Opinion
F072037
02-22-2018
THE PEOPLE, Plaintiff and Respondent, v. ROBERT LEE GRAHAM, Defendant and Appellant.
Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Louis A. Martinez and Ian Whitney, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. BF154422A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Gary T. Friedman, Judge. Charles M. Bonneau, Jr., under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez, Louis A. Martinez and Ian Whitney, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
This case arose from a sudden shooting in front of the Ink Bar in Bakersfield at approximately 1:00 a.m. on April 13, 2014. The shooting occurred during a seemingly spontaneous physical altercation that lasted, in total, about 30 or 40 seconds. The altercation was between Robert Graham (the defendant) and Troy Stewart, both of whom were milling around outside the Ink Bar. As the altercation erupted between them, with punches thrown on both sides, Graham fired three or four shots. Most, if not all the shots, were fired into the ground. Stewart suffered a bullet wound, apparently from a ricocheting bullet. In addition, a bystander, Halim Johnson, suffered a relatively minor injury, either from a bullet fragment or a fragment of the concrete pavement that shattered from shots fired into the ground.
Graham was convicted of assault with a firearm on Stewart as well as assault with a firearm on Johnson. The jury also found true firearm and great bodily injury enhancements attached to both of the assault counts. The court sentenced Graham to 22 years for the assault on Stewart and associated enhancements. The court imposed a 13-year concurrent term for the assault on Johnson and related enhancements.
Graham challenges his convictions on grounds of evidentiary and instructional error. He argues the court erroneously admitted, for impeachment purposes, evidence of two prior convictions he had suffered. Graham also contends the court erred in instructing the jury on the assault charge concerning Johnson. Specifically, Graham argues the court erred by failing to specify that in order to convict him of this charge, the jury was required to find that a reasonable person in his position would have realized that his actions would result in the application of force to Johnson (rather than only to Stewart). We reject each of these contentions.
Graham also argues there was insufficient evidence to support the jury's true finding on the great bodily injury enhancement related to the assault charge concerning Johnson. Here, we agree with Graham. Accordingly, we will strike the true finding on the great bodily injury enhancement related to Johnson.
Graham next challenges his sentence for the assault on Stewart and associated enhancements. He argues that the trial court abused its discretion in imposing the maximum allowable sentence of 22 years for the assault on Stewart and related enhancements. Graham also requests remand for resentencing in light of a recently enacted amendment to Penal Code section 12022.5, pursuant to which the firearm enhancements at issue in this case were alleged. The recent amendment to this section makes imposition of the firearm enhancement discretionary rather than mandatory, as was previously the case. Graham argues—and the People concede the point—that the amendment is retroactive, necessitating remand for resentencing. We agree with the parties. Given our conclusion that remand for resentencing is necessary in light of the newly enacted amendment, we need not address Graham's contention that the court abused its discretion in imposing a 22-year sentence for the assault on Stewart and related enhancements.
Subsequent statutory references are to Penal Code unless otherwise specified.
We remand the matter for resentencing consistent with this opinion. In all other respects, we affirm the judgment.
FACTS
Overview
As stated above, this case arose from a sudden and momentary physical altercation that took place between Graham and Stewart. Halim Johnson, who described himself as an "associate" of Stewart's, was standing nearby when the altercation occurred. The altercation was also witnessed by Keith Church, who was standing across the street at the time, roughly 90 feet away from the site of the altercation. Church was acquainted with Graham but did not have a high opinion of him.
In an Evidence Code 402 hearing held during the trial, Church testified he had come to the Ink Bar that night specifically looking for Graham, because he had heard from two of his friends that Graham had "sucker-punched" them earlier that night and Church wanted an explanation for that turn of events from Graham.
The facts regarding what actually took place that night were established by a statement Church gave to the police at the scene, Church's eyewitness trial testimony, and Graham's own trial testimony. Silent video footage from the Ink Bar's security cameras was also played for the jury. The evidence showed that Graham was hanging out on the pavement outside the Ink Bar, talking to people. Stewart walked up, took a phone out of his pocket, and then walked away. Stewart, whom Graham had seen before in passing but did not know, again came up to Graham and bumped him. Graham swung at Stewart and the two exchanged blows. Graham pulled out a semiautomatic pistol from his right hip and fired three or four shots into the ground. Church told police at the scene that it looked like Graham fired four shots into the ground. Graham testified that he fired three shots into the ground from a gun at his side, because he thought that Stewart was reaching for a gun in his pants. For his part, Stewart told a paramedic at the scene that he believed a ricocheting bullet hit him.
The security videos shown to the jury depicted the scene outside the Ink Bar before the shooting, the brief and fast-moving altercation between Graham and Stewart, and the aftermath of the altercation and shooting. However, the video images are somewhat "blurry" and do not reveal details such as a weapon in Graham's hand or the trajectories of the shots fired. At trial, the prosecution's theory, in light of the attempted, premeditated murder charge, was that the video footage had captured a muzzle flash by Church's side that appeared to indicate that Graham fired at least one shot at Stewart's leg.
Church, who was the prosecution's principal witness, testified in a way that was more supportive of the prosecution's theory than his initial police statement. Church testified that he thought Graham fired three or four shots but could not precisely identify the number of shots. Church said that initially Graham "started shooting just straight down," tearing up the concrete pavement outside the Ink Bar. Apparently referring to the video of the incident, Church added: "You can see the concrete blowing away and hit[ting] [Stewart]." Church further explained that it appeared to him that Graham just wanted to "scare" Stewart so he would stop "beat[ing] up" on him. However, in a departure from his police statement and perhaps based on the prosecution's interpretation of the video evidence, Church noted that the gun eventually "came up." Church added the caveat: "And I don't know if it was the recoil that brought the gun up and caused the bullet to go into the victim or if [Graham] purposely brought it up, but he held it down at his hip."
Stewart suffered a wound "high in the leg." However, other than the cursory observations of a paramedic at the scene, no medical evidence was presented regarding the actual cause of Stewart's injury, its severity, or any treatment required or provided to treat it. As for the paramedic who attended to Stewart at the scene, he testified that he was not trained in gunshot forensics and could not conclusively say that Stewart's wound was caused by a bullet or bullet fragment. The paramedic also noted there was no exit wound on Stewart's body.
Halim Johnson, who was standing about 15 feet away, also felt some pain in his leg. Johnson suffered an injury to his shin in the form of two small wounds. Church, who actually examined Johnson's leg at the scene, testified: "Looked like [there was an injury] - it was very minor, and it was in the leg, and there was no blood coming out of it, so I figured [Johnson] could take care of himself." Church described the wounds as "grazing" and too "wide" to have been caused by a bullet. The following evening, Johnson went to the emergency room, where the wounds were "[c]leaned," i.e., they were "washed" and "sterilized." A police officer who saw the wounds at the emergency room testified they possibly represented entry-and-exit wounds caused by a bullet "fragment" but no medical testimony was introduced to confirm the officer's suspicion. In his closing argument, the prosecutor acknowledged that it was unclear whether Johnson's injury was caused by a bullet fragment, a piece of concrete, or something else.
Stewart and Johnson did not cooperate with law enforcement's investigation into the shooting incident or the subsequent judicial process. Stewart refused to testify at trial. Johnson, despite a grant of use immunity, testified he had no memory of the incident, could not identify himself on the surveillance videos, and could not remember how, when, or where he had sustained his leg injury.
Keith Church's Statement to Police at the Scene
As stated above, Church gave a statement to the police at the scene. A redacted version of the statement was played for the jury. In the statement, Church said he was standing across the street from the Ink Bar on the night in question. Graham was out front talking to everybody. Church stated: "[Graham's] outside and some other fool walks up.[] Turns out to be the guy [Stewart]. Walks up [and] they get into a squabble." Church continued: "I watch them, they get into a fight. The dude uh [Stewart] gets 'em good, wobbles 'em ... [Graham] takes out his gun." Church added: "What it looked like is [Graham] shot into the ground." Church concluded: "I heard four shots." The police officer conducting the interview asked Church: "You were across the street but I'm gonna ask anyway. Did you by chance see the gun? We can't see it on the video." Church responded that the gun was a black semiautomatic.
Church explained, in an Evidence Code section 402 hearing during his testimony, that he referred to Stewart as a "fool" because Church "was angry" that "something that stupid had happened" because Stewart got in a fight.
Church explained that he did not initially realize that Stewart had been shot. In fact, Church was looking at Johnson's leg when another person mentioned that "somebody else got shot." Upon hearing that, Church "ran over to that guy" who had been shot. As for Johnson's injury, Church stated, "I checked his leg out" but "he only had a grazing on his shin, left shin." Church further noted, "[i]t didn't look like a bullet[,] it was wide. ... [L]ike somethin' else hit 'em," such as debris from the concrete pavement.
Trial testimony of Keith Church
At the time of the shooting, Church was on his phone, standing on the sidewalk across the street from the Ink Bar's front entrance. Church saw Stewart walk up to Graham and get into an altercation. At one point, Stewart took his hat off and threw it on the ground. Church described what happened: "It looked more like a shoulder-shove match to me. And then [Graham] punched him. The other guy socked [Graham] pretty good, rocked him. [Graham] hobble-stepped and then pulled a gun out and started shooting." After Graham started shooting, Stewart continued to "hit him," perhaps reflexively to push Graham, who was "real close" to him, away. The gun that Graham pulled out was "a black semiautomatic." He fired "three or four" shots. Church described the shooting:
"Initially, [Graham] started shooting just straight down [at the concrete] ... [¶] ... [¶] ... It was the weirdest thing. It was more of a 'I don't want to get beat up.' My interpretation was more of 'I don't want to get beat up anymore. I'm going to start shooting and scare you.' And I don't know if it was the recoil that brought the gun up and caused the bullet to go into the victim or if he purposefully brought it up, but he ... [¶] [¶] ... started shooting here, and [the gun] just came up ... [¶] ... [¶]... [y]ou can see the concrete blowing away and hit the guy. And there was a scuffle, as I said, as the guy hit him. The other guy ran into the bar, so did everyone else in front of the bar. And then [Graham] put the gun away... grabbed his beanie [with both hands] and ran to his car like he was getting shot at or something, [and drove off]."When the shooting occurred, Stewart was standing directly in front of a glass window, the bottom of which was about "18 to 24" inches off the ground. The glass window was intact after the shooting but part of the concrete pavement in front of the bar was shattered.
After the shooting, Church called 911 "multiple times" and ran across the street to see what had happened. He first came across Johnson, who lifted up his pant leg. Church explained: "Looked like [an injury]—it was very minor, and it was in the leg, and there was no blood coming out of it, so I figured he could take care of himself." Church said he "needed to find out" whether Stewart had been shot or otherwise hurt, so when Stewart "[came] walking southbound on K street in front of Ink," Church "stop[ped] him." Church noted: "I don't think [Stewart] realized he was shot until a little bit after the fact." Church, who was more focused on the situation, testified: "I put [Stewart] down right in front of the door and pulled his pants down to where I could see the wound, and he was gushing blood out of a hole, so I started applying pressure and got rags to see what we could do and shoved my finger in it to stop it from bleeding." Stewart "wasn't cooperative at first," but ultimately understood "the realm" and "gravity of the situation" and "just stayed there until the paramedics came." Nevertheless, in attending to Stewart, Church repeatedly had to "pull [Stewart's] hand out of the way because he kept trying to do his own thing." Stewart's injury was in his left leg, "high in the leg."
For their part, the paramedics "took a while to show up." When they finally arrived, "[t]hey were kind of blasé about [the situation]," to the point that they "wouldn't take over" from Church. In short, the paramedics acted like there was "[no] real need to do anything."
Church did not see a gun on Stewart either during the fight or afterwards. When the police arrived, Church "was the first person they saw in front of the bar with the guy on the ground." Church told the police that "Robert Graham" was the shooter. As for Johnson, Church said: "After I first initially made contact with him, I never looked for him again, 'cause his [injury] was nowhere near as bad as [Stewart's]" and he was walking around.
At the time of trial, Stewart was in prison. The prosecutor had Stewart brought into the courtroom so Church could identify him. Church was initially unable to recognize him. Church eventually identified Stewart, based on his tattoos, as the man he had assisted on the night of the shooting.
Testimony of Tyler Kahler , Paramedic
Tyler Kahler, a paramedic for Hall Ambulance, testified that he attended to Stewart at the scene of the shooting. He spent about 14 minutes at the scene with Stewart, who was conscious, "alert and oriented," the entire time. Kahler testified Stewart's wound was above and to the left of, the pelvis, and there was no exit wound. Kahler estimated that Stewart would have lost between a tenth and a fifth of a liter of blood as a result of the wound. Stewart was transported to Kern Medical Center (KMC). Kahler could not say what determination was made at KMC regarding the cause of the wound, i.e., whether a bullet or bullet fragment was involved. Nor did Kahler have any idea as to what treatment was required or provided at KMC. Kahler did testify, however, that Stewart told him at the scene that he believed he was hit by a ricochet shot (presumably a bullet that ricocheted off the ground).
Testimony of Jacob Freeborn
Jacob Freeborn, a deputy with the Kern County Sheriff's Office testified about his contact with Graham on the night of the shooting. Around 2:00 a.m. that night, Freeborn saw a car speed through an intersection, running a red light. Freeborn effected a traffic stop on the car, the driver of which was Graham. Freeborn was aware that Graham was wanted by the Bakersfield Police Department, so he detained him and subsequently turned him over to the custody of the Bakersfield Police Department.
Testimony of Robert Graham
Graham testified that he was at the Ink Bar on the night of April 13, 2014. Shortly after 1:00 a.m., he went outside. He was standing by the front door talking to people, when Stewart approached and intentionally "bumped" into him, just as Graham and Johnson were shaking hands and getting acquainted. Graham explained that "[Stewart] could have went around or walked a different direction or something, but he ran straight into me, bumped me kind of hard, and I just asked what the fuck is your problem?" Graham continued: "And then [Stewart] said you don't know who the fuck I am?" Graham added: "I'm like no, I don't care who you are. And then he walked off." Graham "thought it was over" and "was gonna get back to talking to [Johnson]," but Stewart "turned around and came right back" and got "in [Graham's] face."
Stewart told Graham, "They call me Little Papoose from the Eastside," adding, "You gonna have to give what's in your pocket." Stewart then acted like he was going to do something, so Graham swung at him with his left hand. Stewart hit back, then took his cap off and threw it on the ground. Graham saw him "going up under his shirt," so Graham backed up. Graham could see "the blackness" of the butt of a gun in Stewart's pants, so Graham pulled his own gun "from the right" and "shot three times in the ground." Graham said his hand "was ... at [his] side" when he shot at the ground.
Graham stated: "I didn't wanna kill him. I didn't wanna shoot nobody. I just wanted him to stop reaching for his. And he let it go." Graham was not aware that anyone had been hurt and remained concerned that Stewart "still had a gun." Graham "didn't want [Stewart] to ... start shooting," so he hunched over and "ran with [his] beanie down," to get away. Graham drove home, switched cars, and drove around; he "took the gun apart" and threw the pieces away in various places. He felt "stupid, like scared."
Graham was arrested that same night and taken to jail. The next day, Bakersfield Police Department officers, Detectives Cegielski and Moore, interrogated him. Graham described what he told Cegielski, the principal interrogating officer: "I told him [Stewart] bumped into me kinda hard and I asked him what the fuck you - what's wrong with him. And he jumped into some kind of fighting stance after he came back, like turned around, and he reached for something - he was reaching for something, and I pulled out my gun and shot three times in the ground."
During his interrogation, Graham further told the officers: "After I fired, I jumped in my car and I went up Oleander, headed toward Brundage, and I discarded a part of the top of the gun. And then I drove out to Elephant Bar, go past Elephant Bar a little bit, and then I threw the rest of the gun out over there in the lake or something." When Graham gave this statement to Detectives Cegielski and Moore, he knew the incident had been captured on video but had not yet seen any of the videos.
Detective Cegielski testified that after initially making a few contradictory statements, Graham told the officers that he had a gun and that he fired it. Cegielski agreed with defense counsel's statement that Graham had told the officers that "he had a gun, about the two subjects, about the fact that he feared for his safety, the fact that he removed his firearm, the fact of the kind of firearm it was, [and] the fact that he fired his firearm." Cegielski also testified that Graham had told him that he drove southbound on Oleander Avenue towards Brundage Lane, disassembled his gun, and "began to throw the pieces down the storm drains" and "at the Riverlakes Park near a pump."
On cross-examination, the prosecutor played the video of the incident and asked Graham whether Graham could see, near Graham's right hand, a "muzzle flash" that was directed towards Stewart's leg. Graham said he was holding the gun in his right hand but rejected the contention that the video showed a "muzzle flash" directed at Stewart's leg. Graham said, "I know I didn't shoot him," because both parties—himself and Stewart—continued to throw punches after the shooting.
PROCEDURAL HISTORY
Graham was charged by information with the attempted, premeditated murder of Stewart; the attempted, premeditated murder of Halim Johnson; being a felon in possession of a firearm; assault with a firearm on Stewart; assault with a firearm on Johnson; possession of cocaine; and misdemeanor driving under the influence.
The attempted murder charge related to Halim Johnson was subsequently dismissed on motion of the People. Also on motion of the People, the cocaine possession charge was downgraded to a misdemeanor. Graham then pleaded no contest to the charges of felon in possession of a firearm, misdemeanor possession of cocaine, and misdemeanor driving under the influence. (§ 29800, subd. (a)(1); Health & Saf. Code, § 11350, subd. (a); Veh. Code, § 23152, subd. (a).) The case proceeded to jury trial on the charges of attempted, premeditated murder of Stewart; assault with a firearm on Stewart; and assault with a firearm on Johnson. (§§ 664/187, subd. (a), 189, 245, subd. (b).)
The jury did not convict Graham of attempted, premeditated murder of Stewart or the lesser-included offense of attempted voluntary manslaughter. Graham was convicted only of assault with a firearm on Stewart and assault with a firearm on Johnson. (§ 245, subd. (b).) The assault charges as to both Stewart and Johnson were accompanied by firearm and great bodily injury enhancements. The jury found the firearm and great bodily injury enhancements associated with each assault charge to be true. (§§ 12022.5, subd. (a), 12022.7, subd. (a).)
The jury acquitted Graham of attempted premeditated murder but hung on the lesser-included offense of attempted voluntary manslaughter (whereupon the court declared a mistrial as to the latter charge). The lesser-included charge of attempted voluntary manslaughter was subsequently dismissed on motion of the People.
The court sentenced Graham to 22 years for the charges and enhancements related to Stewart: the upper term of nine years for the substantive offense of assault with a firearm, the upper term of 10 years for the associated firearm enhancement, and three years for the associated great bodily injury enhancement. A concurrent sentence of 13 years was imposed for the charges and enhancements related to Johnson.
After the sentencing, the prosecutor noted that even if Graham had been convicted of attempted voluntary manslaughter of Stewart, "that upper term would be 24 years," not much more than the 22-year sentence he received for assault with a firearm on Stewart.
DISCUSSION
I. GREAT BODILY INJURY ENHANCEMENT FOR HALIM JOHNSON'S INJURY
Graham contends that the great bodily injury enhancement related to Halim Johnson's injury is not supported by sufficient evidence. We agree.
When considering the sufficiency of the evidence to support a conviction or enhancement on appeal, we apply the substantial evidence standard of review, viewing the evidence in the light most favorable to the judgment to determine whether a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. (People v. Thompson (2010) 49 Cal.4th 79, 113; People v. Halvorsen (2007) 42 Cal.4th 379, 419.)
"Great bodily injury 'means a significant or substantial physical injury.'" (People v. Cross (2008) 45 Cal.4th 58, 63; § 12022.7, subd. (f).) Here, the evidence showed that Johnson was standing 15 feet away from the spot where Graham and Stewart were fighting outside the Ink Bar. Johnson did not describe his injury or explain how he sustained it. As to the treatment provided when he went to the hospital the evening after the shooting incident, Johnson testified that his wounds were simply "cleaned." A photograph of the injuries taken at the hospital was shown to the jury; the photograph shows two small, seemingly superficial wounds.
Other than the photograph, the most detailed evidence about Johnson's injury was provided by Keith Church. Church described the injury both in a police statement he provided at the scene and in his trial testimony. At the scene, Church told the police: "I checked [Johnson's] leg out" but "he only had a grazing on his shin, left shin." Church further noted, "[i]t didn't look like a bullet[,] it was wide.... [L]ike somethin' else hit 'em," such as "a broken piece" of concrete or other debris.
At trial, Church similarly explained that Johnson's injury was minor and not even bleeding: "it was very minor, and it was in the leg, and there was no blood coming out of it, so I figured [Johnson] could take care of himself." Indeed, Church noted that given the minor nature of the injury and the fact that Johnson was fully able to walk around, Church paid no further mind to Johnson's injury and "never looked for him again."
The only other evidence related to Johnson's injury was the testimony of Officer Matthew Aquino, who saw it when Johnson sought treatment at an emergency room the evening after the Ink Bar incident occurred. Aquino testified that he "suspected" Johnson's wounds were entry and exit wounds caused by a bullet fragment. However, Aquino cautioned, "I don't specialize in entry and exit wounds" and acknowledged he was simply stating his lay "belief." Aquino's conclusion was based on how the wound appeared to him, rather than on any medical assessment or evidence.
At closing argument, the prosecutor relied entirely on Aquino's testimony to argue that Johnson's injury was an "entry and exit wound." However, even the prosecutor acknowledged that it was unclear whether the injury was caused by a bullet fragment, a piece of concrete, or something else.
We are mindful that, in reviewing sufficiency of the evidence, the court "must resolve the issue in light of the whole record - i.e., the entire picture ... put before the jury and may not limit [its] appraisal to isolated bits of evidence." (People v. Johnson (1980) 26 Cal.3d 557, 576; People v. Bassett (1968) 69 Cal.2d 122, 139 [in a criminal case, "'the trier of fact must be reasonably persuaded to a near certainty,'" and "'must therefore have reasonably rejected all that undermines confidence'"].) Here, Church testified that the wound was a superficial "grazing" and was too "wide" to have been caused by a bullet. The wound was not bleeding when inflicted and did not impair Johnson, even momentarily, from walking around. Although Officer Aquino testified the injury "looked like" an in-and-out wound, the prosecution did not present any medical evidence to show that Johnson's shin was actually pierced. Furthermore, the only treatment provided was cleaning of the wound, evidently to prevent infection. Finally, the prosecutor conceded that the actual cause of the injury—i.e., whether Johnson was hit by a bullet fragment, a piece of concrete, or other debris—was unknown.
This record does not reasonably support a finding, beyond a reasonable doubt, that Johnson suffered a great bodily injury, i.e., a significant or substantial physical injury. (See People v. Bassett, supra, 69 Cal.2d at pp. 138-139 [substantial evidence "'cannot be deemed synonymous with "any" evidence'"; rather it is "evidence that reasonably inspires confidence and is of 'solid value'"]; People v. Kraft (2000) 23 Cal.4th 978, 1053 [accord].) Accordingly, we will strike the true finding on the great bodily injury enhancement attached to Graham's conviction for assault with a firearm on Johnson.
II. INSTRUCTION ON CHARGE OF ASSAULT WITH A FIREARM ON HALIM JOHNSON
Graham next argues that the trial court prejudicially erred in instructing the jury with respect to the charge of assault with a firearm on Halim Johnson, requiring reversal of his conviction on this charge. While acknowledging that "Johnson was standing about fifteen feet from [Graham] when the shots were fired," Graham argues that "the jury must be clearly instructed that any conviction on the count charging assault on Johnson must be based on evidence that his injury, not the injury to Troy Stewart, was a natural and probable consequence of the defendant's actions." We reject Graham's claim of prejudicial instructional error.
Background
Here, Graham was charged in count 2 with assault with a firearm on Stewart and in count 3 with assault with a firearm on Johnson. As to these counts, the court instructed the jury pursuant to CALCRIM No. 875:
"The defendant is charged in Counts 2 and 3 with assault with a semiautomatic firearm, in violation of Penal Code Section 245(b).
"To prove that the defendant is guilty of this crime the People must prove that:
"One, the defendant did an act with a semiautomatic firearm that by its nature would directly and probably result in the application of force to a person;
"Two, the defendant did that [act] willfully;
"Third, when the defendant acted, he was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone;
"And fourth, when the defendant acted, he had the present ability to apply force with a semiautomatic firearm to a person;
"And, fifth, the defendant did not act in self-defense;
"Someone commits an act willfully when he or she does it willingly or on purpose. It is not required that he or she intend to break the law, hurt someone else, or gain any advantage.
"The People are not required to prove that the defendant actually intended to use force against someone when he acted. No one needs to actually have been injured by defendant's act, but if someone was injured, you may consider that fact along with all of the other evidence in deciding whether the defendant committed an assault and, if so, what kind of assault it was."
Regarding counts 2 and 3, the charges of assault with a firearm on Stewart and Johnson respectively, the prosecutor argued in closing:
"That brings us to Counts 2 and 3. That's assault with a semiautomatic firearm on both Mr. Stewart and Mr. Halim Johnson.
"Here are the elements. I know there are a lot of them. The actual jury instruction is even more complicated than this. Most of these are self-evident, but there are a couple of them I want to talk to you about.
"The first is that obviously Mr. Johnson was not the intended target here. However, this is a general intent crime. But for the firing of the weapon, Mr. Halim Johnson doesn't get hurt. That's why Mr. Johnson is a victim in this case and that's why Mr. Graham is guilty of an assault with a semiautomatic firearm on Mr. Johnson. [¶] ... [¶]
"If you believe he never really meant to shoot Mr. Stewart, he would still be guilty of those assault with a semiautomatic firearm charges in Counts 2 and 3. Even if he never fired his weapon, all that is necessary is that he did an act with a semiautomatic firearm and was aware the act could apply force to someone.
"Actually hitting someone with it, actually firing it, is not necessary to be guilty of the 245(b) charges, the assault with a semiautomatic firearm. I don't have to prove to you that he actually intended to use force. It's just he had the ability to apply force to someone. And I don't even have to prove to you that someone was actually injured for him to be guilty of those two charges. [¶] ... [¶]
"[T]here should be no question in your minds at all, beyond a shadow of doubt, that he's guilty of the assault with a semiautomatic
firearm charges, again in Counts 2 and 3. He used a gun, he fired it, and because he used it, he injured two different men.
"And the video shows, again, that this isn't in self-defense. He was not acting as a reasonable person would."
Analysis
Graham points out that the Bench Notes to CALCRIM 875 provide (based on People v. Velasquez (2012) 211 Cal.App.4th 1170, 1176-1177 (Velasquez)): "If the charging document names more than one victim, modification of this instruction may be necessary to clarify that each victim must have been subject to the application of force." Relying on Velasquez, Graham contends that the trial court committed reversible error because, in instructing the jury as to counts 2 and 3, the court failed to clarify that both Stewart and Johnson must have been subject to the application of force.
Velasquez explains that, in some instances, it is necessary to modify CALCRIM No. 875 to avoid juror confusion:
"While ... CALCRIM No. 875 is a correct statement of the law, the potential for juror confusion is obvious. One cannot assault John Doe, when the defendant aimed at Tom Smith, if John Doe was standing hundreds of feet behind the defendant when the defendant shot the firearm (assuming the defendant's aim was reasonably accurate, but did not result in injury to Tom Smith). Tom Smith was the victim of an assault because the act in this hypothetical would directly and probably result in the application of force to him. But John Doe, who was hundreds of feet away in the opposite direction, unthreatened and unharmed, was not a victim of assault because the defendant did not commit an act that 'by its nature would directly and probably result in application of force' to John Doe." (Velasquez, supra, 211 Cal.App.4th at p. 1176.)
The defendant in Velasquez fired a handgun 10 times at the garage of a residence occupied by a family of five. At the time of the shooting, one member of the family (Maria) was in the garage, while the others were in other rooms of the house. The defendant was convicted of five counts of assault with a firearm, one for each of the five people present in the residence. (Velasquez, supra, 211 Cal.App.4th at p. 1175.) On appeal, the defendant challenged four of his convictions on the basis of instructional error. Specifically, he alleged that the standard version of CALCRIM No. 875 created juror confusion under the facts applicable to his case, such that the jury could have convicted him on four of five counts of assault with a firearm without proof, beyond a reasonable doubt, of each element of the offense. The Velasquez court agreed and reversed the defendant's convictions on all counts of assault with a firearm except the one that related to Maria. (Velasquez, supra, at p. 1178.)
The Velasquez court explained its reasoning:
"The jury could have determined that when Velasquez shot at the residence, the result was a direct and probable application of force to Maria because she was located in the area at which the shots were aimed. The jury also could have concluded that none of the other members of the household were in any danger of being hit by a bullet because of their location in the residence. Indeed, there was evidence to support such a conclusion, although not necessarily compelling the conclusion. Nonetheless, by following the letter of the instruction, the jury may have found Velasquez guilty of assaulting the other four individuals because firing the shots resulted in a direct and probable application of force to a person (Maria). If so, Velasquez was convicted of four counts of assault, even though the prosecution failed to prove beyond a reasonable doubt the elements of the offense." (Velasquez, supra, 211 Cal.App.4th at p. 1777.)Velasquez concluded that because "no one explained to the jury that it must conclude beyond a reasonable doubt that the bullets fired by Velasquez would directly and probably result in the application of force to the victim named in each count," the instructional error was prejudicial under Chapman v. California (1967) 386 U.S. 18, 24, warranting reversal of four of the five counts of assault with a firearm. (Velasquez, supra, 211 Cal.App.4th at p. 1777.)
The facts of the present case are distinguishable from those of Velasquez. The evidence here shows that Graham was talking and shaking hands with Johnson immediately before he got into the altercation with Stewart, and, further, that Johnson was standing only about 15 feet away from the site of the shooting. Moreover, here the prosecutor argued that although "Johnson was not the intended target," but for "the firing of the weapon, [Johnson] doesn't get hurt." The prosecutor added, "[t]hat's why [Johnson] is a victim in this case and that's why [Graham] is guilty of an assault with a semiautomatic firearm on [Johnson]." The prosecutor concluded, "there should be no question in your minds at all, beyond a shadow of doubt, that he's guilty of the assault with a semiautomatic firearm charges, again in Counts 2 and 3. He used a gun, he fired it, and because he used it, he injured two different men." In light of the instant record, any error as to the instruction on the charge of assault with a firearm on Halim Johnson was harmless beyond a reasonable doubt.
The People assert that this issue was forfeited for purposes of appeal on account of defense counsel's failure to object to the instruction, as given, in the trial court. We have nonetheless addressed the issue because of its potential bearing on Graham's substantial rights. (See Velasquez, supra, 211 Cal.App.4th at p. 1177, fn. 5.)
III. IMPEACHMENT OF GRAHAM WITH TWO PRIOR FELONY CONVICTIONS
The prosecution moved in limine to admit, as impeachment evidence in the event that Graham testified, five prior convictions suffered by Graham. The defense moved in limine to exclude all of Graham's prior convictions; in the alternative, the defense requested the court to limit the prosecution to introducing one sanitized prior conviction for impeachment purposes. At the hearing on the parties' motions, the court ruled that two of Graham's prior convictions were inadmissible on grounds of remoteness and a third one was inadmissible because it was a misdemeanor. The court, however, permitted the prosecution to introduce, as impeachment evidence, (1) a 2007 felony conviction, under Vehicle Code section 2800.2, for evading an officer with willful or wanton disregard for safety, and (2) a 2001 conviction, under section 666, for petty theft with a prior. Since these convictions were for nonviolent offenses, defense counsel withdrew her prior request to sanitize any admissible convictions; indeed counsel stated she did not want these particular convictions to be sanitized. At trial, Graham admitted on direct examination, that he had suffered the two above-mentioned convictions for evading an officer and petty theft with a prior. Graham now argues that admission of the two prior convictions constitutes reversible error. Assuming his claim was properly preserved for review, we reject it.
Admission of 2007 Prior Conviction for Evading an Officer
In admitting a prior felony conviction for impeachment purposes, the court must first find that the conviction involves moral turpitude and then further find that the conviction is admissible under Evidence Code section 352. (People v. Castro (1985) 38 Cal.3d 301, 316; People v. Coad (1986) 181 Cal.App.3d 1094, 1109.) Graham does not dispute that his prior conviction for evading an officer involved moral turpitude. Rather, Graham argues that in admitting this conviction as impeachment evidence, the trial court abused its discretion under Evidence Code section 352.
"When determining whether to admit a prior conviction for impeachment purposes, the court should consider, among other factors, whether it reflects on the witness's honesty or veracity, whether it is near or remote in time, whether it is for the same or similar conduct as the charged offense, and what effect its admission would have on the defendant's decision to testify." (People v. Clark (2011) 52 Cal.4th 856, 931.) Graham contends the trial court abused its discretion in admitting his 2007 conviction for felony evading because this conviction was similar to "evidence used to convict [him] in the current case" and was remote. Graham points to evidence introduced at trial showing he "was arrested miles from the site of the shooting, almost two hours later" and to the fact that "[t]he jury was instructed on flight as evidence of consciousness of guilt." He then simply asserts that the court should have excluded the 2007 conviction because "[e]vading a peace officer has similar elements to the flight evidence used to convict [him] in the current case."
Here, in the first place, the instant charges of assault with a firearm are completely distinct from the offense of felony evading. Furthermore, in light of the nature of the charges, the most significant evidence presented to the jury was related to the shooting itself. Graham's assertion that his 2007 conviction for felony evading should have been excluded because it was "similar" to evidence of his flight after the instant shooting is therefore unavailing. Nor has Graham demonstrated that his 2007 conviction, which was "eight years old" at the time of trial, was rendered inadmissible on grounds of remoteness. (See People v. Pitts (1990) 223 Cal.App.3d 1547, 1554 [use of 10 years as presumptive cut-off in assessing remoteness was proper].) Accordingly, we reject Graham's contention that the trial court's decision to admit evidence of the 2007 conviction for felony evading was an abuse of discretion under Evidence Code section 352.
Admission of 2001 Prior Conviction for Petty Theft with a Prior
Graham further argues that the trial court's decision to admit evidence of his 2001 conviction for petty theft with a prior was an abuse of discretion under Evidence Code section 352. Graham contends the trial court should have considered his 2001 conviction for petty theft with a prior as a misdemeanor because the offense of petty theft with a prior became a misdemeanor with the enactment of Proposition 47. Although Graham acknowledges that a "moral turpitude misdemeanor prior conviction may be allowable for impeachment," he nonetheless contends that had the trial court counted his 2001 conviction as a misdemeanor, "it is unlikely," especially in view of its remoteness, that the court would have admitted it for impeachment purposes. (See People v. Wheeler (1992) 4 Cal.4th 284, 295-296 [misdemeanors involving moral turpitude are admissible for impeachment but are generally less forceful indicators of immoral character than felonies].)
The record does not reflect that Graham had filed a petition for reclassification under Proposition 47 by the time of trial.
We need not address whether the trial court abused its discretion in admitting evidence of the 2001 conviction for petty theft with a prior, since admission of this evidence was, in any event, harmless. In other words, it is not reasonably probable that the outcome at trial would have been more favorable to Graham, had evidence of his 2001 conviction for petty theft with a prior been excluded.
Graham's theory of defense in this case was that he acted in self-defense upon spotting a gun tucked into Stewart's pocket or waistband. We recognize that this defense hinged largely on Graham's credibility and that admission of his prior felony conviction for petty theft with a prior could potentially have undermined his credibility. However, here the potential for prejudice arising from admission of this prior conviction was minimal.
First, this conviction was less serious than the charged offenses; it was also less serious than Graham's 2001 conviction for evading an officer, which, as explained above, was properly admitted. (See People v. Ewoldt (1994) 7 Cal.4th 380, 408 [noting that evidence of uncharged conduct had "minimal" prejudicial effect when evidence was no more inflammatory than testimony regarding the charged offenses].) Second, the record included evidence showing that Graham had served time in prison in the late 1980s and 1990s, before he suffered his 2001 and 2007 prior convictions. Indeed Graham testified that he had obtained gang-related tattoos during these long-ago prison stints, for protection purposes. Evidence that Graham had been in prison on a number of occasions dating back to the late 1980s served to blunt any marginal prejudice associated with his 2001 conviction for petty theft with a prior. For that matter, the record also included evidence that Graham had a long history of police contacts. Finally, Graham's credibility was damaged for other reasons as well. For example, the prosecutor effectively highlighted, in closing argument, inconsistencies in Graham's trial testimony as well as inconsistencies between his testimony and his prior statements to law enforcement.
In light of the record as a whole, we conclude that any error in admitting evidence of Graham's 2001 conviction for petty theft with a prior was harmless.
IV. ADMISSION OF EVIDENCE OF THREATS AGAINST KEITH CHURCH
Graham next challenges the trial court's decision to admit evidence, during the People's rebuttal case, of various threats received by Keith Church over "three to four" months following the shooting. The People had argued that Graham put his credibility at issue by testifying in this matter, which made the threats received by Church relevant for impeachment purposes. Specifically, the People had argued that admission of evidence showing that Church testified despite receiving the threats would bolster his credibility and, in turn, undercut Graham's credibility, with regard to any conflicts between their respective testimony. The court agreed and admitted the evidence.
Graham now argues that Church's testimony regarding the threats was inadmissible because "Church never expressed any fear resulting from the threats" and because "his testimony was not influenced in any way" by the threats. Graham further contends that since his "own credibility was at stake," in that "his testimony was the only basis for a claim of self-defense," he was "prejudiced by the suggestion that he had orchestrated threats against a prosecution witness." Finally, Graham contends that the prejudice arising from admission of evidence of the threats against Church was "cumulative" to the prejudice related to any "error in admitting evidence of [Graham's] prior convictions." We reject Graham's contention that admission of evidence of the threats against Church was reversible error.
The trial court admitted evidence of the threats against Church after conducting an Evidence Code section 402 hearing. At the hearing, Church testified he believed Graham had orchestrated the threats as a "scare tactic," but also indicated that he did not take the threats particularly seriously. Church explained why he was unfazed: "I don't think of [Graham] as a tough person. I don't think of anyone he knows as having a backbone." Church also noted, "I don't get scared away easy." Church concluded that the threats did not influence his decision to testify in any way: "I wanted to testify the minute [the shooting incident] happened. [The threats were] not going to make me want to or not want to [do it]. It's just how it is. It's the right thing to do." After the hearing, the trial court ruled: "We have to get the evidence to the jury, let them decide which of these gentlemen [Graham and Church] is credible or more credible than the other." The court added: "I think this goes - it's really a personality issue that the jury needs to see the whole picture to draw what they feel would be the appropriate conclusion."
Following the court's ruling, Church testified in the People's rebuttal case. Church explained that he received some threats that were communicated in a "stupid fashion" to scare him away from testifying in this matter. For instance, a rock was thrown through Church's window two weeks after Graham's arrest, with a message written on it to the effect of "shut your mouth." Church received phone calls in the middle of the night in which someone said "stupid crap." He also received "some really cute letters in [his] mailbox." Church added: "One time at a couple [of boarding] houses I run some Spoonie G Crips showed up and [told two staff members that] if I don't show back up at 2:00 A.M. they were going to shoot the place up and that I needed to keep my mouth shut." Church said the two staff members knew the people making the threats and reluctantly or "barely" told Church about the incident. Finally, Church testified: "A friend of mine told me that he spoke to [Graham] on the phone and that [Graham] told him that my last name wasn't gonna save me, 'cause my last name's Church." Church said that one of the letters he had received echoed this precise phrase, i.e., that his "last name wasn't gonna save" him.
Church said that all the above-described threats occurred over "three to four" months after the shooting outside the Ink Bar. Church "really wasn't scared" by any of the threats. He simply threw the rock and letters away, rather than turning them over to authorities for investigation. Indeed, after reading the first two letters, he did not even bother to read the others. Similarly, regarding the phone calls, he testified: "I would hear the first word or two and hang up and go back to work." Church laughed when asked whether he reported the threatening phone calls to the police, retorting: "I would never waste BPD's[] time with a phone call saying yeah, I got some scary phone calls, 'cause they're just going to tell me okay."
BPD refers to the Bakersfield Police Department.
We need not decide whether the court erred in admitting the evidence of the threats that Church received because, even assuming the court erred, the error is harmless under the applicable Watson standard of prejudice. (People v. Watson (1956) 46 Cal.2d 818, 837.) Church testified briefly about the threats. He referred to the threats as "stupid" and not worthy of police attention. There was no evidence directly linking the threats to Graham, which limited the evidentiary value of the threats in terms of undermining Graham's credibility. Furthermore, Church admitted he was a potential witness in another criminal matter, raising the possibility that the threats were related to that case rather than to Graham's case. In light of the record as a whole, and even considering any potential for cumulative prejudice, we cannot say it is reasonably probable that, had evidence of the threats been excluded, Graham would have obtained a more favorable outcome.
V. SENTENCING ISSUES
Graham raises two sentencing claims. He argues that the 22-year sentence imposed by the trial court for the assault with a firearm on Stewart and related enhancements was an abuse of discretion (the sentence included the upper term of nine years for the assault with a firearm conviction, the upper term of 10 years for the associated firearm enhancement, and a three-year term for the associated great bodily injury enhancement). Graham further asks that the matter be remanded for resentencing in light of a recently enacted amendment to section 12022.5 subdivision (c), the statute under which the firearm enhancements at issue in this case were imposed. The amendment to section 12022.5, subdivision (c), permits the sentencing court, "in the interest of justice pursuant to [s]ection 1385," to strike or dismiss "an enhancement otherwise required to be imposed by this section."
The trial court also imposed a concurrent term of 13 years for assault with a firearm on Johnson and related firearm and great bodily injury enhancements.
Amended section 12022.5, subdivision (c) (effective January 1, 2018) provides:
"The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (See Sen. Bill No. 620, Stats. 2017, ch. 682, § 1.)
Former section 12022.5, subdivision (c), provided, in contrast:
"Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section."
Here, the trial court sentenced Graham to the upper term of nine years for the applicable substantive offense, i.e., assault with a firearm on Stewart, under section 245, subdivision (b). Section 245, subdivision (b), provides: "Any person who commits an assault upon the person of another with a semiautomatic firearm shall be punished by imprisonment in the state prison for three, six, or nine years." The trial court next imposed the upper term of 10 years for the firearm enhancement under section 12022.5, subdivision (a), which provides for an additional term of imprisonment of "3, 4, or 10 years." Finally, the trial court imposed a three-year enhancement for great bodily injury pursuant to section 12022.7. Graham's total sentence for the assault on Stewart and associated enhancements was therefore 22 years, the maximum allowable sentence (at the time of sentencing, the minimum applicable sentence for the substantive offense and related enhancements was nine years).
Graham was 49 years old at the time of sentencing.
The People now concede, correctly, that the amendment to section 12022.5, subdivision (c) (the firearm enhancement statute) applies retroactively to this case under the holdings of In re Estrada (1965) 63 Cal.2d 740 and People v. Francis (1969) 71 Cal.2d 66, 75-76, as it was pending final judgment when the amendment took effect. (See People v. Figueroa (1993) 20 Cal.App.4th 65 [amendment adding an element to an enhancement statute was retroactive under Estrada]; People v. Vieira (2005) 35 Cal.4th 264, 306 ["for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed"].)
Pursuant to the amendment to section 12022.5, the trial court may exercise its sound discretion to strike or dismiss the firearm enhancements associated with both of Graham's assault convictions. Indeed, our conclusion that this amendment is retroactive presupposes a legislative determination that the mandatory imposition of an enhancement under former section 12022.5, subdivision (c), sometimes resulted in sentences that were too harsh. Here, the jury, in rejecting the attempted murder and attempted voluntary manslaughter charges, appeared to credit the evidence that Graham fired into the ground and did not intend to shoot Stewart. Further, although Graham was a felon in possession of a firearm, none of his prior convictions were for a violent offense, a strike offense, or a firearm related offense. In light of the Legislature's determination that mandatory imposition of enhancements under section 12022.5 sometimes resulted in sentences that were too harsh, as well as the actual record in this matter, remand for resentencing is warranted.
Accordingly, we grant the request of both parties to remand the matter for resentencing, to allow the trial court to reconsider its sentence under the amended section 12022.5, subdivision (c). On remand, the trial court will have the option to exercise its discretion to decline to impose enhanced penalties under section 12022.5 with regard to both the firearm enhancements at issue in this matter, or, in light of the ameliorative intent underlying the amendment to this statute, to select lower terms than the terms it previously imposed.
Since we are remanding the case for resentencing pursuant to the request of both parties, we need not address at this juncture, Graham's claim that the trial court abused its discretion in imposing the upper term for the assault on Stewart as well as the upper term for the related firearm enhancement.
The trial court imposed the upper term of 10 years on the firearm enhancement pertaining to the assault on Stewart and the middle term of four years on the firearm enhancement pertaining to the assault on Johnson.
DISPOSITION
Graham's sentence is vacated and the matter remanded for resentencing consistent with this opinion. The judgment is affirmed in all other respects.
/s/_________
FRANSON, Acting P.J. WE CONCUR: /s/_________
PEÑA, J. /s/_________
SMITH, J.