Opinion
D074964
04-17-2020
THE PEOPLE, Plaintiff and Respondent, v. MOISES FLORES, Defendant and Appellant.
Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. SCD272842) APPEAL from a judgment of the Superior Court of San Diego County, Robert F. O'Neill, Judge. Affirmed; remanded for resentencing. Christine M. Aros, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Steve Oetting and Anthony Da Silva, Deputy Attorneys General, for Plaintiff and Appellant.
In the course of a chaotic fight in an apartment complex parking lot between Defendant Moises Flores and two furniture deliverymen, Flores used a baseball bat and meat cleaver in what he claimed was self-defense, defense of others, or defense of property. The jury accepted Flores's claim to a point, acquitting him of robbery (Pen. Code, § 211) and two counts of assault with a deadly weapon (§ 245, subd. (a)(1)) in connection with these events. But it did not accept that Flores acted in lawful self-defense or defense of others when he ran into a stranger's apartment, returned with a meat cleaver, and used it to strike one of the deliverymen in the leg. The jury convicted Flores of a single count of assault with a deadly weapon (§ 245, subd. (a)(1)), and he later admitted an enhancement, a prison prior, and a strike prior. In a separate proceeding, Flores pleaded guilty to an unrelated vandalism charge (§ 594, subds. (a) & (b)(1)). Denying his motion to strike his prior under People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 529-530, the court sentenced Flores to a cumulative term of 10 years and four months in state prison.
Further undesignated statutory references are to the Penal Code.
Arguing this was a close case hinging on the jury's assessment of his credibility, Flores claims certain evidentiary rulings and prosecutorial remarks deprived him of due process and a fair trial, preventing him from presenting a full defense. But as we explain, Flores's defense played a prominent role at trial, and the exclusion of certain evidence and comments by the prosecutor did not implicate his constitutional rights. There was either no error or harmless error as to each of the asserted claims. Whether viewed individually or cumulatively, they provide no basis for reversal.
Flores also challenges the denial of his Romero motion at sentencing and the court's imposition of a three-year middle term on count 4. We find no abuse of discretion as to either decision. As the People concede, however, pursuant to recent legislation, the one-year enhancement for serving a prior prison term may no longer be applied to Flores. (Stats. 2019, ch. 590 (Sen. Bill No. 136).) We therefore remand the matter with directions to strike that enhancement and resentence Flores accordingly. In all other respects, the judgment is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
Abelardo A. and Jesus V. were delivering furniture to a residence in the Paradise Hills neighborhood of San Diego. In the delivery van was a company-issued tool bag and a backpack with personal items belonging to Jesus. As Abelardo and Jesus were inside the customer's home, they saw a man steal their tool bag and drive off in a Cadillac Escalade.
Flores was the driver of the Escalade. After Jeremy, his front seat passenger, grabbed items off the delivery van, he directed Flores to "go go go." Flores sped through a nearby cul-de-sac, over a grassy patch, and onto an adjacent cul-de-sac, ending up at the parking lot of an apartment complex. The deliverymen pursued, eventually cornering the parked Escalade by blocking entrance to the parking lot with their van. Seeing the men arrive, Jeremy ran away.
Jesus got out of the delivery van and approached the Escalade. Flores told Jesus to move his van and threw his belongings toward him. As Flores tried to get out of his Escalade, Jesus blocked him, holding the door shut and punching him repeatedly in the face through the open window. While this was happening, Abelardo fought with Mark, Flores's backseat passenger, until Mark yelled " 'leave me alone' " and ran off. Flores exited the Escalade through the passenger side door and grabbed a baseball bat from his vehicle. He lifted his shirt toward the deliverymen, revealing a Mexican eagle tattoo to signal that he was Mexican too and did not want trouble. Jesus interpreted this motion as an attempt to diffuse the situation but ran away because Flores had a bat.
When Abelardo realized that Jesus had left, he felt afraid and got in the driver's seat of the delivery van. Attempting a three-point turn, he backed into the Escalade and wound up stuck on a concrete retaining wall. Flores swung the bat toward the driver's-side door of the van, hitting Abelardo's hand three times in the process.
Seeing his friend getting hit, Jesus returned to Abelardo's aid. He kicked the driver's-side door of the van, striking Flores and making him fall to the ground. When Flores tried to get up, Jesus punched him twice. Flores's watch fell off, and Jesus yelled, " 'get the watch, get the watch.' " He tried to kick Flores in the face to keep him down when Mark reappeared to protect him. Jesus then turned toward Mark. At some point in this melee, Flores managed to grab the keys to the delivery van and fling them on top of a nearby roof. As Flores explained at trial, he did not want Jesus and Abelardo to escape responsibility for damaging his Escalade.
Flores then knocked frantically on strangers' doors begging for help. When the last door opened, he ran inside Jonathan C.'s apartment and asked for something to protect himself. Flores grabbed a meat cleaver and ran back outside. Opening the passenger door of the delivery van, Flores attempted to strike Abelardo in the chest with the cleaver. He missed but managed to strike Abelardo in the leg as he exited the van, causing what Abelardo described at trial as a "burn." Still holding the cleaver, Flores got within eight feet of Jesus. Jesus attempted to throw a wrench at Flores. Flores then ran up a flight of stairs onto the second-floor balcony of the apartment complex. Jesus yelled for him to "come down, you fuckin' b."
Hearing the commotion, Flores and several onlookers called 911. Law enforcement came and diffused the situation. Just before they arrived at the scene, Flores discarded the meat cleaver and Jesus's headphone case in some nearby bushes. Drill bits and a bottle of cologne belonging to Jesus were later found in the search of Flores's Escalade.
The San Diego County District Attorney (D.A.) charged Flores with robbery (§ 211, count 1), assaulting Abelardo with a deadly weapon (a bat) (§ 245, subd. (a)(1), count 2), assaulting Jesus with a deadly weapon (a knife) (§ 245, subd. (a)(1), count 3), and assaulting Abelardo with a deadly weapon (a knife) (§ 245, subd. (a)(1), count 4). It was alleged that Flores committed these offenses while he was released on bail (§ 12022.1, subd. (b)). In addition, the second amended complaint listed three counts of vandalism over $400 stemming from an unrelated incident (§ 594, subds. (a) & (b)(1), counts 5-7), alleged that Flores had a prison prior (Former § 667.5, subd. (b), § 668), and alleged a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12 & 668). The court granted Flores's request to bifurcate proceedings, severing the vandalism charges in counts 5-7 from the robbery and assault charges.
During a jury trial on counts 1 through 4, the prosecution examined Abelardo, Jesus, a D.A. investigator, and several responding officers. Homeowner Roger S. described how Jesus and Abelardo left during their delivery to retrieve their tools. Postal employee Roel H. and apartment resident Gaor C. witnessed (and in Gaor's case, recorded) parts of the later fight and described what they saw. Another resident, Carlisle A., described Flores dropping some items in the bushes before police arrived.
Testifying in his own defense, Flores maintained he acted purely in self-defense—Jesus was armed with a box cutter and screwdriver, and Abelardo tried to run him over with the van. Andrea C., an apartment resident who called 911, corroborated that Abelardo appeared as if he was intentionally trying to run Flores over with the delivery van. Another apartment resident, Irene C., claimed that right after the van crashed into the Escalade, she saw Abelardo holding a blade and exclaiming that he was going to kill someone. Flores further explained on the stand that he had grabbed the meat cleaver to protect his friend Mark, who yelled out, "no" and "please stop" as Abelardo and Jesus were punching him. This conflicted with the recollection of prosecution witness Gaor, who testified that Flores ran out with the knife after things had settled down.
The jury accepted Flores's account in part, acquitting him of robbery and two of the three assault charges. But it convicted Flores in count 4 of assault with a deadly weapon for striking Abelardo's leg with the meat cleaver. After the verdicts, Flores admitted the allegation that he committed the offense while out on bail (§ 12022.1, subd. (b)), as well as the prior strike conviction and prior prison term. In a bifurcated proceeding, Flores pleaded guilty to one of the vandalism charges (count 5), and the prosecution dismissed the remaining charges.
At sentencing, Flores unsuccessfully sought to dismiss his prior strike conviction. Accepting the recommendation in the probation report, the court imposed a total term of 10 years and four months in state prison, consisting of: eight years on count 4 (three-year middle term, doubled for the strike, plus a two-year out-on-bail enhancement), a consecutive term of 16 months on count 5 (one-third the two-year middle term, doubled for the strike), and one year for the prison prior.
DISCUSSION
Flores argues various trial errors require reversal of his conviction for assault with a deadly weapon. He also challenges the sentence imposed for that count. Finally, he asserts that recent legislation requires striking the one-year prison prior enhancement. We address these contentions in turn, accepting only the last. A. Conviction in Count 4
Challenging his assault conviction, Flores contests the exclusion of certain evidence and the propriety of certain prosecutorial remarks. Whether viewed individually or cumulatively, Flores suggests these errors deprived him his constitutional rights to present a full defense and receive a fair trial. But as we explain, self-defense played a prominent role in the jury's assessment of the case. Insofar as the court excluded certain evidence concerning this theory, its rulings were either not error or not prejudicial. Nor did the prosecutor's remarks shift the burden of proof to the defense.
1. Exclusion of defense evidence
Trial courts have broad discretion to determine the admissibility of evidence. (People v. Jackson (2016) 1 Cal.5th 269, 320.) This discretion extends to the admission of evidence under the "rule of completeness" in Evidence Code section 356 (People v. Conejo (2016) 3 Cal.App.5th 36, 73) and limits to lay opinion testimony (People v. Sánchez (2016) 63 Cal.4th 411, 457 (Sánchez)). The application of ordinary rules of evidence generally does not infringe on a defendant's right to present a defense. (People v. Cunningham (2001) 25 Cal.4th 926, 998.) Moreover, because the error claimed by Flores is merely the rejection of certain evidence concerning his claim of self-defense, and not a wholesale preclusion of that defense, the Watson test applies—i.e., reversal is required only if it is reasonably probable that the defendant would have obtained a more favorable result absent the error. (People v. Bradford (1997) 15 Cal.4th 1229, 1325; People v. Garcia (2008) 160 Cal.App.4th 124, 133; see generally People v. Watson (1956) 46 Cal.2d 818, 836.)
Flores challenges the exclusion of his post-arrest statements to law enforcement, as well as transcripts of two 911 calls. We find no error and/or no prejudice as to each.
a. Statements to law enforcement
Evidence Code section 356 codifies the rule of completeness: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence." The purpose of this rule "is to avoid creating a misleading impression." (People v. Samuels (2005) 36 Cal.4th 96, 130.) It "applies only to statements that have some bearing upon, or connection with, the portion of the conversation originally introduced"—"[s]tatements pertaining to other matters may be excluded." (Ibid.; see People v. Chism (2014) 58 Cal.4th 1266, 1324.)
We do not draw narrow lines around the exact scope of inquiry. (People v. Harris (2005) 37 Cal.4th 310, 334.) If a statement that is admitted into evidence amounts to part of a conversation, the other side is entitled to place into evidence all that was said in the course of such conversation, provided those other statements have some bearing on or connection with the statements admitted. (Id. at pp. 334-335.) "There is no requirement of ambiguity in the primary admission; the rule merely calls for fair play." (1 Witkin, Cal. Evid. (5th Ed. 2012) Circumstantial Evidence, § 38, p. 413.)
San Diego Police Officers Anthony Sanchez and Robert Thatcher testified that Flores never mentioned any of his passengers stealing anything, nor any passenger in his vehicle besides Mark. According to Officer Joel Voss, Flores claimed the attack was "completely unprovoked." Responding to these inquiries, defense counsel tried to elicit testimony during her cross-examination of Officer Nicholas Kauler that Flores had later admitted to Kauler there was another passenger who had stolen items from the delivery van. The prosecutor objected that this was improper impeachment, and the court sustained the objection. When defense counsel responded that it was for completeness, not impeachment, the court maintained its ruling.
Later at trial, defense counsel asked the court to reconsider, explaining it was inaccurate to suggest that Flores had never admitted to the theft. The prosecutor acknowledged that after his arrest, Flores admitted his passenger's theft but disclaimed any involvement on his part. Nevertheless, because this statement was made in a later interview, the prosecutor asserted it was not admissible under the rule of completeness. The court reasoned that evidence had already come in about a passenger stealing property and running off and reaffirmed its ruling.
On appeal, Flores argues it was erroneous and prejudicial to preclude him from introducing his later revelations to law enforcement. The People respond that there was no abuse of discretion because "the rule of completeness did not apply to complete a statement [Flores made] at the scene with a statement that [he] made later after he was arrested." (See, e.g., People v. Farley (2009) 46 Cal.4th 1053, 1103 [no error in excluding additional letters from defendant to assault victim where the admitted letters were independently comprehensible on the offered topics].)
We need not determine whether error occurred because on our record, excluding Flores's post-arrest statements to police was harmless. (See People v. Arias (1996) 13 Cal.4th 92, 156-157 [sidestepping error under the rule of completeness to find no prejudice under the Watson test].) The substance came in through Flores's own testimony. He explained that to protect his friend, he initially hid Jeremy's role. But in a later interview with Officer Kauler, he admitted Jeremy's theft and disclosed names of both Jeremy and Mark. This evidence was not challenged by the People, so it was clear to the jury that Flores initially told police that the altercation was "unprovoked" but later admitted Jeremy's theft.
Moreover, Jeremy's theft and Flores's candor about it was probative, if at all, as to the circumstances leading to the initial altercation, not of Flores's later brandishing of a meat cleaver. As Flores recognizes, "the jury seemingly believed some of his testimony as evidenced by their acquittal in counts 1 through 3" but nevertheless "found that [Flores] acted unreasonably when he introduced the knife into the situation." Instructed that the right to use force in self-defense continues only as long as the danger reasonably appears to exist (CALCRIM No. 3474), the jury appears to have credited bystander Gaor's testimony that Flores ran out with the knife after the situation had calmed down to some extent. Because the excluded evidence would have had bearing only as to the acquitted counts, we find no reasonable probability its admission would have led to a more favorable outcome.
b. 911 Calls
Next, Flores argues that the trial court erred in excluding two 911 calls made by apartment residents Andrea C. and Alan C. Midway through trial, the prosecutor indicated he had just received two 911 transcripts. He sought to exclude as speculative Andrea's statement in her 911 call that the delivery van intentionally backed into Flores's Escalade. The court agreed that a witness could not offer lay opinion testimony as to what was on another's mind but ruled Andrea could testify as to her impression that the van deliberately backed into the other vehicle.
The prosecutor also sought to exclude Alan's 911 call as not based on his personal observations. Defense counsel explained that Irene, Alan's mother, was not a native English speaker and had directed her son to relay her observations to the dispatcher. Pressed for an offer of proof as to Irene's testimony, counsel stated Irene would testify that she saw Abelardo holding a knife and saying, " 'I am going to kill you.' " The prosecutor replied that he did not object to Irene testifying as to what she saw. The court ruled that Alan and Irene could each testify as to what they personally saw and heard, but the 911 calls were inadmissible.
Arguing the prosecution attempted to depict him as a liar and the initial aggressor, Flores asserts that statements by these individuals to the 911 dispatcher were admissible and would have corroborated his account and bolstered his credibility. We find no error, and no prejudice to the extent any error occurred.
There was no abuse of discretion in excluding Andrea's 911 call. A trial court has broad powers to exclude speculative evidence. (People v. Friend (2009) 47 Cal.4th 1, 48.) In addition, "[a] lay witness generally may not give an opinion about another person's state of mind, but may testify about objective behavior and describe that behavior as being consistent with a state of mind." (Sánchez, supra, 63 Cal.4th at p. 456, citing People v. Chatman (2006) 38 Cal.4th 344, 397; see Evid. Code, § 800.) Consistent with these principles, the court allowed the defense to examine Andrea as to what she observed but not speculate as to Abelardo's state of mind as he drove the delivery van. At trial, she testified that the van was initially blocking the parking lot entrance, until one man (Jesus) told the other (Abelardo) to back it up and "go, go, go." The van then hit the Escalade with enough force to turn the Escalade around. Flores ran out of the way as the van backed into his vehicle. He then ran to the front of the van, and the driver moved forward, "almost running [Flores] over."
Moreover, the forbidden opinion testimony came in at trial anyway, negating any possibility of prejudice. When asked, "did it appear to you that he hit the Escalade on accident or did it appear it was on purpose," Andrea replied, "It was definitely on purpose because he kept telling him go, but in Spanish." The prosecutor moved to strike her response as being based on speculation. Although the court noted the objection was "technically correct," it overruled it and said to "move along."
There was likewise no error in excluding Alan's 911 call. Witnesses generally must have personal knowledge of the facts to which they testify. (Evid. Code, § 702, subd. (a).) "When a witness's personal knowledge is in question, the trial court must make a preliminary determination of whether 'there is evidence sufficient to sustain a finding' that the witness has the requisite knowledge." (People v. Cortez (2016) 63 Cal.4th 101, 124, citing Evid. Code, § 403, subd. (a)(2).) Because it is undisputed Alan merely told the dispatcher what his mother told him she saw, Alan lacked personal knowledge of the matters relayed. It does not help, as Flores argues on reply, that Alan was acting as a translator for his Spanish-speaking mother. Flores could have called Alan to testify about his perception of events but chose not to.
Further, as with Andrea's 911 call, any probative information in the call came in at trial. Testifying for the defense, Irene recalled that after she heard a crash, Abelardo emerged holding a pocket knife and saying, "I'm going to kill you." Under these circumstances, there is no reasonable probability that admitting Alan's 911 call would have led to a more favorable outcome.
2. Prosecutorial Misconduct
Flores argues the prosecutor improperly shifted the burden of proof by questioning him about Mark's whereabouts and later commenting to the jury that both parties had the same evidence. As we explain, no burden-shifting occurred.
a. Additional background
Flores was convicted of assaulting Abelardo with a deadly weapon. In his case-in-chief, Flores testified that he ran into a house, grabbed a meat cleaver, and returned outside to protect his friend Mark, who was being attacked. On cross-examination, the prosecutor asked whether Mark was a good friend and whether Flores knew how to contact him. Although they were good friends, Flores said he did not know how to get in touch with Mark. This exchange followed:
"[Prosecutor]: Where is Mark? Mark could corroborate a lot of the things you're saying, right?
"[Flores]: Yes.
"[Defense Counsel]: Objection; burden-shifting.
"The Court: Well, I don't think so.
"[Flores]: I can answer.
"The Court: Well, just a moment. This is why they pay me the big bucks. [¶] Burden-shifting. Objection noted, but overruled. [¶] Do you understand the question?
"[Flores]: Yes, I do." [¶] . . . [¶]
"The Court: Go ahead, sir.
"[Flores]: Well, I was told that he had a little bit of a mental disability and that since he is in the military and he suffered some type of disability, he wasn't going to be a credible witness.
"[Prosecutor]: You made that decision he wouldn't be a credible witness?
"[Flores]: Absolutely not.
"[Defense counsel]: That would be attorney work product. It is his attorney's—
"The Court: Sustained."
Later, on redirect, defense counsel followed up on the decision not to call Mark as a witness. Flores agreed that he had given counsel Mark's name and contact information. Counsel then asked, "did I tell you that the investigator talked to Mark and Mark is schizophrenic?" The prosecutor objected that he lacked discovery on Mark's mental health, and the court sustained the objection for "facts not in evidence." Counsel then tried another approach, asking whether she had informed Flores that Mark "wouldn't be competent to testify in your trial, [and] that we couldn't just call him." Flores started to reply in the affirmative, but the prosecutor objected that the question called for a legal conclusion and there was no discovery on the topic. The court sustained the objection and directed the jury to disregard Flores's response.
Mark's whereabouts came up again during closing arguments. Defense counsel said her client was upset that after being assaulted and calling 911, he was the only person charged. She stated Flores would "love to have" Mark and Jeremy testify; they tried. Emphasizing that the prosecution bore the burden to disprove lawful self-defense, counsel pointed to witnesses not called and evidence not impounded that would have supported that defense theory. "And you heard that several people called 911," defense counsel argued, "[w]hy not play the 911 calls?"
In rebuttal, the prosecutor remarked that he "fundamentally disagree[d] with the idea that Mr. Flores has not had a fair trial." "He has had the right to call witnesses. He has had the right to testify. I played exactly what he told the officers." He stated that defense counsel "has the ability to present evidence, and we all have the same evidence. She has the same body-worn camera footage as I have. She has the same 911 calls that I have. There is nothing that I have that she doesn't." Defense counsel objected that this was "burden-shifting." The court disagreed but cautioned jurors that comments of counsel were not evidence. When defense counsel asked that the jury be told "that I attempted to and wasn't allowed to [introduce evidence] by objection," the court held a sidebar.
Outside the jury's presence, the court explained that burden-shifting happened when the prosecution suggests a defendant has to prove he or she was not guilty; commenting that both sides had the same evidence did not shift any burden. Defense counsel replied that the prosecutor's remarks implied that Flores should present evidence, when the defense had no burden to present anything. She continued that it was "improper argument, especially because your Honor knows I have them sitting right here. I brought the 911 transcripts. I was prepared to introduce the 911 calls, and counsel objected to them and your Honor ruled that I couldn't play them. So I think it is improper argument to say to the jury that I could have played 911 calls."
The court rejected this claim. To the extent the claim centered on 911 calls that were excluded, Flores could have called Alan. But nothing in the prosecutor's remarks shifted the burden to the defense to prove anything. He was entitled to comment on the evidence and note that the evidence was available to both sides. The prosecutor did not argue what the defense should have done.
At the end of trial, after the jury returned its verdict, the court clarified its reasoning. It explained, "the rule against burden-shifting does not mean that the prosecutor may not comment on the fact that the defense has failed to produce evidence or witnesses that it would [b]e reasonable to expect the defendant to produce in order to support his or her defense." And although there was authority suggesting a prosecutor couldn't "have it both ways" by capitalizing on evidence excluded on its own objection, defense counsel had objected before the prosecutor could say much about the excluded calls, and the issue was preserved for review.
b. Legal Principles
A prosecutor is duty-bound not to use reprehensive tactics to secure a conviction. "It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one." (Berger v. United States (1935) 295 U.S. 78, 88.) While "[a]dvocates are given significant leeway" during argument, it is prosecutorial misconduct to attempt to lessen the prosecution's burden of proof beyond a reasonable doubt. (People v. Centeno (2014) 60 Cal.4th 659, 666 (Centeno).)
Even so, "[c]omments on the state of the evidence or on the defense's failure to call logical witnesses, introduce material evidence, or rebut the People's case are generally permissible." (People v. Woods (2006) 146 Cal.App.4th 106, 112 (Woods), citing People v. Medina (1995) 11 Cal.4th 694, 755.) "A distinction clearly exists between the permissible comment that a defendant has not produced any evidence, and on the other hand an improper statement that a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence." (People v. Bradford (1997) 15 Cal.4th 1229, 1340 (Bradford).)
"It is, and remains, the prosecutor's burden to prove the case. If the defense chooses to produce evidence, the jury must, of course, consider it as part of the complete record before it. To that end, the prosecution can surely point out that interpretations proffered by the defense are neither reasonable nor credible. Nevertheless, even if the jury rejects the defense evidence as unreasonable or unbelievable, that conclusion does not relieve or mitigate the prosecutorial burden. The prosecution cannot suggest that deficiencies in the defense case can make up for shortcomings in its own." (Centeno, supra, 60 Cal.4th at p. 673.)
"A prosecutor's conduct violates the federal Constitution when it infects the trial with unfairness, and violates state law if it involves the use of deceptive or reprehensible methods of persuasion." (People v. Booker (2011) 51 Cal.4th 141, 184.) If the error is one of state law only, we do not reverse "unless it is reasonably probable the result would have been more favorable to the defendant in the absence of the misconduct." (People v. Ellison (2011) 196 Cal.App.4th 1342, 1353 (Ellison) [prosecutor's burden-shifting remarks were harmless].)
c. Analysis
Flores argues that commenting on his failure to call Mark, or stating that Flores had the same ability to present evidence, "subverted the presumption of innocence and placed a burden of proof on the defendant." We disagree.
At the outset, we are unconvinced the jury understood these remarks in the manner Flores suggests. (Centeno, supra, 60 Cal.4th at p. 667; People v. Lewis (2009) 46 Cal.4th 1255, 1304 (Lewis).) We do not lightly infer that the jury drew the most damaging rather than the least damaging meaning. (Centeno, at p. 667.) Jury instructions and the defense closing underscored that the prosecution at all times bore the burden of proof beyond a reasonable doubt, including that he did not act in lawful self-defense or defense of others. (CALCRIM Nos. 220, 3470.) The jury was instructed and reminded upon defense counsel's objection that arguments by attorneys were not evidence. (CALCRIM No. 222.) On this record, is not reasonably likely that the jury understood or applied the prosecutor's remarks as diluting the People's burden of proof.
In any event, there is no merit to the claim. Asking, "where's Mark?" and commenting that both sides had the same ability to present evidence amounted to a fair comment on Flores's failure to call a logical witness. (Bradford, supra, 15 Cal.4th at p. 1340.) " '[A] prosecutor may argue to the jury that a defendant has not brought forth evidence to corroborate an essential part of his defensive story[.]' " (People v. Gaines (1997) 54 Cal.App.4th 821, 825 [articulating general rule and finding error only because the prosecutor went further and commented on what the purported alibi witness would likely have said].) Given Flores's claim that he rushed out to protect Mark, it was permissible for the prosecutor to point to the failure to call Mark as a witness. Nothing in the prosecutor's questions or rebuttal argument suggested that Flores had the burden to prove that he brandished the meat cleaver in Mark's defense. (See Bradford, at p. 1340.)
The prosecutor's comments are akin to those found proper in People v. Gonzales (2012) 54 Cal.4th 1234, 1275. Defendant was convicted of murdering his wife's niece by torture. (Id. at p. 1242.) During closing arguments, defense counsel challenged the credibility of defendant's son's testimony at the preliminary hearing concerning how defendant had treated the niece, suggesting the testimony had been influenced by others. On rebuttal, the prosecutor highlighted defense counsel's failure to call his son's child advocate or psychologist to support that claim. (Id. at p. 1274.) Rejecting defendant's argument that prosecutorial misconduct occurred, the Supreme Court explained that "[a]s for the prosecutor's reference to witnesses not called, it is neither unusual nor improper to comment on the failure to call logical witnesses." (Id. at p. 1275.) The challenged remark fell "well short of showing the sort of deceptive, reprehensible, and prejudicial argument that would constitute misconduct." (Ibid.)
By comparison, it was erroneous (but not prejudicial) in Ellison, supra, 196 Cal.App.4th at page 1353 for the prosecutor to lessen the People's burden by telling jurors to consider whether it was reasonable to conclude the defendant was innocent. A similar error occurred in Centeno, supra, 60 Cal.4th at page 673 where the prosecutor repeatedly invited the jury to convict based on a reasonable interpretation of the evidence. No such error happened here, where the prosecutor simply pointed out a failure to call a logical witness. Finally, the prosecutor's remarks in this case are a far cry from the federal constitutional error in Woods, supra, 146 Cal.App.4th at pages 113 to 114, where a prosecutor vouched for a testifying police officer and argued in closing that defense counsel had an "obligation" to present evidence as to why that officer should not be believed.
An unrelated evidentiary error may have occurred when the court precluded defense counsel from exploring during her examination of Flores why Mark had not been called as a witness. Once the prosecution opened the door, defense counsel could explore this topic on redirect regardless of whether discovery had been provided. (Evid. Code, §§ 762, 774; People v. Hamilton (2009) 45 Cal.4th 863, 921.) But any error here too was harmless. Although Mark's whereabouts were central to the defense claim that Flores returned with a knife to protect Mark, there was broad consensus on that topic. Jesus testified that he turned toward Mark, who had just reappeared to protect Flores. Next, he remembered, Flores was running out with a knife. Although Abelardo initially testified that Mark returned after Flores brandished the knife, he later offered a timeline consistent with Jesus. Abelardo also suggested Mark was present after Flores returned, when Jesus grabbed a wrench. Bystander Jonathan C. likewise saw three people besides Flores when Flores ran in his apartment to get a knife. Beyond consistent testimony as to Mark's whereabouts the jury did get some indication as to why Mark was not called, even if defense counsel's inquiry was cut short. On this record, there is no reasonable probability that allowing further inquiry on redirect as to why Mark was not called would have produced a more favorable outcome.
A different analysis applies to the 911 calls. Flores maintains "it was improper for the prosecutor to argue that the defense had the ability to present evidence and state that the defense had the same body camera footage and 911 calls when he knew such evidence had been excluded due to his objections." Misconduct has been found where a prosecutor capitalizes on the erroneous exclusion of defense evidence during closing arguments. (People v. Varona (1983) 143 Cal.App.3d 566, 568, 570.) But we have found no error in the exclusion of the 911 calls, and no prejudice given the trial testimony by Andrea and Irene. It follows that to the extent it was improper for the prosecutor to comment on defense counsel's access to the 911 calls, it was harmless error. Any prosecutorial error in this regard did not deprive Flores of a fair trial, and it is not reasonably probable that but for this stray remark, Flores would have obtained a more favorable verdict. (Ellison, supra, 196 Cal.App.4th at p. 1353 [applying the Watson test to find misconduct harmless].)
We limit our focus to the 911 calls, as Flores failed to object to comments about body-worn camera evidence and does not argue on appeal that the failure to object on this basis amounted to ineffective assistance of counsel. (See Centeno, supra, 60 Cal.4th at p. 674 [specific objection is required]; Lewis, supra, 46 Cal.4th at p. 1303 [same].)
3. Cumulative Error
Flores argues that all of the errors above, taken together, prevented him from presenting his full defense—that he wielded the meat cleaver in self-defense or in defense of Mark. Whether viewed individually or cumulatively, he believes these errors deprived him of due process, a fair trial, and the ability to present a defense. However, as we explained, Flores's defense played a central role at trial, and rulings concerning the exclusion of certain evidence pertaining to that defense and comments by the prosecutor did not implicate his fundamental constitutional right to a fair trial. We have found either no error or no prejudice as to each of the asserted claims underlying his conviction for assault with a deadly weapon. It follows that any cumulative effect of the claimed errors does not warrant reversal of the judgment. (People v. Jablonski (2006) 37 Cal.4th 774, 825.) B. Sentencing on Count 4
Flores argues that the court abused its discretion in denying his Romero motion or, in the alternative, that the court should have imposed the lower term on count 4. We reject both claims.
1. Additional Background
Flores admitted suffering a prior strike conviction as a juvenile. In his sentencing briefs, he sought dismissal of the strike under Romero, supra, 13 Cal.4th 497, filing letters of support from family, church associates, and coworkers. At sentencing, defense counsel explained that the bulk of Flores's serious criminal history occurred as a juvenile, and while Flores showed poor judgment during this incident, he was striving to become a productive member of society. His strike offense happened just four days after he turned 16. Moreover, Flores was not looking for violence in the events leading to the assault. Reading his letter to the court aloud, Flores explained that he never intended for the situation to unfold as it did and asked for an opportunity to restore his family and get back to work.
In response, the prosecutor pointed to Flores's extensive criminal history. Flores was 29 years old at the time of his 2018 sentencing. Between 2003 and 2005, as a juvenile, he had committed a string of robberies, vandalism, burglaries, batteries, and convictions for resisting arrest and assault with a deadly weapon. In 2005, when he was 16, he pleaded guilty to aggravated assault and admitted inflicting great bodily injury when he attacked a victim with enough force to break his eye lobe—a strike. Flores was committed at the California Youth Authority (CYA) in 2005, where he was paroled and revoked repeatedly until his dishonorable discharge in 2012. As an adult, between 2010 and 2017, Flores was arrested for evading a police officer, driving under the influence, and possessing firearms and ammunition. He assaulted Abelardo while he was out on bail awaiting sentencing for the ammunition charge. During the incident, Flores could have stopped at any moment without running into a stranger's house, grabbing a weapon, and attacking Abelardo. Moreover, Flores had pleaded guilty to vandalism during a separate incident in which he vandalized vehicles belonging to 17 different individuals. Given his numerous convictions and repeated acts of violence, the prosecutor urged the court not to strike the prior strike.
The defense then reiterated its position. Much of Flores's past history related to gang incidents, and he had since left the gang. Despite his extensive criminal record, Flores was making strides to work, volunteer, go to church, and attend school. And he was only 16 at the time of his strike offense.
The court denied Flores's motion. Describing Flores as the "poster child for the strike law," it found he had yet to rehabilitate despite numerous opportunities. Since becoming an adult, he had been convicted for a DUI and firearm and ammunition possession. He pleaded guilty in 2016 to possessing shotgun shells and was set to be placed on probation; this offense occurred while he was out on bail awaiting sentencing.
Turning to the assault with the meat cleaver, the court noted that the probation report listed no factors in mitigation and three factors in aggravation. In the court's mind, Flores grabbed the cleaver and threatened to kill someone with it. Flores interjected, "absolutely not," and the court warned him not to speak or he would impose the upper term. Observing the assault happened in "broad daylight," it criticized Flores for running around with "some friends" rather than working or taking care of his family. Flores's statements to the probation officer were "living proof that if your lips are moving, you're lying." The court discounted the positive letters from community members, who were not present when Flores assaulted Abelardo. Concluding it was the "same story, different day" and that Flores offered excuses but failed to perform, the court stated it would deny the motion and impose the sentence Flores had "earned every single minute of." It then sentenced him to the three-year middle term on count 4, doubled for the strike. (§§ 667, subds. (e)(1), 1170.12, subd. (c)(1).)
2. Denial of Romero Motion
"California's 'Three Strikes' law applies to a criminal defendant who is currently charged and convicted of a felony and who has previously been convicted of one or more serious or violent felonies." (In re Coley (2012) 55 Cal.4th 524, 528.) But this scheme does not affect a court's discretion to dismiss a defendant's prior strike conviction. (Romero, supra, 13 Cal.4th at pp. 529-530; People v. Clancey (2013) 56 Cal.4th 562, 582.) Either on the court's own motion or on application of the parties, the court may order a prior strike conviction dismissed "in furtherance of justice." (§ 1385, subd. (a); People v. Carmony (2004) 33 Cal.4th 367, 375 (Carmony).) We review the denial of a motion to strike a prior strike conviction for abuse of discretion. (Carmony, at p. 377.)
"A [sentencing] court's discretion to strike prior felony conviction allegations in furtherance of justice is limited." (Romero, supra, 13 Cal.4th at pp. 529-530.) It "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 (1998) 17 Cal.4th 148, 161 (Williams).)
Given the "strong presumption" that any sentence imposed in conformity with the Three Strikes Law is rational and proper, a trial court abuses its discretion in denying a Romero motion only in limited circumstances—e.g., where the court was unaware of its discretion to dismiss or considered impermissible factors, or where applying the Three Strikes law to a set of facts would produce an arbitrary, capricious, or patently absurd result. (Carmony, supra, 33 Cal.4th at p. 378.) In short, it is not enough to show that reasonable minds might disagree; " 'where the record demonstrates that the trial court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the law, we shall affirm the trial court's ruling, even if we might have ruled differently in the first instance.' " (Ibid.)
In denying Flores's Romero motion, the court plainly understood the scope of its discretion. It denied the request because of Flores's extensive criminal history. Noting that Flores committed the present offense while he was out on bail, it deemed his prospects for reform poor and discounted letters from community members who had not observed the assault. Thus, the court considered individualized factors to decide whether Flores should be deemed outside the spirit of the Three Strikes Law. (See Williams, supra, 17 Cal.4th at p. 161; Carmony, supra, 33 Cal.4th at pp. 378-379 [although current offense was not violent, court reasonably denied motion because the defendant's lengthy and violent criminal record, unaddressed substance abuse problems, and spotty work history suggested poor future prospects].)
Flores responds that the court also relied on impermissible factors. (See Carmony, supra, 33 Cal.4th at p. 378.) Contrary to the court's finding, he argues there was no evidence he said he was going to kill someone as he wielded the meat cleaver. Nor was there indication that he was neglecting family or work obligations when the assault occurred. And while the court declared that Flores's statements to the probation officer was "living proof" that if he spoke he lied, the verdicts suggested the jury largely believed him.
In exercising its discretion on a motion under section 1385, a sentencing court is entitled to weigh the evidence presented at trial and make factual findings that are supported by substantial evidence. (In re Coley, supra, 55 Cal.4th at p. 561.) Flores is correct that the court misspoke in recalling he had threatened to kill someone while holding the knife. But we decline to read this comment in isolation and out of context. Read in its entirety, the transcript reveals that the court considered the entire picture of Flores's extensive criminal history to determine that his prospects for reform were poor and conclude he fell squarely within the spirit of the Three Strikes Law. And though the jury believed some of what Flores said, the conviction shows it did not accept his account in full. Whatever the positive community connections Flores had made, he chose that day to first associate with a thief and then follow his directions to speed off with stolen goods. His initial statements to law enforcement left out key details. And Flores continued to downplay his actions after his conviction, asserting in his presentence probation interview that he was only trying to protect himself and deserved at most a one-year sanction. Although the court may have sounded unkind in stating that Flores lied whenever he spoke, it was hardly unreasonable to suggest that his credibility was suspect.
Defense witness Irene C. testified that Abelardo brandished a pocket knife while threatening to kill someone. Although there was evidence Flores ran outside with a meat cleaver, no one testified about any threats he made while holding it.
Regardless of whether we might have ruled differently, the court balanced the relevant facts and reached an impartial decision in conformity with the spirit of the Three Strikes Law. (Carmony, supra, 33 Cal.4th at p. 378.) Given Flores's criminal history and poor performance in past periods of supervision, the denial of his Romero motion was neither irrational nor arbitrary. (See People v. Philpot (2004) 122 Cal.App.4th 893, 907.)
3. Selection of Middle Term
Assault with a deadly weapon carries a sentencing range of two, three, or four years. (§ 245, subd. (a)(1).) The trial court imposed a three-year middle term based on the recommendation in the probation report. Flores argues the failure to select the lower term was an abuse of discretion. We disagree.
"When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court." (§ 1170, subd. (b).) "The court shall select the term which, in the court's discretion, best serves the interests of justice." (Ibid.) In selecting among three authorized terms, "the sentencing judge may consider circumstances in aggravation or mitigation, and any other factor reasonably related to the sentencing decision. The relevant circumstances may be obtained from the case record, the probation officer's report, other reports and statements properly received, statements in aggravation or mitigation, and any evidence introduced at the sentencing hearing." (Cal. Rules of Court, rule 4.420(b).) Unless the record affirmatively shows otherwise, the sentencing judge is deemed to have considered the relevant factors. (Cal. Rules of Court, rule 4.409.)
Flores argues there were circumstances in mitigation the court failed to consider. He points to trial evidence that Jesus punched him first, after he tried to return his stolen belongings, and that Abelardo nearly ran him over with the delivery van. But there is no affirmative showing the trial court failed to consider the entire case record. (Cal Rules of Court, rule 4.409.) Many of these favorable facts were indeed summarized elsewhere in the probation report.
The probation report listed three aggravating circumstances: (1) the threat of great bodily harm, as Abelardo's leg could have been severed; (2) Flores's numerous juvenile and adult convictions; and (3) Flores's unsatisfactory performance on probation, CYA parole, and PRCS (Post Release Community Supervision). Flores disputes there was evidence that Abelardo's leg could have been severed but concedes the remaining two factors. Because a single aggravating factor is sufficient to support imposition of the upper term (People v. Ortiz (2012) 208 Cal.App.4th 1354, 1371), two admitted factors are plainly sufficient to support the imposition of the middle term.
In short, nothing in the record indicates the court acted in an irrational, arbitrary or capricious manner. There was no abuse of discretion in imposing the middle term. C. Prison Prior
In supplemental briefing, Flores argues the one-year enhancement for serving a prior prison term must be vacated based on the recent enactment of Senate Bill No. 136. When Flores was sentenced, section 667.5 mandated a one-year enhancement for each prior separate prison term. (Former § 667.5, subd. (b).) In October 2019, the Legislature passed Senate Bill No. 136, which limits the one-year enhancement to cases where the prior was for "a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (Stats. 2019, ch. 590, § 1.) The amendment took effect on January 1, 2020. (Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).)
Flores admitted serving a prior prison term for unlawful firearm possession under section 29820. Acknowledging that Senate Bill No. 136 applies retroactively to all nonfinal judgments under In re Estrada (1965) 63 Cal.2d 740, 742, the People request a remand, where the trial court will likely strike the prison prior enhancement.
We agree that Senate Bill No. 136 applies to Flores. (People v. Smith (2020) 46 Cal.App.5th 375, 396-397; People v. Gastelum (2020) 45 Cal.App.5th 757, 772; People v. Jennings (2019) 42 Cal.App.5th 664, 682.) Moreover, because Flores's prior prison term was not for a sexually violent offense, the one-year enhancement can no longer be imposed on him. When an error affects part of a sentence, we must remand for a full resentencing as to all counts to permit the court to exercise its sentencing discretion in light of the changed circumstances. (People v. Buycks (2018) 5 Cal.5th 857, 893.) We therefore remand for a full resentencing hearing and direct the trial court to strike the one-year enhancement.
DISPOSITION
The matter is remanded for a full resentencing hearing, where the trial court is directed to strike the one-year enhancement under former section 667.5, subdivision (b) and resentence Flores accordingly. Following resentencing, the court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
DATO, J. WE CONCUR: BENKE, Acting P. J. GUERRERO, J.