Opinion
F077482
06-26-2020
THE PEOPLE, Plaintiff and Respondent, v. MICHAEL DEANDRE FLOWERS, Defendant and Appellant.
Daniel G. Koryn, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. F17906956)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Houry A. Sanderson, Judge. Daniel G. Koryn, 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.
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INTRODUCTION
A jury convicted appellant Michael Deandre Flowers of the following crimes involving his then girlfriend: Assault by means likely to produce great bodily injury (Pen. Code, § 245, subd. (a)(4); count 3); two counts of dissuading a witness from prosecuting a crime (§ 136.1, subd. (b)(2); counts 4 & 5); and six counts of misdemeanor contempt of court (§ 166, subd. (c)(1); counts 6-11).
All future statutory references are to the Penal Code unless otherwise noted.
The verdict forms for counts 4 and 5 incorrectly list these charges under section 136.2 , subdivision (b)(2). The abstract of judgment, however, correctly lists these convictions under section 136.1 , subdivision (b)(2).
Appellant received an aggregate prison term of 21 years. In count 3 (assault by means likely to produce great bodily injury), the trial court imposed an upper term of four years, which was doubled because of a prior strike conviction. A five-year enhancement (§ 667, subd. (a)(1)) was added. In counts 4 and 5 (dissuading a witness), the court imposed consecutive full middle term sentences of two years, which were doubled because of the prior strike. For the remaining misdemeanor convictions in counts 6 through 11, the court sentenced appellant to time in county jail, and he was given credit for time served. The court imposed various fines and assessments.
In count 3, the court also imposed a one-year prior prison term enhancement (§ 667.5, subd. (b)). The court, however, stayed this enhancement. As we explain later in this opinion, this one-year enhancement must be stricken.
The full consecutive middle terms were appropriate under section 1170.15.
In count 1 (corporal injury to a cohabitant or child's parent; § 273.5, subd. (a)), the jury found appellant not guilty. In count 2 (making criminal threats; § 422), the jury was unable to reach a unanimous verdict, and a mistrial was declared. The prosecution ultimately dismissed this charge.
Appellant asserts that the trial court erred in failing to instruct the jury in count 3 with the lesser included charge of simple assault. He also contends this matter should be remanded pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess.) (Senate Bill 1393) for the court to exercise its discretion whether to dismiss or strike the five-year enhancement under section 667, subdivision (a)(1). Finally, he argues his constitutional rights were violated when the court imposed the fines and assessments without determining his ability to pay. (See People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas).) We determine appellant has forfeited his assertions under Dueñas and we reject the other various claims. We agree with the parties, however, that pursuant to Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136) the one-year enhancement imposed under section 667.5, subdivision (b), must be stricken. We strike that enhancement but otherwise affirm the judgment.
BACKGROUND
At trial, the prosecution established multiple violent incidents involving appellant and the victim. Appellant and the victim were in a romantic relationship and living together when most of these events occurred. In August 2016, the victim was pregnant with appellant's child.
The victim also had a minor son from a previous relationship. Her son resided with them.
Appellant did not present evidence at trial. We summarize the prosecution's case against him. I. The Incident On August 4, 2016 (Count 3).
On the night of August 4, 2016, appellant and the victim had a verbal altercation after she found drug paraphernalia in their residence. She had previously told him that she did not want any drugs there. She screamed at him and she told him repeatedly to leave. He screamed back at her. The incident escalated. She pushed appellant on his chest. He put his arm around her neck and he began to choke her. According to the victim, appellant had "[v]ery firm" pressure on her neck. She had trouble breathing and she told him to stop. She told him that he was hurting her. The victim jerked her body and they fell onto the bed. Appellant landed on top of the victim's stomach while he kept his arm around her neck. At some point during these events, the victim urinated on herself. She had trouble breathing the entire time.
Appellant released his grip and he left the residence, driving away. The victim felt a lot of pain around her neck and throat. Her voice was raspy, and she was coughing. About 10 or 15 minutes later, she coughed up a "little bit of blood."
The victim was worried about her unborn child. About 45 minutes after this incident ended, the victim drove herself to a hospital. She did not contact police because she was terrified of retaliation. She was also afraid more drug paraphernalia might be in their residence, and she did not want police thinking she was using drugs.
A police officer, however, was dispatched to the hospital and he spoke with the victim. She was still terrified of appellant when she spoke with the officer because she did not know what appellant might do to her if she talked with police. The officer took photographs of the victim's injuries, which were moved into evidence at trial. The photos showed redness on the victim's neck and chest.
During closing argument, appellant's trial counsel asserted that the pictures only showed a "very minor redness."
At the hospital, the officer recorded some of the victim's statements, which were played at trial. The victim's recorded statements were similar to her trial testimony regarding the nature of her altercation with appellant. In her recorded statements, the victim said appellant had put his arm around her neck and he had choked her.
The victim testified at trial that, on the morning after this incident, appellant had returned to the house and he had apologized to her. Appellant had remained adamant that the drugs which the victim had found did not belong to him. She decided to forgive him, and they continued their relationship. She did not follow up with law enforcement regarding this incident. II. An Uncharged Incident On November 16, 2016.
The victim testified that no harm had occurred to her unborn child.
On November 16, 2016, two days before the victim's daughter was born, appellant and the victim got into an argument that turned physical. The victim received a bruise to her face. At trial, however, she could not remember how she had received that bruise. III. The Incident On February 13, 2017 (Counts 1 and 2).
On February 13, 2017, the victim confronted appellant with concerns of his infidelity. An argument ensued, which turned physical. Later that day, the victim's former boyfriend came to check on her. She went outside and sat in his vehicle to talk. Appellant came outside and he yanked the victim out of that vehicle. Appellant threw the victim and she fell onto the ground. Appellant yelled at the victim, saying he was going to "fuck [her] up" and he said he was going to get his gun and return. Appellant, however, drove away in his vehicle while screaming at the victim and her ex-boyfriend.
The victim told the jury that she took appellant's threat to use a gun seriously. Although she did not know if he owned a gun, he had talked about firearms before, and he had mentioned having a gun at a friend's house. This incident left the victim feeling humiliated, terrified, and embarrassed. She was crying. IV. The March 8, 2017, Protective Order And Its Subsequent Violations (Counts 9, 10 and 11).
On March 8, 2017, the victim obtained a protective order, which prohibited appellant from having any contact with her or coming within 100 yards of her. The victim, however, admitted at trial that, after the protective order was in place, she did permit appellant to come over to the residence at times to see his daughter. After the protective order was in place, police were called for the following three incidents.
1. On or about July 14, 2017, appellant showed up in the middle of the night to see his daughter. The victim did not allow him to enter the residence. Instead of leaving, appellant parked his vehicle in the driveway of the victim's residence. The next morning, appellant's vehicle prevented the victim's father from leaving and taking the victim's son to school. Appellant refused to move his vehicle.
2. On August 7, 2017, appellant came to the victim's house acting "[e]rratic and agitated" and he refused to leave. He laid down on the kitchen floor. When officers arrived at the residence, appellant fled from the back of the house.
3. On September 21, 2017, appellant forced his way into the victim's house and he removed a television set that belonged to him. While doing so, he knocked over and broke a dresser.
V. Appellant is arrested.
After the incident on September 21, 2017, and later that same day, appellant telephoned the victim. He left her an obscenity-laced voice message in which he threatened to injure her. Sometime after leaving this message, appellant was taken into custody. The victim kept the message, and it was played for the jury.
VI. Appellant Sends Letters To The Victim From Jail (Counts 4 Through 8).
At trial, the victim noted that, while appellant's case was pending, he had told her multiple times to contact the prosecutor and tell them she did not want to press charges, and that she had made a mistake and had lied. While in jail, appellant sent three letters to the victim. The first letter was mailed on October 16, 2017. Appellant apologized and he asked the victim to write a notarized letter to the district attorney saying she had made a mistake and she wanted the prosecutor to drop the case.
The second letter was mailed on October 23, 2017. Appellant again instructed the victim to send a notarized letter to the district attorney. He told the victim to claim he had only "restrained" her, and he had never slapped or threatened her, and he had never pulled her out of a vehicle. He also suggested she "don't show" at trial or "deny everything" at trial.
On November 16, 2017, appellant wrote a third letter to the victim. He complained that she had refused to answer his telephone calls from jail. At trial, the victim explained that she had received about a dozen calls from appellant while he was in jail. She ignored his calls, and she eventually blocked them.
VII. At Trial The Victim Testified Under Immunity Because She Had Lied During The Preliminary Hearing.
At trial, the victim testified under a grant of immunity. The immunity was given because she had lied during her preliminary hearing testimony in this matter. During her prior testimony, the victim had tried to cover up appellant's crimes. At trial, she told the jury that, when she first testified in this matter, she still considered appellant to be her boyfriend and they were attempting to work things out. Appellant had instructed her to either ignore the subpoena and not appear in court or to lie when she testified. The victim told the jury that she had lied because she was afraid of appellant. She was concerned he would physically hurt her and she also needed his financial help. She admitted at trial that, around the time of the preliminary hearings, she had not told the victim's advocate or the prosecutor that appellant was threatening her and dissuading her not to testify against him.
At trial, the victim explained that she had testified twice in this matter before appellant's trial started. The victim understood that her grant of immunity also applied to any domestic violence she may have committed against appellant.
The victim twice bailed appellant out of jail. The victim testified at trial that appellant had threatened she would be responsible for his bail if she did not help him.
DISCUSSION
I. The Trial Court Did Not Err In Failing To Instruct On Simple Assault In Count 3.
Count 3 involved the incident on August 4, 2016, when appellant choked the victim and she drove herself to the hospital. He contends the trial court prejudicially erred when it failed to instruct the jury in count 3 regarding simple assault, which is a lesser included offense to aggravated assault. He asserts his felony conviction for aggravated assault should be reduced to a misdemeanor.
A. Standard of review.
An appellate court independently reviews whether a trial court erroneously failed to instruct on a lesser included offense. (People v. Trujeque (2015) 61 Cal.4th 227, 271.) In conducting this review, the evidence is viewed in the light most favorable to the defendant, and doubts as to the sufficiency of the evidence are resolved in the defendant's favor. (People v. Wright (2015) 242 Cal.App.4th 1461, 1483.)
B. Background.
After both sides rested, defense counsel requested an instruction on simple assault in count 3. The following day, the court denied this request. According to the court, a reasonable jury would not conclude a simple assault occurred as compared to an assault likely to produce great bodily injury.
With CALCRIM No. 875, the jurors were told appellant was guilty in count 3 if he did an act that, by its nature, "would directly and probably result in the application of force to a person and the force used was likely to produce great bodily injury." The jurors were also told that nobody had to be actually injured by appellant's act, but, if someone was injured, the jury could consider that fact along with all the other evidence in deciding whether appellant committed an assault. "Great bodily injury" was defined as an "injury that is greater than minor or moderate harm."
C. Analysis.
Appellant concedes that sufficient evidence supports his conviction for assault by force likely to produce great bodily injury. He claims, however, the jury could have also determined he only committed simple assault. He notes the victim gave inconsistent versions of events, she repeatedly lied during her preliminary hearing testimony, and she testified at trial under a grant of immunity. He asserts he was not necessarily guilty of the greater offense. He argues the trial court erred by failing to instruct the jury on the lesser included offense of misdemeanor simple assault. We disagree.
"A trial court must instruct on all lesser included offenses supported by substantial evidence. [Citations.] The duty applies whenever there is evidence in the record from which a reasonable jury could conclude the defendant is guilty of the lesser, but not the greater, offense." (People v. Duff (2014) 58 Cal.4th 527, 561.) "Substantial evidence in this context is that which a reasonable jury could find persuasive." (People v. Halvorsen (2007) 42 Cal.4th 379, 414.) However, there is no duty to instruct on a lesser included offense when there is no evidence that the offense was less than that charged. (People v. Wyatt (2012) 55 Cal.4th 694, 702-703.)
"An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another." (§ 240.) An assault is punishable, in part, by imprisonment in the county jail not exceeding six months. (§ 241, subd. (a).) In contrast, when a person commits an assault upon the person of another "by any means of force likely to produce great bodily injury[,]" the person may be punished, in part, by state imprisonment for two, three or four years. (§ 245, subd. (a)(4).) Simple assault is a lesser included offense of aggravated assault. (People v. Buice (1964) 230 Cal.App.2d 324, 345-346; see also People v. McDaniel (2008) 159 Cal.App.4th 736, 747.)
The dispute here, reduced to its essence, concerns how much force appellant applied to the victim. (See People v. Wyatt, supra, 55 Cal.4th at p. 703 [stating this question].) With a charge of assault by means of force likely to produce great bodily injury, the issue is not whether appellant caused serious injury, but whether it was likely great bodily injury would result from the force he used. (People v. McDaniel, supra, 159 Cal.App.4th at p. 748.) In other words, the focus is on the force actually exerted and not the amount of force that could have been used. (Ibid.)
In this matter, the trial evidence overwhelmingly established that appellant committed an assault by force likely to produce great bodily injury. The victim explained that appellant had choked her, which caused her pain and she was unable to breathe. She later coughed up some blood, and she drove herself to the hospital. At the hospital, an officer took photographs of the victim's injuries, which showed redness on the victim's neck and chest. The officer recorded some of the victim's statements at the hospital, and those statements were played at trial. The victim's recorded statements were similar to her trial testimony regarding the nature of her altercation with appellant. In her recorded statements, the victim said appellant had put his arm around her neck and he had choked her.
Although the victim lied during her preliminary hearing testimony, and she did not alert authorities right away that appellant was encouraging her to lie in court, the victim explained to the jury what had motivated her prior inconsistent statements. In any event, the victim's trial testimony was corroborated by her recorded statements to the officer, along with the photographs. This evidence strongly supported the victim's trial testimony that appellant had choked her, and she suffered injuries as a result of appellant's assault. Thus, the evidence demonstrated that appellant applied an amount of force to the victim which was likely to cause great bodily injury. (See People v. McDaniel, supra, 159 Cal.App.4th at p. 748.) Appellant's use of his hands to attack the victim was sufficient to support this charge. (Ibid.)
During closing argument, appellant took the position that the victim was a liar. According to appellant, he was not guilty of any crime.
Based on this record, the trial court was not obligated to instruct on simple assault in count 3. Contrary to appellant's arguments, the jury would not have held a reasonable doubt regarding "the quantum of force" which appellant had used. In other words, substantial evidence did not exist from which a reasonable jury could conclude appellant was guilty of misdemeanor simple assault and not felony assault by force likely to produce great bodily injury. Therefore, the court did not err. (See People v. Duff, supra, 58 Cal.4th at p. 561 [setting standard for instructing on a lesser included offense]; People v. Wyatt, supra, 55 Cal.4th at pp. 702-703 [no duty to instruct on a lesser included offense when there is no evidence that the offense was less than that charged].) Accordingly, appellant's assertions are without merit and this claim fails.
Appellant asserts this was a close case because the jury deliberated over four days before reaching its split verdicts. The jury also requested numerous readbacks of testimony. According to appellant, the trial court's alleged error was prejudicial. Because the trial court did not err, however, we will not address appellant's arguments regarding prejudice.
II. Remand Is Not Warranted For The Trial Court To Exercise Its Sentencing Discretion Under Senate Bill 1393.
At the time of appellant's sentencing in this matter, the trial court was required to impose an additional five-year prison term based on appellant's prior serious felony conviction. (§ 667, former subd. (a)(1).) On September 20, 2018, however, the Governor signed Senate Bill 1393, which amended sections 667 and 1385 to provide sentencing courts with discretion to strike or dismiss this enhancement. (People v. Williams (2019) 37 Cal.App.5th 602, 604.)
We agree with the parties that this amendment applies retroactively to appellant. (People v. Sexton (2019) 37 Cal.App.5th 457, 473.) The parties, however, disagree whether remand is warranted. We agree with respondent that a remand would serve no purpose.
Remand is necessary when the record shows the trial court proceeds with sentencing on the erroneous assumption it lacks discretion. (People v. Brown (2007) 147 Cal.App.4th 1213, 1228.) If, however, the record shows the sentencing court " ' "would not have exercised its discretion even if it believed it could do so, then remand would be an idle act and is not required." ' " (People v. McDaniels (2018) 22 Cal.App.5th 420, 425 (McDaniels).) Certain factors may be germane in assessing whether a trial court is likely to exercise its sentencing discretion in the defendant's favor. Those factors are: (1) the egregious nature of the defendant's crimes; (2) the defendant's recidivism; and (3) the fact that consecutive sentences were imposed. (McDaniels, supra, 22 Cal.App.5th at p. 427.) On the other hand, these factors alone cannot establish what the court's discretionary decision would have been. (Ibid.) If the court imposes the maximum sentence permitted, a remand would be an idle act because the record contains a clear indication the court would not exercise its discretion in the defendant's favor. (Ibid.)
In this matter, the trial court considered and rejected appellant's motion to strike his prior strike conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The court imposed an aggravated sentence against appellant in count 3. In addition, the court imposed consecutive full midterm sentences in counts 4 and 5. When imposing the sentence, the court stated it found appellant's actions "particularly egregious" in that he choked his then pregnant girlfriend. The court noted that appellant also regularly violated court orders.
In counts 6 through 11, appellant was given credit for time served for these misdemeanor convictions.
Based on this sentencing record, the trial court gave a clear indication it would not have exercised its discretion to strike or dismiss the five-year enhancement under section 667, subdivision (a)(1), even if it had the discretion to do so. The court imposed an upper term sentence against appellant, along with additional consecutive terms. The court denied his motion under Romero. As such, remand would be an idle act and is not required. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [denying remand after sentencing court indicated it would not have exercised its discretion to strike a Three Strikes prior even if it had believed it could have done so]; McDaniels, supra, 22 Cal.App.5th at p. 427.) Accordingly, we deny appellant's request for remand for the court to exercise its discretion under Senate Bill 1393.
III. In Light Of Senate Bill 136 We Will Strike Appellant's One-Year Prior Prison Term Enhancement.
In October 2019, the Governor signed Senate Bill 136 into law, which amended section 667.5, subdivision (b). (People v. Lopez (2019) 42 Cal.App.5th 337, 340.) Under this amendment, a one-year prior prison term enhancement will now only apply if a defendant served a prior prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (People v. Lopez, supra, 42 Cal.App.5th at pp. 340-341.)
Appellant was sentenced in this matter in 2018 before Senate Bill 136 was signed into law. The trial court imposed a one-year prior prison term enhancement, which it then stayed pursuant to section 654. Via supplemental briefing, the parties agree, as do we, that this prior prison term enhancement must be stricken because of Senate Bill 136. It is undisputed that appellant's prior prison term was not for a sexually violent offense under Welfare and Institutions Code section 6600, subdivision (b). Accordingly, appellant benefits from this retroactive change in law. (See People v. Lopez, supra, 42 Cal.App.5th at p. 341.) However, because the trial court otherwise imposed the maximum possible sentence against appellant, there is no need to remand this matter for resentencing. (See People v. Buycks (2018) 5 Cal.5th 857, 896, fn. 15.) Instead, we will direct the trial court to prepare an amended abstract of judgment reflecting that this enhancement is stricken. IV. Appellant Has Forfeited His Claims Under Dueñas.
Prior to the supplemental briefing, the parties had disagreed whether it was appropriate for the court to have stayed this enhancement, as opposed to striking it. In light of Senate Bill 136, however, we need not address those alternative arguments.
At sentencing, the trial court imposed a $6,300 restitution fine (§ 1202.4, subd. (b)(1)). The court also imposed a corresponding parole revocation fine (§ 1202.45) in the same amount, which was stayed. Finally, the court imposed a $360 court operations assessment (§ 1465.8, subd. (a)(1)) and a $270 criminal conviction assessment (Gov. Code, § 70373).
Appellant challenges the imposition of these fines and assessments. He asserts he is indigent and the trial court failed to determine his ability to pay. Based primarily on Dueñas, supra, 30 Cal.App.5th 1157, he argues that these assessments and fines should be stricken or stayed unless the prosecution can demonstrate his ability to pay. He contends that, despite a failure to object below, he has not forfeited these issues.
According to the probation report, appellant completed high school and he attended some junior college. He had worked for three years through a union as an iron worker, earning $27 an hour. His health was listed as good. --------
Much has been written about Dueñas in the past year, both from this court and around the state. As such, we need not again recite the facts from Dueñas. (See People v. Lowery (2020) 43 Cal.App.5th 1046, 1052-1053 (Lowery); People v. Aviles (2019) 39 Cal.App.5th 1055, 1063-1065 (Aviles).) Instead, we determine that appellant has forfeited this claim.
In Dueñas, the defendant challenged the assessments and minimum restitution fine imposed against her. (Dueñas, supra, 30 Cal.App.5th at p. 1164.) In this matter, however, appellant made no such challenge and a $6,300 restitution fine was imposed against him, which was well above the minimum of $300. (§ 1202.4, subd. (b)(1).)
This court has previously held a defendant forfeits Dueñas-related claims when a restitution fine well above the minimum is imposed and the defendant fails to object in the trial court. (Lowery, supra, 43 Cal.App.5th at p. 1054; Aviles, supra, 39 Cal.App.5th at pp. 1073-1074.) We disagree an objection would have been futile or that this issue raises a pure question of constitutional law. To the contrary, appellant had a statutory right, and was obligated, to object to the imposition of the restitution fine above the $300 minimum. (§ 1202.4, subd. (c) [inability to pay may be considered when the restitution fine is increased above the minimum].) A factual determination was required regarding his alleged inability to pay. Thus, appellant's objections below would not have been futile under governing law when this sentencing occurred. (Lowery, supra, 43 Cal.App.5th at p. 1054.)
We likewise reach the same conclusion with respect to the assessments. Because appellant failed to object to the restitution fine of $6,300, we likewise reject any assertion he may now complain the trial court imposed the assessments, which total $630. (See People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154; People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033.) These claims are forfeited. (Lowery, supra, 43 Cal.App.5th at p. 1054.) Because appellant has forfeited the issue, we decline to address its merits.
DISPOSITION
We modify the judgment as follows: The one-year enhancement imposed pursuant to Penal Code section 667.5, subdivision (b), is stricken. The trial court is directed to prepare an amended abstract of judgment reflecting that this enhancement is stricken. The court shall have the amended abstract of judgment forwarded to the appropriate authorities. In all other respects, the judgment is affirmed.
LEVY, J. WE CONCUR: HILL, P.J. MEEHAN, J.