-do we then consider whether that course of conduct reflects a single '"intent and objective"' or multiple intents and objectives." (Ibid.)
As amended by Assembly Bill No. 518 and effective January 1, 2022, section 654, subdivision (a), provides, "An act or omission that is punishable in different ways by different provisions of law may be punished under either of such provisions, but in no case shall the act or omission be punished under more than one provision. An acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."
It is well settled that a court acts in "'excess of [its] jurisdiction'" and imposes an "unauthorized" sentence when it erroneously stays or fails to stay execution of a sentence under section 654. (People v. Perez (1979) 23 Cal.3d 545, 549-550, fn. 3; People v. Price (1986) 184 Cal.App.3d 1405, 1411.) Appellate courts apply a substantial evidence standard of review when determining whether section 654 applies: "The determination of whether there was more than one objective is a factual determination, which will not be reversed on appeal unless unsupported by the evidence presented at trial." (People v. Saffle (1992) 4 Cal.App.4th 434, 438.)
At sentencing, the parties did not articulate why section 654 was applicable to count 3 (felon in possession of a firearm)-they simply asserted it was, and the court agreed. In doing so, the court made no factual findings and did not stay count 3 as is required upon application of section 654. (People v. Reed (2006) 38 Cal.4th 1224, 1227 [where § 654 prohibits multiple punishment, the trial court must stay execution of sentence on the convictions for which multiple punishment is prohibited].) On appeal, neither party addresses what evidence supports application of section 654-they simply assert the court's conclusion is correct and the concurrent prison term imposed on count 3 must be stayed. Yet, our review of the record reveals no substantial evidence to support a finding that the two crimes (assault with a deadly weapon (count 2) and felon in possession of a firearm (count 3)) were completed by a single physical act or that the course of conduct here involved only one objective or intent.
Whether illegal possession of a firearm constitutes a divisible transaction from the offense in which that person employs the weapon depends on the facts and circumstances of each individual case. (People v. Bradford (1976) 17 Cal.3d 8, 22 (Bradford).) Where the evidence shows a possession distinctly antecedent and separate from the primary offense, punishment on both crimes has been approved. (Ibid.) Where the evidence shows a possession only in conjunction with the primary offense, then punishment for the illegal possession of a firearm has been held to be improper where it is the lesser offense. (Ibid.) In Bradford, the defendant was stopped by an officer for speeding. (Id. at p. 13.) During the stop, the defendant wrested away the officer's revolver and fired five shots at the officer while the officer was pinned under a car. (Ibid.) Observing the defendant's possession of the officer's revolver was not antecedent and separate from his use of the revolver in assaulting the officer, the California Supreme Court held that punishment both for assault with a deadly weapon upon a peace officer and possession of a firearm by an ex-felon was prohibited by section 654. (Bradford, supra, at pp. 22-23.) As summarized subsequently in People v. Wynn (2010) 184 Cal.App.4th 1210, 1217, "[S]ection 654 applies where the defendant obtained the prohibited weapon during the assault in which he used the weapon."
On the other hand, multiple punishments are proper when the evidence shows the defendant possessed the firearm before the crime with an independent intent. In People v. Jones (2002) 103 Cal.App.4th 1139, 1145 (Jones), the defendant drove by a woman's home while illegally possessing a firearm and then shot at the woman's home. (Id. at pp. 1141-1142, 1147.) The court held that the defendant committed two separate acts in arming himself with a firearm and then shooting at the inhabited dwelling, thus section 654 did not apply. (Id. at pp. 1148-1149.) Similarly, in People v. Ratcliff (1990) 223 Cal.App.3d 1401 (Ratcliff), when the defendant committed two robberies with a firearm within one and one-half hours, and one-half hour after the robberies was still in possession of the firearm, section 654 did not apply. (Id. at pp. 1404-1405, 1412-1413.) The defendant had already had the handgun in his possession at the time he arrived at the scene of the first robbery, and his possession of the weapon was not simultaneous with the robberies, but continued before, during and after those crimes. (Id. at p. 1413.)
The facts here are like those in Ratcliff and Jones and unlike the circumstances in Bradford. Defendant testified he grabbed his gun when Francis attacked him with the knife. Defendant referred to it as "my gun" at least once during his testimony. On cross-examination, he explained his gun was at his hip when he was talking to Mario before Francis approached him. Thus, defendant acknowledged the gun was his, and he already had possession of it before the encounter with Francis. There was also evidence from a search prior to the shooting that there was .22-caliber ammunition where defendant resided-which supports a conclusion defendant had possession of the .22-caliber firearm he used to shoot Francis well ahead of September 12, 2017. In sum, there was no evidence defendant seized upon the weapon "fortuitously 'at the instant of committing another offense .…'" (Jones, supra, 103 Cal.App.4th at p. 1145.) The prohibited act of possession of the firearm was separate and complete before the encounter with Francis occurred-the illegal possession of the firearm and the assault on Francis were not the result of a single physical act. Moreover, there are no facts suggesting the course of conduct in arming himself with a weapon and then shooting Francis with the gun were part of the same intent or objective-the facts indicate defendant's possession of the gun was antecedent to and separate from the primary offense of assaulting Francis with the firearm. Substantial evidence does not support the trial court's conclusion, based on the parties' general agreement at sentencing, that section 654 applies to count 3.
The trial court's conclusion that section 654 applies to count 3 is factually unsupported, and that aspect of the sentence is unauthorized: section 654 is inapplicable to count 3. However, as the People point out, the trial court did not stay the four-year concurrent term imposed on count 3, so there may be little practical effect on the sentence imposed. Nevertheless, for other reasons explained below, this matter shall be returned for full resentencing. Should the inapplicability of section 654 affect the trial court's exercise of its sentencing discretion in any respect, the trial court will have an opportunity to consider the matter again.
IV. Senate Bill No. 136
Defendant contends his prior prison term enhancement must be stricken under Senate Bill No. 136, although he maintains no resentencing is required. The People concede the issue, but maintain the case must be remanded for resentencing. We agree the prior prison term enhancement imposed under section 667.5, former subdivision (b), must be stricken and conclude the appropriate remedy is to remand the case with directions to strike the one-year enhancement and resentence defendant.
Senate Bill No. 136 amended section 667.5, subdivision (b), to limit prior prison term enhancements only to prior terms that were served for a sexually violent offense as defined by Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b), as amended by Stats. 2019, ch. 590, § 1, pp. 1-4, eff. Jan. 1, 2020.) As an amendment that ameliorates criminal punishment, Senate Bill No. 136 applies retroactively to cases like defendant's that were not final when the amendment took effect. (In re Estrada (1965) 63 Cal.2d 740, 745; see People v. Smith (2020) 46 Cal.App.5th 375, 396.)
Here, a one-year prior prison term enhancement was imposed for evading a police officer in violation of Vehicle Code section 2800.2, subdivision (a), and not for a sexually violent offense. Accordingly, this prior prison term enhancement must be stricken. Although defendant contends we should simply strike the one-year prior prison term enhancement and the case should not be remanded for resentencing, the trial court did not impose the maximum sentence, so resentencing is not futile. (See People v. Buycks (2018) 5 Cal.5th 857, 893, 896 & fn. 15 [observing that when part of a sentence is stricken on review, on remand for resentencing, a full resentencing as to all counts is appropriate; but concluding that remand was not warranted upon striking of two-year term because the trial court had imposed the maximum possible sentence].) Moreover, the trial court may wish to reevaluate the sentence imposed in light of our determination on section 654-although we state no opinion in that regard. Finally, newly enacted amendments to section 1385 became effective on January 1, 2022, and may be relevant upon resentencing. (Sen. Bill No. 81 (2021-2022 Reg. Sess.) ch. 721, § 1, pp. 1-3 (Sen. Bill No. 81).) For all these reasons, resentencing is appropriate so that the trial court may exercise its sentencing discretion anew.
The Legislature recently amended section 1385. Effective January 1, 2022, and applicable to sentencings occurring after the effective date, among other things, section 1385 provides that "[n]otwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute." (§ 1385, subd. (c)(1), see id. at (7), as amended by Sen. Bill No. 81.) We express no view on the effect of amended section 1385, as those issues shall be considered in the first instance by the trial court and the parties on remand.
DISPOSITION
The one-year prison term prior imposed under section 667.5, former subdivision (b), shall be stricken pursuant to Senate Bill No. 136. The trial court's determination that section 654 applies to count 3 is unsupported by substantial evidence, and the oral pronouncement of judgment is unauthorized in that respect. The matter is remanded for resentencing. In all other respects, the judgment is affirmed.
WE CONCUR: LEVY, Acting P. J., POOCHIGIAN, J.