Opinion
B295437
08-31-2020
THE PEOPLE, Plaintiff and Respondent, v. BERNIEL IVAN GARRETT, Defendant and Appellant.
Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Charles S. Lee, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. NA107266) APPEAL from a judgment of the Superior Court of Los Angeles County, James D. Otto, Judge. Affirmed as modified. Stephanie L. Gunther, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Idan Ivri and Charles S. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Berniel Ivan Garrett appeals from his conviction for being a felon in possession of a firearm in violation of Penal Code section 29800, subdivision (a)(1), and a one-year prison term enhancement applied under section 667.5, subdivision (b).
Subsequent undesignated statutory citations are to the Penal Code.
The parties agree that Senate Bill No. 136 (2019-2020 Reg. Sess.) applies to the prior prison enhancement. We also agree and strike the enhancement.
We otherwise affirm the conviction. Garrett's argument attacking the admission of a police officer's out-of-court statement as prejudicial error fails because the trial court did not abuse its discretion by admitting the testimony. The officer's testimony was relevant, and its admission was not unduly prejudicial to Garrett's defense.
FACTUAL AND PROCEDURAL BACKGROUND
Garrett was charged with possession of a firearm by a felon (§ 29800, subd. (a)(1)) after shooting himself in the foot inside his apartment. The information further alleged that Garrett had suffered two prior strikes pursuant to sections 667, subdivisions (b)-(j), and 1170.12; that Garrett was ineligible for probation pursuant to section 1203, subdivision (4); and that Garrett had previously served a prior prison term without remaining out of custody for at least five years, within the meaning of section 667.5, subdivision (b).
Garrett admitted the prior conviction allegations. A jury then found Garrett guilty of possession of a firearm by a felon.
The trial court dismissed the strike for sentencing purposes and sentenced Garrett to four years in prison, consisting of the high term of three years plus one year for the prior prison term. The court then suspended execution of the sentence and placed appellant on five years of formal probation, subject to certain terms and conditions. The court also imposed various fines and fees, and credited appellant with 57 days of custody credits, comprising 29 actual custody credits and 28 conduct credits.
Garrett timely appealed his conviction and his sentence enhancement. The facts are as follows.
Garrett and his girlfriend, Jasmine Williams, lived together in an apartment in Long Beach. Williams' friend, Ashanna Roberts, is also involved in this case because she was sleeping in the guest bedroom the night of the incident. At about 2:00 a.m. on August 24, 2017, Roberts testified she was awakened by what she called a "commotion" and voices in the next room. Roberts stayed in her bed until she heard Williams say Roberts' name, but before Williams could explain, Roberts' discovered that "everything already had happened." What she discovered was Garrett's "blood on the floor and that he was shot and he was outside waiting for the police to come."
Roberts saw "a pile of blood" in the living room. Because Williams "didn't want the blood to stay there and like stain the carpet or whatever," she and Williams "cleaned it up" using nearby shirts. Roberts denied she used cleaning products on the carpet. After they were "done cleaning up the blood," Roberts opened the door and saw "about five police officers pointing guns at [her] and [Williams], telling us to put our hands up."
Officers who arrived at the scene spoke with Roberts and testified at trial. As described below, they contradicted Roberts' account. Roberts testified she did not tell officers that she had awakened because she heard a loud gunshot from the living room. She also denied she told officers she saw Garrett standing in the living room with a gunshot wound in his leg.
Officer Manny Tejeda responded to the intersection outside Garrett's apartment to investigate a shooting. When he arrived, he saw Officer Brian Prebanda talking to Garrett. He saw Garrett had a hole in the lower part of his shorts, which appeared to have been from a gunshot. Officer Tejeda also noticed Garrett had a gunshot wound on his right foot. There was also a pool of blood on the pavement, and a trail of blood leading to the front door of Garrett's apartment complex. Officer Tejeda looked through the exterior glass window of the apartment complex and saw blood splatter in the stairwell inside. He entered the apartment complex and followed the blood trail up the stairs, down a second story hallway, to the front of Garrett's apartment.
Officer Tejeda and several other officers entered the apartment to conduct a welfare check and found that Roberts and Williams did not need medical attention. He noticed blood splatter in the middle of the living room and in a hallway.
Officer Tejeda obtained consent to search the apartment. The apartment had the "strong odor" of a chemical cleaning product, like "Clorox or bleach-type cleaning materials." Officers soon discovered several bottles of cleaning supplies.
They also found a handgun in a laundry basket in the bathroom. Officer Tejeda later learned that the gun had been stolen.
Officer Kevin Chang also responded to the intersection outside Garrett's apartment building. He noticed several police cars already parked at the scene. But by the time he arrived, Garrett had already been taken away in an ambulance.
Like Officer Tejeda, Officer Chang followed a blood trail from the intersection into Garrett's apartment complex, and ultimately to Garrett's front door. He discovered Roberts, Williams, and several officers already inside the apartment.
Contrary to her testimony at trial, Roberts told Officer Chang that she and Williams were asleep in the bedroom when she heard a loud gunshot in the living room area. Roberts said she then went back to sleep, but Williams left the bedroom to see what had happened. When Roberts eventually left the bedroom, she discovered Garrett with a gunshot wound in his leg. According to Roberts, Garrett did not say anything to her when he saw that Roberts had noticed his wound. Instead, Roberts said Garrett "ran" out of the apartment.
Officer Chang walked through the apartment after talking to Roberts. He found a spent bullet on the bathroom floor but no bullet casings. As Officer Chang explained during his testimony, revolvers do not eject casings after they are fired. He also saw the .44 magnum Smith and Wesson revolver that had been recovered from the laundry basket. He did not find any ammunition in the apartment.
Garrett took the stand in his own defense and testified as follows. It was his habit to exercise early in the morning, and he woke up at 1:30 a.m. on August 24, 2017, to go for a run. After Garrett left his apartment complex, he "was approached by an individual on a bicycle who had a hoodie on." That person told him to "break yourself," which Garrett understood to mean he was being robbed. The robber reached into his hoodie, but "before he could get the gun to where it's completely facing [him, Garrett] . . . grabbed the barrel . . . and . . . grabbed his wrist." Garrett "stepped into him" in order to "pry the gun away," but, "it went off." Garrett "fell, and when [he] fell [he] had control of the gun." Thus, according to Garrett's account given on the stand, he was wounded outside the apartment building during his struggle with the robber.
Garrett then went back to his apartment "through the same door as fast as [he] could." He knew Roberts was there, and "didn't want to startle anybody," so he called for Williams. He told Williams he had just been shot and asked her for his slippers. Garrett handed her the gun and she came back with the slippers. She wanted to drive him to the hospital, but Garrett said he would not go "[b]ecause [he] told her [he] didn't do anything." So Garrett picked up one of his two cell phones and dialed 9-1-1 in order to call the police. After making the call, Garrett left his apartment and walked out of the building because he "wanted to be in an open area where [he] could be seen." To summarize, under this account, Garrett walked from the intersection after being shot, into his apartment, and then back outside.
Three police cars arrived. Multiple officers then began to question him at once. This flustered Garrett who testified he was attempting to explain he was just robbed outside his building. Instead, these officers just wanted to ask about his tattoos and probation status. One officer then accused Garrett of shooting himself in the foot and filing a false police report.
Garrett never signed a Miranda waiver (Miranda v. Arizona (1966) 384 U.S. 436) and testified that he did not talk to police about the incident again.
Garrett also testified he did not own a gun and only possessed the gun at issue for the brief period after the attempted robbery.
Later, at the hospital, Garrett was read his rights and then transported to the police station. Garrett testified that the police never interviewed him while he was at the hospital.
This crucial fact—whether he was interviewed at the hospital—was disputed by the People below in the form of the rebuttal testimony of Officer Prebanda. Officer Prebanda testified that he initially spoke with Garrett after he responded to the intersection outside Garrett's apartment building. Garrett told the officer that he had been robbed by a Hispanic man on a bicycle while walking to a nearby store. Garrett also told him that he never went back inside his apartment. Although he began walking home after he was shot, he changed his mind and instead walked back to the intersection of 10th Street and Vina Avenue where he called the police.
Contradicting Garrett's testimony, Officer Prebanda further testified he in fact interviewed Garrett at the hospital. There, Garrett told Officer Prebanda he grabbed the revolver away from the robber, who fled away on the bicycle. In this account, Garrett told Officer Prebanda that he did go back to his apartment. And, in this account, Garrett shot himself inside his apartment when he tried to "decock the revolver." This was because "his finger slipped," and the gun went off, shooting himself in the foot. Garrett specifically told Officer Prebanda that the gun was a "[b]lack .44 magnum." Garrett said that after he gave the gun to Williams, he "panicked . . . and he went outside [again] and called the police."
Officer Prebanda further testified that after he listened to Garrett's account, he decided to stay with Garrett at the hospital "until he was given more information by officers before [he] placed [Garrett] under arrest." Specifically, Officer Prebanda testified: "I was told that [Garrett] had possession of the firearm longer than just that evening. I also was told by other officers of a criminal background . . . ." Defense counsel cut off this testimony with an objection, stating, "[o]bjection, hearsay, move to strike." The trial court overruled the objection, and admonished the jury that "it's only coming in, ladies and gentlemen, for the limited purpose of his state of mind as to why he took his next action," i.e., placing Garrett under arrest Officer Prebanda did not testify any further as to the content of what he was told by other officers.
DISCUSSION
A. Senate Bill No. 136 Applies Retroactively to Garrett's One-year Enhancement Under Section 667.5 , Subdivision (b)
Garrett argues that his one-year sentence enhancement under section 667.5, subdivision (b), must be stricken pursuant to Senate Bill No. 136. Because Garrett's sentence is not yet final, and the enhancement was not for a sexually violent offense, as defined in Welfare and Institutions Code section 6600, subdivision (b), the Attorney General agrees, as do we.
At the time of Garrett's sentencing in 2018, section 667.5, subdivision (b), provided for a one-year sentence enhancement for each prior separate prison term served for a felony conviction. (See former § 667.5, subd. (b).) Senate Bill No. 136 restricted the scope of section 667.5, subdivision (b), to prior prison terms that were served "for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code." (Sen. Bill No. 136 (2019-2020 Reg. Sess.), § 1.)
Senate Bill No. 136 was passed in 2019 during the regular legislative session and went into effect on January 1, 2020. (Cal. Const., art. IV, § 8; Gov. Code, § 9600, subd. (a); People v. Camba (1996) 50 Cal.App.4th 857, 865 [" ' "Under the California Constitution, a statute enacted at a regular session of the Legislature generally becomes effective on January 1 of the year following its enactment except where the statute is passed as an urgency measure and becomes effective sooner . . ." ' "].)
In In re Estrada (1965) 63 Cal.2d 740, our Supreme Court held that, absent evidence to the contrary, statutory amendments reducing criminal punishment are presumed to apply to all defendants whose judgments are not yet final on the amendments' operative date. (See People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 307-308 [discussing In re Estrada]; People v. Brown (2012) 54 Cal.4th 314, 323 [same].)
In enacting Senate Bill No. 136, the Legislature gave no indication that it did not intend the bill to apply retroactively. (Sen. Bill No. 136 (2019-2020 Reg. Sess.), § 1.) And, as described above, Senate Bill No. 136 is an ameliorative change in the law that provides for the possibility of a reduced sentence.
We therefore agree with the parties that it is appropriate to infer that the Legislature intended Senate Bill No. 136 to apply to all cases not yet final when the bill took effect on January 1, 2020. (People v. Superior Court (Lara), supra, 4 Cal.5th at p. 308, fn. 5; In re Estrada, supra, 63 Cal.2d at p. 744 ["If the amendatory statute lessening punishment becomes effective prior to the date the judgment of conviction becomes final then, in our opinion, it, and not the old statute in effect when the prohibited act was committed, applies"].)
Because Garrett's appeal is currently pending, his judgment is not yet final, and so, will become final after January 1, 2020. (People v. Vieira (2005) 35 Cal.4th 264, 306; People v. Nasalga (1996) 12 Cal.4th 784, 789, fn. 5.) As a result, we agree Senate Bill No. 136's amendment to section 667.5, subdivision (b), applies retroactively to this case.
The Attorney General also agrees with Garrett that his one-year prior prison term enhancement for fleeing a peace officer (Veh. Code, § 2800.1, subd. (a)) does not qualify as a sexually violent offense within the meaning of Welfare and Institutions Code section 6600, subdivision (b).
We therefore strike Garrett's one-year prior prison term enhancement. (See People v. Lopez (2019) 42 Cal.App.5th 337, 339 [striking enhancements imposed under § 667.5, subd. (b), by retroactive operation of Senate Bill No. 136 and otherwise affirming the judgment].)
B. Admission of Officer Prebanda's Testimony
Garrett argues we must reverse his underlying conviction for possessing a firearm as a convicted felon because the trial court committed prejudicial error in admitting Officer Prebanda's testimony referencing out of court statements by other officers. Specifically, Garrett argues it was prejudicial error for the trial court to admit Officer Prebanda's testimony that he placed Garrett under arrest after "I was told that [Garrett] had possession of the firearm longer than just that evening [and] was told by other officers of a criminal background . . . ."
Garrett argues admitting this testimony was prejudicial error for two reasons. First, the testimony was not relevant. Second, even if relevant, its probative value was substantially outweighed by its risk of prejudice.
We disagree. The testimony was both relevant and not unduly prejudicial to Garrett's defense.
1. Standard of Review
We review a ruling by a trial court on the admissibility of evidence under the deferential abuse of discretion standard. (People v. Waidla (2000) 22 Cal.4th 690, 717-718.) A prejudicial abuse of discretion will be found only if the trial court " 'exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125.)
2. The Trial Court Did Not Abuse Its Discretion by Admitting Officer Prebanda's Testimony
Garrett first argues the court prejudicially abused its discretion in admitting Officer Prebanda's testimony for a nonhearsay purpose because it was irrelevant. If the nonhearsay purpose was to allow Officer Prebanda to explain why he arrested Garrett, that testimony is only relevant if the question of why he arrested Garrett is relevant to the trial in the first place. But, Garrett concludes, the precise question of why Garrett was arrested was never at issue, and, thus, admission of Officer Prebanda's testimony was not relevant as a matter of law.
The Evidence Code defines " '[r]elevant evidence' " as "evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action." (Evid. Code, § 210.) Evidence tends "to prove a fact when 'the evidence offered renders the desired inference more probable than it would be without the evidence.' [Citations.]" (People v. Warner (1969) 270 Cal.App.2d 900, 907-908, italics omitted.) As Garrett acknowledges, however, "[t]he trial court is vested with wide discretion in deciding relevancy." (Id. at p. 908.)
Garrett's second argument is that the trial court abused its discretion by admitting Officer Prebanda's testimony because it was unduly prejudicial under Evidence Code section 352. Because the entire case was about whether Garrett possessed the gun only for the transitory period necessary to dispose of it following his disarming of a purported robber, Officer Prebanda's claim that he was told by other officers that Garrett possessed the gun "longer than just that evening" was particularly prejudicial. The court's limiting instruction, Garret argues, was futile because of the difficulty the jury would have not to misuse the testimony. Garrett concludes that because "there was no other evidence that [he] possessed the firearm for a period of time longer than what he admitted," the prejudicial effect of the testimony outweighed its probative value and its admission was prejudicial abuse of discretion.
We disagree that Officer Prebanda's testimony was irrelevant and we also disagree his testimony was unduly prejudicial.
a. Officer Prebanda's Testimony Was Relevant
The reason why Officer Prebanda's testimony was relevant is due to Garrett's theory of the case. The People called Officer Prebanda as a rebuttal witness to rebut the defense theory that the police had improperly targeted Garrett and had never taken his robbery explanation seriously. Officer Prebanda was called to rebut this theory.
Recall that Garrett testified that when police arrived after he reported the alleged robbery attempt, they immediately accused him of shooting himself, threatened to arrest him, and threatened him with jail time. He further testified that officers placed him in custody after he had been transported to the hospital, without questioning him any further. Finally, he testified he never spoke with Officer Prebanda at the hospital.
Garrett also called his girlfriend's friend, Roberts, to testify in order to bolster this version of how he ended up with a gunshot wound in his foot and in possession of the weapon. Roberts testified that as she and Williams were stepping out of Garrett's apartment, five police officers pointed flashlights and guns at them and immediately began questioning them in a rude and aggressive manner. She stated that she was afraid of the officers and remained afraid at trial. She was afraid at trial that the officers would harm or hurt her. This testimony implicitly accused the officers of repeatedly lying about what she said to them when she was initially interviewed at the scene. For example, she stated she was awakened to a loud gunshot in the living room, and that when she entered the living room, she discovered Garrett with a gunshot wound in his leg.
This is why Officer Prebanda's testimony was relevant. Officer Prebanda was called to rebut Roberts' and Garrett's testimony. His testimony showed the police took Garrett's initial report of being robbed seriously. Garrett was interviewed about the alleged robbery attempt both at the scene and at the hospital. In contrast to Garrett's and Roberts's description of the officers' behavior as rude and intimidating, Officer Prebanda described a casual conversation at the hospital with nurses coming in and out of the room. His partner was outside the room, his gun was not drawn, and Garrett was not in handcuffs nor under arrest. Once Officer Prebanda learned that Garrett had possessed the gun longer than the evening of the supposed robbery, then his perspective changed, and he placed Garrett under arrest.
We emphasize that our standard of review is here solely to review for abuse of discretion. Taken in context, Officer Prebanda's statement was relevant to show both that the police did not initially target Garrett, and to show why they ultimately did. And Officer Prebanda's statement is "relevant" within the definition of the Evidence Code because whether Garrett was improperly targeted and why Garrett was in fact arrested are "disputed fact[s] that [are] of consequence to the determination of the action." (Evid. Code, § 210.)
b. Admission of Officer Prebanda's Testimony Was Not an Abuse of Discretion under Evidence Code Section 352
We also reject Garrett's argument that Officer Prebanda's testimony should have been excluded because it was unduly prejudicial to his defense. We observe two aspects of Officer Prebanda's testimony are potentially prejudicial. First, the officer told the jury he had heard Garrett "had possession of the firearm longer than just that evening." Second, the officer also told the jury he heard Garrett had "a criminal background." Either of those statements are potentially prejudicial in a case involving a felon in possession of a firearm. Nevertheless, we do not find the trial court abused its discretion by admitting Officer Prebanda's testimony.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
A prejudicial abuse of discretion will be found only if the trial court " 'exercised its discretion in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. [Citations.]' [Citation.]" (People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125.)
Garrett's Evidence Code section 352 argument ultimately turns on the claim he makes in his opening brief that "there was no other evidence that [he] possessed the firearm for a period of time longer than what he admitted." Essentially Garrett claims the piece of Officer Prebanda's testimony in which he alluded to Garrett having possessed the gun for longer than the night in question comprised the essence of what the People had to prove, and no direct evidence was introduced that Garrett possessed the gun for longer than the night of the shooting.
Garrett's status as a felon for purposes of the felon in possession charge was never in dispute. Garrett admitted to the prior convictions and the jury was aware of this admission. Thus, Officer Prebanda's testimony was potentially prejudicial only insofar as it bears on the element of possession of the firearm.
But this is incorrect. The People introduced circumstantial evidence of Garrett's guilt from which the jury could reasonably have inferred he possessed the gun for longer than he admitted.
Garrett gave multiple inconsistent accounts of what happened that night. He told Officer Prebanda at the scene that he had been shot while walking to a nearby convenience store and called the police without ever returning to his apartment. But he changed his story later that evening when he told Officer Prebanda at the hospital that he had wrestled the gun away from the robber, taken it back to his apartment, and accidentally shot himself inside the apartment while trying to de-cock the weapon.
The jury may reasonably have inferred that Garrett changed his story to account for (1) the trail of blood leading from his apartment to the location where he met the officers, (2) the gun being found inside his laundry basket, (3) the bullet being found in his bathroom, (4) the blood splatter inside his apartment, (5) the smell of recently-used cleaning products when officers first entered the apartment—suggesting that Roberts and Williams had tried to clean the blood, and (6) Roberts' initial statement to the officers that she had been awakened by a loud gunshot in the living room.
Roberts, who was a friend of Garrett and Williams, also changed her story by the time the trial started. Initially, she told officers at the scene that she was awakened by a loud gunshot in the living room, and that when she entered the living room, she discovered Garrett with a gunshot wound in his leg. But at trial, she denied this entire account.
Garrett's story changed a third time in his trial testimony. He denied ever talking with officers at the hospital—and in doing so effectively retracted his second version of the facts, i.e., that he shot himself after returning to the apartment. Instead, Garrett testified that he was shot on the street, took the gun from the robber, walked back into his apartment, and for some reason went back outside to call the police.
Because this story conflicted with the fact of there being only one blood trail, he explained that he had been out for a jog wearing hightop basketball shoes and tube socks, and the blood remained pooled in his shoes until he went home and changed into slippers. To bolster this testimony, Garrett called a board-certified emergency room physician who opined that a person who was shot in his foot while wearing basketball shoes and athletic socks could walk from the street outside Garrett's building into his second-floor apartment without leaving a blood trail.
The problem with this story was that no basketball shoes nor tube socks with blood or bullet holes were ever found.
The jury may reasonably have inferred from these frequently changing accounts that Garrett and Roberts were attempting to cover up the fact that Garrett had shot himself inside his apartment. Likewise, the jury may reasonably have inferred that they did so because Roberts and Garrett knew that he, as a convicted felon, was not permitted to possess a firearm. The fact that the gun had been stashed inside Garrett's laundry basket and that no one mentioned this to the officers who responded to the scene suggests his possession of the gun was not temporary. As does the fact that he described the gun in detail at the hospital, despite only allegedly possessing it for a few moments.
Officer Prebanda's testimony, then, was not the only evidence the jury heard establishing Garrett's guilt. Because we do not find a miscarriage of justice was caused by admission of this testimony, the trial court did not abuse its discretion by admitting it.
DISPOSITION
The one-year prior prison term enhancement imposed under section 667.5, subdivision (b) is stricken. As modified, the judgment is affirmed. The trial court is directed to prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------
ROTHSCHILD, P. J.
BENDIX, J.