Opinion
F077192
02-26-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES MARSHALL FLORES, Defendant and Appellant.
Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17CMS3088)
OPINION
APPEAL from a judgment of the Superior Court of Kings County. Steven D. Barnes, Judge. Patrick J. Hennessey, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler and Lance E. Winters, Chief Assistant Attorneys General, Michael P. Farrell, Assistant Attorney General, Carlos A. Martinez and Daniel B. Bernstein, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
James Marshall Flores appeals from his convictions for assault with a deadly weapon and hit and run driving involving serious injury. He argues the trial court's denial of his motion to reopen the evidence after the defense had rested but before jury instructions and closing arguments were delivered, resulted in the denial of his right to testify in his own defense. We agree the trial court erred in refusing to reopen the evidence for the limited purpose of allowing Flores himself to testify. We further conclude the error was prejudicial as to Flores's conviction for assault with a deadly weapon but not as to his conviction for hit and run driving involving serious injury. Flores's conviction for assault with a deadly weapon is reversed and the matter remanded for further proceedings. The judgment is otherwise affirmed.
PROCEDURAL HISTORY
Flores was charged, in a second amended information (information), with assault with a deadly weapon, i.e., an automobile (count 1; Pen. Code, § 245, subd. (a)(1)) and hit and run driving involving serious injury (count 2; Veh. Code, § 20001, subd. (b)(2)). An enhancement for personal infliction of great bodily injury was attached to both counts. (§ 12022.7, subd. (a).) The information further alleged that Flores had suffered three prior serious felony and strike convictions. (§§ 667, subd. (a)(1), 667, subds. (b)-(i), 1170.12, subds. (a)-(d).)
Subsequent statutory references are to the Penal Code unless otherwise specified.
A jury convicted Flores of both counts and also found true the great bodily injury enhancement allegations. The trial court subsequently found true the prior conviction enhancement allegations.
Flores was sentenced to an aggregate term of 38 years to life in prison, a sentence that the court described as follows: "a determinate term of 13 years, followed by a life sentence, the minimum of which is 25 years." On count 1, Flores was sentenced to 25 years to life in prison, plus three years for the great bodily injury enhancement, along with five years each on two prior serious felony convictions. Flores was sentenced to 25 years to life in prison on count 2, which sentence was stayed pursuant to section 654.
FACTS
A. Prosecution Case
During the afternoon on August 20, 2017, A.M. was delivering pizza on Williams Street in Hanford in his Kia Forte. A.M. parked on the western side of Williams Street, "in front of the address [he] was delivering to," facing northbound. As A.M. headed back to his car after making the delivery, he saw other cars on the street as well. In particular, he saw a Jeep and a Mustang, both of which were parked on the same side of the street as A.M.'s Kia but were facing southbound. A.M. was parked in front of the Mustang, which, in turn, was parked about 15 feet in front of the Jeep. The Jeep was also approximately eight feet to the east of the Mustang.
A.M. had seen the Jeep "come up" and stop behind the Mustang. Flores was driving the Jeep. A man later identified as Louis V., was sitting in the passenger seat of the Mustang. A.M. saw Flores and Louis emerge from their respective cars and engage in the street. A.M. testified: "I saw them arguing and yelling and I proceeded to my car." A.M. continued: "They exchanged words. The defendant actually went back to his vehicle and, then, I'm not sure what happened exactly after that, but I know [Louis] went to the driver's side of the defendant's door, exchanged words still, and [Louis] was trying to go back to the vehicle and, then, I just seen him get run over from there." A.M. clarified that when Louis was up at the driver's side window of the Jeep, "his hands [were] swinging," "[j]ust like, you know, trying to get anger out or something like that." As Louis "was trying to go back southbound to the Mustang," "the defendant proceeded to press the gas and [Louis] got ran over." Thereafter, the Jeep "tried to speed off" but, by then, A.M.'s car was "actually in front of it," as A.M. had already made a U-turn to head southbound on Williams Street. While the Jeep was stuck behind A.M., A.M. was able to discern and write down on an old receipt, the Jeep's license plate number. A.M. then returned to the house on Williams Street, where the incident had occurred, "just in case the family members that were outside needed a license plate or anything."
A.M. acknowledged that he did not see the events leading up to the incident in their entirety, as he did not have his eyes on Flores and Louis at all times. A.M. also said he was around 80 feet away from where the incident occurred. A.M. could not see which direction the driver of the Jeep was looking at the time. A.M. was in the process of getting into his car when Louis was run over. Once A.M. was in his car, he made the U-turn to head southbound on Williams Street before the Jeep came up behind him. A.M. testified "I seen the leg go under the Jeep and, then, [Louis's] head hit the floor about twice. And that's when I was making the U-turn and, then, made my right turn [at the end of Williams Street] onto Hanford-Armona [Road]."
A.M. explained that when Louis was run over, Flores "at first" had attempted to see whether Louis was okay. Then, after Flores drove away, A.M. had "seen that [Flores] actually was, like, crying or tearing up after he did what he did." A.M. saw Flores crying when A.M. moved to a turn lane to turn off Hanford-Armona Road and Flores drove past him, going straight on Hanford-Armona Road.
Officer Jonathan Farr of the Hanford Police Department was dispatched to the scene. He found Louis lying on the ground in front of his residence on Williams Street. Louis's right leg appeared to be broken; it was also scraped up from "road rash." He also appeared to have a "possible head injury."
Louis was taken to the hospital, where he was treated by Dr. Jordan Beshore. Dr. Beshore testified Louis had a fractured femur, as well as a skull fracture and intracranial bleeding (bleeding in or around the brain). Dr. Beshore noted that "[t]hose types of injuries can be potentially life threatening."
Louis's mother, Denise, testified Louis was 32 years old. On the afternoon of August 20, 2017, Denise was inside her house on Williams Street when she heard Louis "arguing with somebody." Denise could not hear the other person, only her son, who was the "loud one." She testified: "I only heard one voice, but I heard him loud, so I went out the door. And when I walked to the door I didn't see my son, but I [saw] a vehicle leaving and right as I [saw] the vehicle leaving I see my son laying on the ground." She recognized the departing vehicle as belonging to Flores and his wife, Terry. Flores was a friend of Denise's brother, Ray, who also lived at the house on Williams Street. Denise explained that Louis "was approaching [Flores] for one reason." She added: "My son was after [Flores] to pay money because [Flores] had their extension cord from their trailer plugged into our electricity." Louis was upset "because he felt like [Flores] should pay for what they were using." Denise noted that at the time of trial, six months after the hit and run incident, Louis was wheelchair bound and unable to speak.
Hanford Police Detective Jason Gustin contacted Flores's wife, Terry, at her home in Hanford. Gustin saw a Jeep parked behind the house; the Jeep's license plate matched the license plate number provided by A.M. Gustin observed some suspected blood stains on the Jeep's undercarriage. He also observed some smear marks on the driver's side bumper area and quarter panel.
Hanford Police Corporal Richard Pontecorvo interrogated Flores on August 23, 2017. Initially, Flores denied driving the Jeep, explaining it belonged to his wife and he was not allowed to drive it. Flores also said, with regard to his whereabouts on August 20, 2017, that he was at his trailer, on property adjacent to his parents' house, all day. After Pontecorvo said he knew Flores had been on Williams Street that day, Flores stated he and his wife took a friend to a Big Lots store and then to Williams Street, to look for the friend's boyfriend. Eventually, after Corporal Pontecorvo said he was aware Flores had driven to Denise's house, Flores acknowledged he drove the Jeep to the Williams Street property. He said he went, at Terry's insistence, to pick up Ray, who needed new tires for a vehicle. Flores was parked out front when Louis rolled up in a blue Mustang. Flores explained he had problems with Louis in the past, when Flores had parked his trailer by Denise's house and utilized electricity from the house.
Flores told Corporal Pontecorvo that he remained in his car, but Louis approached him and told him to "get the fuck out of there." Louis continued to taunt him, so Flores rolled up his window and called Terry. Louis escalated matters by banging on the window, so Flores told him to get away from the car. Flores then started driving away and had barely taken his foot off the brake when the front of the car caught Louis's leg and Louis was pulled to the ground. Flores then got out of the car and said something to the effect of, "what the fuck." Flores said Louis must have jumped in front of the car. Flores called Louis a "fucking idiot." He also called him a "[f]ucking punk" for banging on his car window. Flores said he was not trying to hit or kill Louis. B. Defense Case
Corporal Pontecorvo testified he "believed" Flores had said Louis was in front of the car when Flores pulled forward but needed to consult his report to confirm Flores's statement on this point. At that juncture, the defense objected on grounds of speculation and the court sustained the objection. Although Pontecorvo circled back to this issue, he never clearly stated what Flores had said regarding Louis's location when Flores drove forward.
The defense called Matthew G., who was driving the Mustang in which Louis was a passenger. Louis was sitting with Matthew in the Mustang when Flores arrived. Louis got out when Flores pulled up in front of Louis's house. Matthew heard an argument between Louis and Flores. He heard Louis challenging Flores for rolling up his window while Louis was talking to him; Louis's tone got louder and louder. Matthew saw Louis tapping on Flores's window after Flores rolled it up. Louis was standing by the driver's window when he was hit.
DISCUSSION
I. Flores's Request to Reopen Proceedings to Enable Him to Testify
Flores argues the trial court abused its discretion in refusing Flores's request, after close of evidence, to reopen proceedings to enable Flores to testify. Under the circumstances of this case, we agree the court erred in refusing to reopen proceedings for this purpose. We further conclude the court's error was prejudicial as to Flores's conviction for assault with a deadly weapon but not as to his conviction for hit and run driving with serious injury. Accordingly, Flores's conviction for assault with a deadly weapon is reversed.
A. Background
At approximately 2:35 p.m. on the second day of trial, on the heels of the prosecution's case, the defense began its case. The defense first called as a witness, Matthew G., who was driving the Mustang from which Louis had emerged. Matthew finished testifying at approximately 2:45 p.m. Defense counsel then had the following exchange with the court (outside the presence of the jury):
"[COUNSEL]: I would like to have time to discuss with my client whether or not he chooses to testify.
"[THE COURT]: Okay. I'll give you a few minutes. This is the date for the trial. I would assume that you've had months to talk to your client about today.
"[COUNSEL]: We have.
"[THE COURT]: I'm not inclined to give you the rest of the day to speak with him or figure this out. It should have been figured out by now, so I'll give you a few minutes and [the prosecutor] and I will wait in the courtroom for you."
Counsel reported back to the court that he "went over the pros and cons of testifying" with Flores, in light of the "evidence [that] has been presented." He noted that "at this point," Flores was "choosing not to [testify]." After confirming with Flores that he was choosing "to exercise [his] right to remain silent and not testify," the court brought the jury back into the courtroom. At the court's prompting, the defense rested its case; the prosecutor declined to offer any rebuttal. The court then excused the jury for the rest of the day, noting that instructions and arguments would be given the next day. Thereafter, the court finalized the jury instructions with counsel for both parties and adjourned the proceedings until the next morning.
The next morning, before the jury came in, defense counsel informed the court that, upon further deliberation overnight, Flores wanted to testify. The defense requested permission to reopen its case to that end. The prosecutor, for his part, stated he had "[n]o objection ... [¶ ] ... [t]o the defendant being able to reopen." The court queried the prosecutor: "[Y]ou would love to have the defendant testify so you can cross examine him[?]" The prosecutor responded: "Precisely." The court then denied the defense request to reopen. The court said: "A request to testify after completion of the presentation of evidence will result in a disruption in the order of the proceedings, which I find in this particular circumstance as set forth in Penal Code Section 1093. I have discretion to permit a departure from the order of the proceedings, but only if good reason to do so exists. Based on the information I have there is no good cause or good reason to do so that I find exists." The court concluded: "I'm not allowing you to reopen, [defense counsel], to allow your client to testify pursuant to his late request. We'll then proceed to bring the jury in and I'll begin instructing the jury. Let's go."
B. Analysis
"[I]t cannot be doubted that a defendant in a criminal case has the right to take the witness stand and to testify in his or her own defense." (Rock v. Arkansas (1987) 483 U.S. 44, 49 (Rock).) "In fact, the most important witness for the defense in many criminal cases is the defendant himself." (Id. at p. 52.) The right to testify in one's own defense is rooted in multiple provisions of the United States Constitution, including the Fourteenth, Sixth, and Fifth Amendments. (Rock, supra, at pp. 51-52.)
The Fourteenth Amendment's "guarantee that no one shall be deprived of liberty without due process of law include[s] a right to be heard and to offer testimony." (Rock, supra, 483 U.S. at p. 51.) Indeed, the right to testify on one's own behalf "is one of the rights that 'are essential to due process of law in a fair adversary process.'" (Ibid.; In re Oliver (1948) 333 U.S. 257, 273 [the "opportunity to be heard" in one's own defense is "basic in our system of jurisprudence"].)
"The right to testify is also found in the Compulsory Process Clause of the Sixth Amendment," which grants an accused the right to call witnesses in his favor and is applicable to the states via the Fourteenth Amendment. (Rock, supra, 483 U.S. at p. 52.) Specifically, the accused's right to call witnesses in his favor logically includes the right to testify himself, should he decide it is in his favor to do so. (Ibid. ["A defendant's opportunity to conduct his own defense by calling witnesses is incomplete if he may not present himself as a witness."].)
Finally, "[t]he opportunity to testify is also a necessary corollary to the Fifth Amendment's guarantee against compelled testimony" as "'[e]very criminal defendant is privileged to testify in his own defense, or to refuse to do so.'" (Rock, supra, 483 U.S. at p. 53 ["'The choice of whether to testify in one's own defense ... is an exercise of the constitutional privilege.'"].)
"Of course, the right to present relevant testimony is not without limitation." (Rock, supra, 483 U.S. at p. 55.) "The right 'may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.'" (Ibid.) "But restrictions of a defendant's right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve." (Id. at pp. 55-56.)
The California Supreme Court has explained that a defendant's demand to testify must be "timely," but has not adopted an explicit test for evaluating the timeliness of a defendant's demand. (People v. Alcala (1992) 4 Cal.4th 742, 805.) Here, defense counsel sought to introduce the defendant's testimony after the defense had rested its case and, consequently, the defendant's demand to testify constituted a request to reopen to permit the introduction of additional evidence. (People v. Jones (2012) 54 Cal.4th 1, 66.)
A request to reopen is "'"addressed to the [trial] court's sound discretion"'" and the trial court's ruling is reviewed for abuse of discretion. (People v. Masters (2016) 62 Cal.4th 1019, 1069; see §§ 1093, 1094.) In determining whether an abuse of discretion occurred, the reviewing court considers four factors: "'"'"(1) the stage the proceedings had reached when the motion was made; (2) the defendant's diligence (or lack thereof) in presenting the new evidence; (3) the prospect that the jury would accord the new evidence undue emphasis; and (4) the significance of the evidence."'"'" (Ibid.) In the instant case, each of these factors weighed in favor of allowing the defendant to testify.
(1) Review of Trial Court's Ruling on Defense Request to Reopen
(i) Stage of the Proceedings
Here, Flores decided to testify after the close of evidence but before the jury was instructed and closing arguments were presented. The only intervening event between the close of evidence and Flores's request to testify was the discussion of jury instructions outside the jury's presence. Accordingly, reopening the evidence to allow Flores to exercise his constitutional right to testify would not have disrupted the flow of the trial in any significant way. (People v. Jones (2003) 30 Cal.4th 1084, 1110-1111 [trial court abused its discretion in refusing to reopen case where defense request to reopen was "made shortly after the closing of evidence"]; People v. Carter (1957) 48 Cal.2d 737, 757 [trial court abused its discretion in refusing to reopen to allow the defendant to present additional evidence where "[the] [d]efendant had only just rested, argument had not begun and the jury had not been instructed, and it [did] not appear that granting [the] defendant's request would have entailed any great inconvenience"]; United States v. Larson (8th Cir. 1979) 596 F.2d 759, 779 (Larson) [trial court erred in refusing to let the defense reopen, as "neither closing arguments nor jury instructions had yet been delivered," and any disruption to the "orderly flow" of the trial would have been minimal]; cf. People v. Marshall (1996) 13 Cal.4th 799, 836 [no abuse of discretion in denying defendant's request to reopen to present new evidence after the prosecutor had begun summation].)
Significantly, here the prosecutor was in favor of reopening the evidence to allow Flores to testify. Consequently, reopening would not have inconvenienced or prejudiced the prosecution in any way. Nor did the court identify any other possible disruption or inconvenience that, given the circumstances, would potentially justify restricting Flores's constitutional right to testify in his own defense.
(ii) Defendant's Diligence
As mentioned, at the end of the second day of trial, after the prosecution rested and the defense's one and only witness (Matthew G.) had testified, defense counsel asked for a recess to discuss with Flores the question of whether Flores should take the stand. The court restricted defense counsel's discussion with Flores to "a few minutes." After this limited discussion, Flores indicated he did not wish to testify. The very next morning, before the jury was called into the courtroom, defense counsel advised the court that Flores had reconsidered and wished to testify. (See Brooks v. Tennessee (1972) 406 U.S. 605, 612 ["Whether the defendant is to testify is an important tactical decision as well as a matter of constitutional right."].) In practical terms, and especially with regard to proceedings before the jury, there was no appreciable lag between Flores's initial decision and his reconsidered one, obviating the question of diligence. Accordingly, we cannot say Flores displayed a lack of diligence in asserting his desire to testify. (See People v. Rodriguez (1984) 152 Cal.App.3d 289 ["[O]ne of the reasons underlying the requirement of diligence is that a jury may accord undue weight to evidence which is admitted close to the time deliberations begin."].) Furthermore, here, as the prosecutor made clear, there was no question of prejudice to the prosecution.
(iii) Undue Emphasis
In People v. Funes (1994) 23 Cal.App.4th 1506, the court concluded a jury would likely have accorded undue weight to new evidence the defendant sought to introduce "after the jury had begun deliberations and in direct response to their request." (Id. at p. 1521, italics added.) The court observed that, given the circumstances, the jury "may have given the evidence more weight than it deserved, and put the prosecution at an unfair disadvantage." (Ibid.) In the present case, in contrast, had Flores been permitted to testify, his testimony would have immediately followed the testimony of another defense witness. Accordingly, there is no reason to believe the jury would have accorded his testimony undue weight. Moreover, the prosecutor was in favor of permitting Flores to testify and made clear he did not believe doing so would prejudice the prosecution's case.
(iv) Significance of the Evidence
A defendant's testimony in his own defense at a criminal trial is unique and inherently significant. "'The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself.'" (Green v. United States (1961) 365 U.S. 301, 304.) As the United States Supreme Court has observed: "Even more fundamental to a personal defense than the right of self-representation ... is an accused's right to present his own version of events in his own words." (Rock, supra, 483 U.S. at p. 52; United States v. Martinez (5th Cir. 2017) 872 F.3d 293, 300 (Martinez) [although the government might have impeached his testimony and defense counsel did not believe his testimony was a good idea, the defendant's presence on the stand "'would have afforded him the opportunity to have the jury observe his demeanor and judge his veracity firsthand'"]; United States v. Walker (5th Cir. 1985) 772 F.2d 1172, 1178-1179 (Walker) [defendant's "testimony would be of particular interest to the fact finder because he would be testifying as the alleged active participant in the activities which were the focus of the trial"].) Indeed, "[w]here the very point of a trial is to determine whether an individual was involved in criminal activity, the testimony of the individual himself must be considered of prime importance." (Id. at p. 1179.) In short, it is safe to say Flores's own testimony would count as significant evidence for the defense's case.
(v) Conclusion
The People cite to federal cases in arguing the trial court's refusal to reopen the defense case so as to permit Flores to testify was not an abuse of discretion. However, those cases are inapposite given that here the prosecutor had no objection to Flores's request—on the contrary, the prosecutor welcomed it. Our legal system is an adversarial one, whereby any restrictions on a defendant's right to testify must be "justified by countervailing interests." (United States v. Jones (8th Cir. 1989) 880 F.2d 55, 59; see United States v. Blankenship (6th Cir. 1985) 775 F.2d 735, 741 ["The most important consideration is whether the opposing party is prejudiced by reopening."]; United States v. Molinares (11th Cir. 1983) 700 F.2d 647, 652 [trial court properly allowed prosecution to reopen its case to present additional evidence where the ruling caused the defendant no "actual prejudice"].) Here, since the prosecutor had no objection to allowing the defense to reopen in order for Flores to testify, there was no significant countervailing interest to justify restricting Flores's constitutional right to testify in his own defense.
This case is more closely analogous to the situation presented in People v. Solomon (1996) 220 Mich.App. 527, 536 (Solomon). In Solomon, after the defense rested, the jury was dismissed, and the court reviewed jury instructions with counsel. (Id. at p. 532.) Thereafter, about 30 minutes following the close of proofs, when the court inquired whether the parties were ready for closing arguments before the jury, the defendant sought to testify. (Id. at p. 533.) The trial court declined to reopen the evidence, concluding the defendant's belated change of heart amounted to "'playing games.'" (Ibid.) The appellate court ruled the trial court's refusal to reopen the proofs was an abuse of discretion. In reaching its ruling, the appellate court noted it was unable to find any indication that allowing the defendant to testify would have (1) given him an unfair advantage, (2) surprised or prejudiced the prosecution, or (3) "disrupted the flow of the trial in any significant way." (Id. at p. 535.)
In sum, courts "must evaluate whether the interests served" by restrictions on a defendant's right to testify "justify the limitation imposed" on this most "'basic'" of rights accruing to a defendant in a criminal case, i.e., the "right to present his own version of events in his own words." (Rock, supra, 483 U.S. at pp. 56, 51, 52.) Here, the trial was relatively short and involved a single defendant, instructions and closing arguments had not been delivered when the request to reopen was made, and the prosecutor had acquiesced to the defense's request to reopen. As for the general interest of the court in conducting the trial in an orderly manner, on the instant facts, any potential for disruption of the proceedings arising from the defense request to reopen was limited. We conclude the restriction on Flores's constitutional right to testify in his own defense was not justified by sufficiently weighty countervailing interests. (People v. Robles (1970) 2 Cal.3d 205, 215 [the right to testify in one's own behalf is of "fundamental importance"]; People v. Vargas (1987) 195 Cal.App.3d 1385, 1394 [the right to testify is a "fundamental" constitutional right "personal to the defendant"].) The trial court's refusal to permit the defense to reopen its case for the limited purpose of eliciting testimony from Flores himself was, therefore, an abuse of discretion. (Rock, supra, 483 U.S. at pp. 55-56 ["restrictions of a defendant's right to testify may not be arbitrary or disproportionate to the purposes they are designed to serve"].)
(2) Prejudice
Having decided the trial court erred in denying Flores's request to reopen the case to permit him to testify, we next consider whether the error was prejudicial. More specifically, we evaluate whether the error was harmless beyond a reasonable doubt. (People v. Allen (2008) 44 Cal.4th 843, 871-872 (Allen) [prejudice from improper denial of a defendant's right to testify is evaluated under the Chapman standard]; People v. Johnson (1998) 62 Cal.App.4th 608, 634-636 [same]; Chapman v. California (1967) 386 U.S. 18, 24 ["before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt"].) The Chapman standard "requires the People, in order to avoid reversal of the judgment, to 'prove beyond a reasonable doubt that the error ... did not contribute to the verdict obtained.'" (People v. Mower (2002) 28 Cal.4th 457, 484; People v. Stritzinger (1983) 34 Cal.3d 505, 520 ["The burden is on the beneficiary of the error 'either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment'"].) "'[I]t is only the most extraordinary of trials in which a denial of the defendant's right to testify can be said to be harmless beyond a reasonable doubt.'" (Allen, supra, at p. 872, quoting Martinez v. Ylst (9th Cir. 1991) 951 F.2d 1153, 1157 (Ylst).)
Flores argues the trial court's erroneous denial of his right to testify prejudiced him with respect to his conviction for assault with a deadly weapon in count 1. The defense theory, with respect to the assault charge, acknowledged that Flores had hit Louis with his car but posited it was an accident and that Flores did not have the requisite mens rea for assault with a deadly weapon.
The charging statute, section 245, subdivision (a)(1), provides: "Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm shall be punished ...." Our Supreme Court delineated the requisite mens rea for an assault crime in People v. Williams (2001) 26 Cal.4th 779, 788 (Williams). Williams held that "assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another." (Id. at p. 790.) In other words, the mens rea required for assault is that a defendant "must be aware of the facts that would lead a reasonable person to realize that a battery would directly, naturally and probably result from his conduct." (Id. at p. 788.) Williams clarified, however, that "mere recklessness or criminal negligence is still not enough [citation], because a jury cannot find a defendant guilty of assault based on facts he should have known but did not know." (Ibid.) On the other hand, "assault does not require a specific intent to cause injury or a subjective awareness of the risk that an injury might occur." (Id. at p. 790.) The jury, with respect to the assault with a deadly weapon charge, was instructed pursuant to CALCRIM No. 875:
"The defendant is charged in Count 1 with assault with a deadly weapon other than a firearm in violation of Penal Code section 245.
"To prove that the defendant is guilty of this crime, the People must prove that:
"1. The defendant did an act with a deadly weapon other than a firearm that by its nature would directly and probably result in the application of force to a person;
"2. The defendant did that act willfully;
"3. When the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone;
"AND
The parties do not dispute that the jury was correctly instructed on the elements of the crime of assault with a deadly weapon. (See CALCRIM No. 875; Williams, supra, 26 Cal.4th at p. 790 ["assault only requires an intentional act and actual knowledge of those facts sufficient to establish that the act by its nature will probably and directly result in the application of physical force against another" (italics added)].)"4. When the defendant acted, he had the present ability to apply force with a deadly weapon other than a firearm to a person."
As reflected in the relevant jury instruction, a person has the requisite mens rea for an assault crime when he is actually aware of facts that would make a battery objectively foreseeable. Here, the prosecution's theory of the case was that Flores committed an assault on Louis when Flores hit Louis with his car. In order to establish this conduct constituted an assault, the prosecution had to prove that, when Flores engaged in this conduct, he had the requisite mens rea. Under Williams, the mens rea the prosecution was required to prove was that Flores knew specific facts—primarily, where Louis was standing relative to the car—that made it objectively foreseeable that when Flores drove off, a battery would directly, naturally, and probably occur. (See People v. Wright (2002) 100 Cal.App.4th 703, 706 [under Williams, "any operation of a vehicle by a person knowing facts that would lead a reasonable person to realize a battery will probably and directly result may be charged as an assault with a deadly weapon"].)
For its part, the defense relied on the accident defense and sought to negate the prosecution's proof of mens rea. To do so, the defense had to show that, when Flores drove off, possibly in a bid to diffuse an argument with Louis, Flores did not actually know facts that made it objectively foreseeable that, by driving off, he would naturally and probably hit Louis with his car. In light of the theory of defense, had Flores been given the opportunity to testify, he reasonably would have testified about the facts he perceived when he decided to drive away from the argument with Louis. Such testimony would, by any lights, be critical to his defense. Corporal Pontecorvo testified that Flores told him Louis must have jumped in front of the car when Flores was driving away. Furthermore, Pontecorvo's testimony about Flores's statements regarding where Louis was standing at the time was unclear. Nor was the jury shown a transcript or video of Pontecorvo's interrogation of Flores. If Flores had taken the stand, he could have elaborated on these issues and shed light on the question whether the facts he actually perceived at the time made the resulting battery objectively foreseeable.
The respective testimony provided by A.M. and Matthew G. was not a substitute for Flores's testimony as to Flores's own perceptions at the time he drove off. A.M., who, at the relevant time, was returning to his own car after delivering a pizza, said he did not see the events leading up to the hit and run incident in their entirety and did not have his eyes on Flores and Louis at all times. A.M. was around 80 feet or so away from where the incident occurred and was in the process of getting into his car when Louis was run over. Although A.M. witnessed Louis get hit by Flores's Jeep—and believed Louis had stepped away from the Jeep to return to the Mustang—A.M.'s description of the events leading up to the point of impact is not entirely clear. A.M. also testified that after Louis was hit, Flores initially attempted to check on Louis and was crying as he drove away from the scene. As for Matthew G., he testified Louis was standing by the driver's window of Flores's Jeep when he was hit. There was thus an apparent conflict in the evidence as to Louis's location when Flores drove forward. Had he taken the stand, Flores reasonably would have clarified where he perceived Louis was standing when he drove forward, and such testimony potentially could have created a reasonable doubt as to whether he had the mens rea for assault with a deadly weapon.
Our analysis does not change in view of the fact that Flores did not make a formal proffer as to the content of his testimony. Flores would logically be expected to describe his version of events, including where Louis was standing when Flores decided to drive forward. Since the evidence on this point was conflicting, we cannot say Flores's testimony would have been cumulative. In any event, the operative question was what facts Flores actually knew, an issue other witnesses could not address on Flores's behalf. In other words, "[p]lainly, [defendant's] testimony had 'exculpatory potential' and 'would have enhanced [his] defense.'" (Walker, supra, 772 F.2d at p. 1179; see also People v. Harris (1987) 191 Cal.App.3d 819, 824 ["[W]e entertain the gravest doubts regarding the propriety of any court requiring a defendant to announce his anticipated testimony simply to justify his right to take the stand."]; Martinez, supra, 872 F.3d at p. 300 [the lack of a formal proffer was not of "'any real significance'" where it was obvious the defendant would testify as to his version of events and "[n]either the court nor the Government pressed defense counsel for a proffer"].)
The People have not shown that the trial court's error in rejecting the defense request to reopen its case in order for Flores to testify was harmless beyond a reasonable doubt. On the contrary, Flores would have been able to address relevant and significant issues in relation to the mens rea required for assault. Even "[a]part from what [Flores] would have testified to, his presence on the stand would have afforded him the opportunity to have the jury observe his demeanor and judge his veracity firsthand." (Walker, supra, 772 F.2d at p. 1179 [denial of the defendant's right to testify was prejudicial where his testimony had "'exculpatory potential'" and "'would have enhanced [his] defense'"]; Martinez, supra, 872 F.3d at p. 300 [denial of the defendant's right to testify was prejudicial because he would have told "'his version' of events" from the perspective of the defense].) Indeed, our Supreme Court has explained that "issues of credibility are for the jury to resolve" and "[f]or this reason, 'it is only the most extraordinary of trials in which a denial of the defendant's right to testify can be said to be harmless beyond a reasonable doubt.'" (Allen, supra, 44 Cal.4th at p. 872; Ylst, supra, 951 F.2d at p. 1157 [only in an extraordinary case can an appellate court conclude "there is not even a reasonable doubt whether the jury might have believed" the defendant's testimony].) The case at bar does not constitute such an "extraordinary" trial. The jury's determination of Flores's mens rea hinged on the facts that were actually known to him at the time he hit Louis. Flores's testimony was potentially exculpatory with respect to the assault with a deadly weapon charge, and his credibility was for the jury the decide. Accordingly, we must reverse Flores's conviction on count 1.
Flores does not appear to argue, and has not shown, that the trial court's error resulting in a denial of his right to testify was prejudicial as to his conviction in count 2, for hit and run driving involving serious injury. Nor did Flores seriously contest this charge at trial, where defense counsel argued: "Now, undoubtedly, the hit and run is the most strongest count for the D.A. And the reason for that is they don't have to prove intent as they have to in Count 1. Please ... do not contaminate ... [the two] count[s] and assume that they all require the same thing."
As stated, count 2 charged Flores with hit and run driving with serious injury in violation of Vehicle Code section 20001. The jury was instructed this offense had the following elements: (1) while driving, the defendant was involved in a vehicle accident; (2) the accident caused permanent, serious injury to someone else; (3) the defendant knew he had been involved in an accident that injured another person or knew from the nature of the accident that it was probable another person had been injured; and (4) the defendant willfully failed to stop immediately at the scene of the accident, to provide reasonable assistance to the injured person, or to give identifying information to the person struck or to any peace officer at the scene. (See CALCRIM No. 2140.) We conclude the court's error was not prejudicial as to count 2.
To the extent Flores argues the denial of his right to testify was prejudicial as to the great bodily injury enhancement attached to count 2, that argument is unavailing because it is clear Louis was seriously injured when hit by Flores's Jeep and the enhancement does not require the injury to be intentionally inflicted. (§ 12022.7, subd. (a); see People v. Poroj (2010) 190 Cal.App.4th 165, 174.) Accordingly, Flores's conviction on count 2 is affirmed, as is the great bodily injury enhancement attached to that count. II. Sufficiency of the Evidence Underlying Flores's Assault Conviction
Flores challenges the sufficiency of the evidence underlying his conviction for assault with a deadly weapon in count 1. Although we reversed the conviction, we conclude it was supported by sufficient evidence and that retrial is therefore permissible.
When considering a challenge to the sufficiency of the evidence to support a judgment, we review the record in the light most favorable to the judgment and decide whether it contains substantial evidence from which the finder of fact could make the necessary finding beyond a reasonable doubt. We presume every inference in support of the judgment that the finder of fact could reasonably have made. We do not reweigh the evidence or reevaluate witness credibility. We cannot reverse the judgment merely because the evidence may be reconciled with a contrary finding. (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
The only question with respect to the assault with a deadly weapon charge was Flores's mens rea in driving forward as he did. The evidence showed that immediately prior to impact, Louis was standing by the driver's door of Flores's Jeep or possibly crossing in front of the Jeep to return to the Mustang in which Louis had recently arrived. Furthermore, A.M. testified he saw Flores's car run over Louis's leg and Louis fall and hit his head on the ground. The jury could have reasonably inferred, based on this evidence, that Flores knew Louis was standing close enough to the car such that the risk of a battery, were Flores to pull forward, was objectively foreseeable. Thus, the evidence was sufficient to support Flores' conviction on count 1. Retrial on this count is therefore permissible.
DISPOSITION
Flores's conviction for assault with a deadly weapon in count 1 is reversed with retrial permitted. Flores's sentence is vacated. The judgment is affirmed in all other respects. The matter is remanded for further proceedings consistent with this opinion.
Since we have vacated Flores's sentence and are remanding for a new sentencing hearing, Flores's contentions related to his sentencing are rendered moot and we need not address them. These contentions are: (1) that the trial court abused its discretion in denying Flores's Romero motion and, (2) that remand is required to give the trial court an opportunity to exercise its newly-acquired discretion under Senate Bill No. 1393 (2017-2018 Reg. Sess.) to strike prior serious felony enhancements imposed pursuant to section 667, subdivision (a). (People v. Superior Court (Romero) (1996) 13 Cal.4th 497.) As to the latter issue, the People agree with Flores that remand is required under Senate Bill No. 1393. Finally, in light of our reversal of Flores's conviction for assault with a deadly weapon, Flores may renew his Romero motion in connection with his resentencing. --------
/s/_________
SMITH, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
LEVY, J.