Opinion
E072086
08-13-2020
THE PEOPLE, Plaintiff and Respondent, v. JOHN WAYNE HENDERSON, Defendant and Appellant.
Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. INF1302306) OPINION APPEAL from the Superior Court of Riverside County. Burke Strunsky, Judge. Affirmed in part; reversed in part with directions. Allen G. Weinberg, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant John Wayne Henderson punched his then 64-year-old fiancée Jane Doe repeatedly in the face and hit her over the head with a barstool while they were in her kitchen in Palm Desert. Defendant destroyed her cellular telephone. Defendant dragged Doe to her bed while holding two knives. He cut up her bed and poked her with the knife. He forced Doe to drive him and his roommate, Carolyn Jones, who was also present, to their apartment in Los Angeles. He walked her by knifepoint to the car and cut up the interior of the car when they arrived in Los Angeles. Defendant then forced Doe to strip naked and walk to their apartment. She was held in their apartment for three days until defendant apologized and let her go. Defendant told her not to call the police or he would kill her. Doe had visible injuries to her face when she contacted the police the following day and there was evidence of damage to her apartment and the interior of her car. Defendant was convicted of numerous crimes including kidnapping, making criminal threats and destruction of a wireless device.
Defendant was tried with Jones but she is not a party to the instant appeal.
Defendant claims in his opening brief on appeal that (1) the trial court omitted an element of the offense of destruction of a wireless device requiring reversal of his conviction of violating Penal Code section 591.5 ; (2) remand is necessary for the trial court to exercise its discretion to impose or strike the prior serious felony conviction found true pursuant to section 667, subdivision (a), after the passage of Senate Bill No. 1393 (Stats. 2018, ch. 1013, §§ 1-2) (Senate Bill 1393); (3) his prison prior imposed pursuant to section 667.5, subdivision (b), must be stricken pursuant to newly enacted Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136); (4) the trial court improperly denied his Romero motion to strike his prior serious and/or violent felony convictions; (5) his presentence custody credits were improperly calculated and must be corrected on appeal; and the abstract of judgment needs to be corrected to properly reflect the sentence imposed.
All further statutory references are to the Penal Code unless otherwise indicated.
People v. Superior Court (Romero) 13 Cal.4th 497 (Romero).
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
Defendant was convicted of kidnapping (§ 207, subd. (a); count 1); two counts of false imprisonment of a dependent adult (§ 368, subd. (f); counts 2 & 9); two counts of assault with a deadly weapon (§ 245, subd. (a)(1); counts 3 & 4); corporal injury to a cohabitant (§ 273.5, subd. (a); count 5); making criminal threats (§ 422; count 6); intimidating a witness through the use of force (§ 136.1, subd. (c)(1); count 8); misdemeanor vandalism (§ 594, subd. (b)(1); count 10); misdemeanor vandalism (§ 594, subds. (a)(2) & (a)(3); count 11); and destroying a wireless communication device (§ 591.5; count 12). In addition, for counts 1, 2, 6, and 9, the jury found true the allegation that defendant personally used a deadly or dangerous weapon within the meaning of section 12022, subdivision (b)(1).
In a bifurcated proceeding, after waiving his right to a jury trial, the trial court found true that defendant had suffered one prior serious felony conviction within the meaning of section 667, subdivision (a); two prior serious or violent felony convictions within the meaning of sections 667, subdivisions (b) through (i), and 1170.12, subdivisions (a) through (d); and served one prior prison term within the meaning of section 667.5, subdivision (b).
On January 18, 2019, the trial court sentenced defendant to 75 years to life plus the determinate term of 6 years to be served in state prison. The trial court did not impose any fines or fees finding defendant did not have the ability to pay.
B. FACTUAL BACKGROUND
Doe was 70 years old at the time of trial and had many ailments, including arthritis, diabetes and heart disease. When she was 63 years old, she met defendant and they started dating. In July 2013, she was living in a one-bedroom apartment in Palm Desert. Defendant was living in Los Angeles. Defendant would visit and stay the night on occasion. In July 2013, Doe had a caretaker who came to her home because she just had surgery to replace her hip and knee surgery.
On July 3, 2013, Doe rented a car and drove to Los Angeles. Doe and defendant went to court to get a marriage license but did not get married. She drove him and his roommate, Jones, to her apartment in Palm Desert.
The next day, July 4, defendant and Jones were still at her apartment. They were planning to watch the fireworks from her balcony. Instead, sometime between 7:00 and 9:00 p.m., defendant and Jones got into an argument. Doe thought it was about money. Defendant told Jones that he would take care of it. Defendant approached Doe who was washing dishes in the kitchen and punched her in the head. She fell down. He grabbed a barstool and hit her on the side of the head with it. She could not recall how many times she was hit. She was knocked out. Jones did nothing to intervene.
Defendant dragged Doe to her bed. One of her eyes was swollen shut. Defendant had two knives, which he had taken from a block in her kitchen. He scratched or poked her on the side and arms with the knives. Defendant repeatedly told her that he was going to kill her if she did not comply with his demands. He also threatened to kill her if the apartment manager came to her door.
At some point, defendant boiled the battery for her cellular telephone and "stomped" on the rest of the phone. With a knife, defendant damaged Doe's bed, and cut up her pillows and comforter. Doe did not try to leave because he threatened to kill her.
Defendant gathered all of his belongings that he had at Doe's house and told Doe that she was going to drive him and Jones back to Los Angeles. Doe told him she could not see because of the swelling in her eye. Doe asked Jones to call the police but Jones refused. Defendant walked Doe at knifepoint to the car. Jones walked with them. Defendant told her that he would kill her if she tried to get away. One of her eyes was swollen shut but he forced her to drive. She drove them to their apartment in Los Angeles. She thought about trying to make a maneuver to attract the police but he told her that he would kill her if the police pulled them over. They stopped to get gas on the way and defendant locked her in the car. While they were driving, he slapped her in the face with the knife.
Once they arrived at the Los Angeles apartment, defendant took the car keys. Defendant removed all of his personal items from the car. They parked and defendant slapped her with the knife. He used the knife to cut up the inside of the car. Jones told him to stop, warning him that as soon as he let Doe go, Doe would call the police. Defendant told Doe to get out of the car. He made her take off her clothes in the parking lot, threatening to kill her if she did not comply. Defendant took her clothes and threw them over a fence. Once in the apartment, Doe sat on a couch. Jones gave her a pair of pants and Doe was able to find a shirt. She wore these clothes for three days.
Doe did not call for help once she was in the Los Angeles apartment because she was afraid. She could not walk out the front door because she was unsure where she was, defendant had her car keys and she had no phone. She was in pain the entire three days and did not sleep. She was diabetic and could not take her medication. During the three-day period, defendant demanded that she not call the police or he would kill her. Jones told defendant not to let her go because Doe would call the police.
Defendant eventually apologized to Doe and asked her to forgive him. He asked her to promise not to call the police. Around 8:00 a.m. on the third day, July 7, defendant let her go. He wiped off the knives and gave them back to Doe. She was able to drive back to Palm Desert. She was unable to call anyone on the way home because she did not have her phone and she could not remember any phone numbers.
She got home and did not call the police. She had to purchase a new cellular telephone. Her caretaker came to the apartment on July 8. Her caretaker saw Doe's injuries and that the car was destroyed; she encouraged Doe to call the police.
Doe called the police on July 8, 2013. She reported that she had been "beaten" by defendant on the night of July 3. She reported that he beat her with a stool and had knives on her. He threatened to kill her if she called the police. Defendant also "tore" her new phone.
Riverside County Sheriff's Deputy Saun Jackson responded to Doe's 911 call. Photographs were taken of the bruising on her body and her face. Deputy Jackson first noticed that Doe had two black eyes and a bruise on her chin. Doe told the deputy the injuries were caused by defendant punching her in the face. Doe also mentioned that defendant had a knife and hit her over the head with a barstool. Doe had a bruise on her forearm. She had scars on her arm where defendant poked her with the knife. Deputy Jackson also photographed the damage to Doe's bed and bedding. The damage was consistent with being cut with a knife.
Doe was fearful after she called the police thinking defendant would come after her. Three weeks after the incident she still had black eyes. At the time of trial, she still suffered from stabbing headaches that were a result of having a concussion. She had two heart attacks after this incident. The rental car had $4,500 in damage. The seats were cut and there were marks and scratches on the interior. She had blurry vision in her right eye until she was able to get it fixed. Defendant presented no evidence.
DISCUSSION
A. INSTRUCTIONAL ERROR ON SECTION 591.5
Defendant contends his conviction in count 12 must be reversed as the trial court erred when it failed to instruct on an element of the offense of the violation of section 591.5. The People agree that the trial court failed to give proper instructions on the specific intent but that the error was harmless.
Defendant was charged in count 12 with a violation of section 591.5. Section 591.5 provides "A person who unlawfully and maliciously removes, injures, destroys, damages, or obstructs the use of any wireless communication device with the intent to prevent the use of the device to summon assistance or notify law enforcement or any public safety agency of a crime is guilty of a misdemeanor."
The jury was instructed with CALCRIM No. 2902 entitled "DAMAGING PHONE OR ELECTRICAL LINE (Pen. Code, § 591)" as follows: "The defendant . . . is charged in Count 12 with damaging a telephone line in violation of Penal Code section 591. To prove that the defendant is guilty of this crime, the People must prove that: [¶] One, the defendant unlawfully damaged, obstructed, or disconnected [a] telephone line or mechanical equipment connected to the line; [¶] And, two, the defendant did so maliciously. [¶] Someone acts maliciously when he or she . . . acts with the unlawful intent to annoy or injure someone else. [¶] As used here, 'mechanical equipment' includes a telephone." There was no objection to the instruction.
CALCRIM No. 2902 is properly given for a violation of section 591, destruction of telephone lines, but section 591 does not include an element that the destruction be with the specific intent to keep a victim from notifying the police.
In addition, the jury was instructed with CALCRIM No. 252, which provided, "The following crimes require a specific intent or mental state: Count 6, making criminal threat. Count 8, attempting to dissuade a witness from reporting a crime, and Count 12 damaging a cell phone so it cannot be used to notify law enforcement. [¶] For you to find the person guilty of these crimes, that person must not only intentionally commit the prohibited act, but must do so with a specific intent and/or mental state. The act and the specific intent and/or mental state required are explained in the instruction for that crime." (Italics added.)
We agree with defendant, and the People concede, that a necessary element of a violation of section 591.5 was that defendant must have possessed the intent to prevent the use of the telephone to summon assistance or notify law enforcement when it was destroyed, and that the element was not included in the specific instruction on violating section 591.5. "The trial court has a sua sponte duty to instruct the jury on the essential elements of the charged offense." (People v. Merritt (2017) 2 Cal.5th 819, 824 (Merritt).) As such, the instructions given to the jury did not identify the specific intent required to be found by the jury, thereby omitting an element of the crime.
Here, the failure to instruct on the element that the destruction of the cellular phone had to be to keep Doe from notifying law enforcement does not require reversal because such error was harmless beyond a reasonable doubt. (Merritt, supra, 2 Cal.5th at pp. 822, 831 [instructions that omit element of the crime can be found harmless].) In Merritt, the trial court failed to give the robbery instruction for the charged robbery and the appellate court found such failure to instruct was constitutional error. (Id. at pp. 824-825.) However, the California Supreme Court found that such error was subject to harmless error analysis. The error was harmless in Merritt because the jurors were not "entirely ignorant of the elements of robbery" based on the argument of counsel, and the evidence of robbery was "overwhelming and uncontroverted." (Merritt, at pp. 831-832.)
As in Merritt, the jury here was not "entirely ignorant of the elements of" a violation of section 591.5. (Merritt, supra, 2 Cal.5th at p. 831.) They were properly instructed on the other elements of a violation of section 591.5. Moreover, in instructing the jury on specific intent crimes, the trial court identified count 12 as "damaging a cell phone so it cannot be used to notify law enforcement." The jury was further instructed that it was to pay careful attention to all the instructions and consider them together. We must presume the jurors followed the instructions. (People v. Sanchez (2001) 26 Cal.4th 834, 852 ["Jurors are presumed to be able to understand and correlate instructions and are further presumed to have followed the court's instructions"].) In combining both CALCRIM No. 2902 and the specific intent instruction, the jurors reasonably could find that an element of section 591.5 included that defendant had to damage the cellular telephone so it could not be used to notify law enforcement.
Additionally, based on the findings by the jurors on other counts, and the evidence presented, had the jury been instructed on the specific intent element, it would have found defendant guilty of violating section 591.5. The jury found defendant guilty of dissuading a witness in count 8, which required that the jury find that "defendant maliciously tried to prevent or discourage [Doe] from making a report that she was a victim of a crime to a peace officer." Clearly the jury believed that defendant sought to prevent Doe from notifying law enforcement throughout the ordeal.
Further, defendant, in the midst of hitting Doe in the head, pummeling her with a barstool and dragging her to her bed while holding two knifes, also destroyed her cellular telephone. Doe asked Jones to call the police. Defendant continuously threatened Doe that he would kill her if she called the police and reported him. The evidence established that at least part of defendant's intent during the incident was to keep Doe from contacting the police, including at the time he destroyed her cellular telephone. Any conceivable error in the instructions was harmless beyond a reasonable doubt.
B. SENATE BILL 1393
Defendant contends remand to the trial court is necessary for it to exercise its discretion to strike the five-year term imposed for the prior serious felony conviction imposed pursuant to section 667, subdivision (a). The People concede remand for resentencing is appropriate.
Effective January 1, 2019, sections 667, subdivision (a), and 1385, subdivision (b), allow a trial court to exercise its discretion to strike or dismiss a prior serious felony conviction for sentencing purposes. (People v. Garcia (2018) 28 Cal.App.5th 961, 971.) Defendant was sentenced on January 18, 2019, after the effective date of Senate Bill 1393. However, as conceded by the People, the trial court was clearly not aware of the change when it imposed the section 667, subdivision (a), prior, stating that it was "required by law" to impose the sentence. Under the prior version of section 667, subdivision (a), the court was required to impose a five-year consecutive term for prior serious felony convictions and had no discretion to strike any prior conviction of a serious felony for purposes of enhancement of a sentence. (Garcia, at p. 971.) We agree that the amendment applies to defendant as his case is not final. (Id. at pp. 972-973 [Senate Bill 1393 applies retroactively to all cases not yet final on the effective date].)
We remand the matter to the trial court in order for it to exercise its discretion pursuant to sections 1385, and 667, subdivision (a), to determine whether to strike the prior serious felony enhancement. We express no opinion how the trial court should exercise its discretion on remand.
C. SENATE BILL 136
Defendant further contends, and the People concede, that this court must strike the prior conviction found true pursuant to section 667.5, subdivision (b), after the enactment of Senate Bill 136.
On October 8, 2019, Senate Bill 136 was signed into law and became effective on January 1, 2020. Senate Bill 136 modifies section 667.5, subdivision (b), to eliminate the one-year sentences for prior prison terms served unless the prior prison term involves a conviction of a sexually violent offense (which is not involved here). Senate Bill 136 applies retroactively to those defendants whose cases are not yet final. (People v. Lopez (2019) 42 Cal.App.5th 337, 341-342; see also People v. Garcia, supra, 28 Cal.App.5th at p. 973.) Defendant's case is not yet final, and as such, the one-year sentence imposed and then stayed pursuant to section 667.5, subdivision (b), for his prior prison sentence should be stricken. We will direct the trial court to strike the prior- prison-term enhancement that was imposed and stayed pursuant to section 667.5, subdivision (b).
D. ROMERO MOTION
Defendant contends the trial court should have granted his Romero motion and imposed only one 25-years-to-life sentence and dismissed the strike priors for the other counts. Defendant asks this court to remand to the trial court and direct it to exercise its discretion to impose only a single 25-years-to-life sentence.
1. ADDITIONAL FACTUAL HISTORY
Prior to trial, defendant brought a Romero motion to dismiss his two prior strike convictions alleged under the "Three Strikes" law. Defendant contended that the instant case was a "girlfriend/spousal battery" in which defendant struck Doe in the face but did not cause great bodily injury; and that the prior offenses of murder and robbery were all part of the same occurrence. Defendant served 43 years for the crimes. Defendant was elderly and any lengthy prison term would result in his dying in prison. Defendant relied upon People v. Garcia (1999) 20 Cal.4th 490 to argue that the trial court could strike the priors as to some counts and that the trial court should not place undue emphasis on defendant's prior record.
The prosecutor objected to the dismissal of the priors. Defendant had been in prison for 43 years for committing serious and violent offenses of murder and robbery. The trial court acknowledged that the two strikes were committed at the same time and were part of the same conviction. The trial court denied the motion to strike the 1970 convictions. Defendant had spent a significant amount of time in custody on the convictions and committed similar violent offenses in the current case.
Defendant renewed his Romero motion at the time of sentencing, relying on the motion filed prior to trial. In addition, defendant wrote a letter to the court that he had spent 43 years in state prison. When he got out, he just wanted to be loved and Doe took advantage of him. He admitted that he was guilty of domestic violence but nothing else. He wrote another letter stating that Doe had kidnapped him and driven him to Palm Desert. She hit him in the eye. He hit her back to defend himself. She then willingly drove defendant back to Los Angeles along with his roommate. During the relationship, Doe had abused him. He did not want to go to prison based on the lies Doe told at trial.
Defense counsel argued in favor of the motion that the trial court had discretion to strike "whatever strikes" it felt would give justice in the case. Further, any sentence of over 25 years to life would be a death sentence since defendant was 72 years old. Defendant's counsel argued that defendant should only be sentenced to one 25-years-to-life sentence. The People relied on their prior opposition.
The trial court looked at defendant's background, character and prospects. Defendant was 72 years old and had spent 42 years of his life in prison. He was not out of prison for an extended period before he committed the instant crimes. The trial court did not believe that defendant could "conform his behavior to that required . . . by the law." Defendant in the current offense had engaged in kidnapping and his crimes spanned over three to four days. The trial court denied defendant's Romero motion and sentenced him to 75 years to life.
2. ANALYSIS
A trial court has discretion to dismiss a strike prior under section 1385. (Romero, supra, 13 Cal.4th at pp. 529-530.) The trial court considers " 'whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies.' " (People v. Carmony (2004) 33 Cal.4th 367, 377 (Carmony).)
"[A] trial court's refusal or failure to dismiss or strike a prior conviction allegation under section 1385 is subject to review for abuse of discretion." (Carmony, supra, 33 Cal.4th at p. 375.) "This standard is deferential. [Citations.] [I]t asks in substance whether the ruling in question 'falls outside the bounds of reason' under the applicable law and the relevant facts." (People v. Williams (1998) 17 Cal.4th 148, 162.)
"Because the circumstances must be 'extraordinary . . . by which a career criminal can be deemed to fall outside the spirit of the very scheme within which he squarely falls once he commits a strike as part of a long and continuous criminal record, the continuation of which the law was meant to attack' [citation], the circumstances where no reasonable people could disagree that the criminal falls outside the spirit of the three strikes scheme must be even more extraordinary." (Carmony, supra, 33 Cal.4th at p. 378.) Defendant must show that the trial court's decision not to strike the prior conviction is "irrational or arbitrary." (Id. at pp. 376-377.)
Here, defendant has not met his burden of showing the trial court's decision was irrational or arbitrary. The trial court addressed defendant's Romero motion on two separate occasions. The trial court considered that defendant's prior convictions were for violent and serious offenses and that he had spent over 40 years in prison. Once paroled, defendant again engaged in a violent offense, beating Doe and then holding her against her will for a span of three days. Defendant repeatedly threatened Doe—a 64-year-old woman with numerous health problems. The trial court did not abuse its discretion by refusing to strike defendant's prior convictions..
Defendant claims the trial court abused its discretion as it did not properly consider each count in determining the proper sentence pursuant to People v. Garcia, supra, 20 Cal.4th at p. 504. Defendant insists that one, 25-years-to-life sentence would have punished defendant and protected society.
Initially, this court cannot dictate to the trial court the specific sentence it must impose unless such sentence is mandatory. Here, the trial court has discretion to impose or strike the prior convictions. Moreover, the trial court properly considered that defendant's prior convictions were serious and violent in determining that defendant fell within the spirit of the Three Strikes law. Defendant continued his violent crimes shortly after being released from prison. Further, he failed to show any remorse after his convictions, instead claiming that Doe kidnapped and hit him. Defendant has failed to show that the trial court's decision to impose the Three Strikes sentence as to all of the convictions was an abuse of the trial court's discretion
D. CORRECTION OF PRESENTENCE CREDIT
Defendant claims the abstract of judgment must be corrected to reflect the proper presentence custody credits. Defendant's counsel and the prosecutor calculated the presentence custody credit up to date of sentencing on January 18, 2019. They calculated, and he was awarded, 1,957 actual credits, 292 presentence conduct credits, for a total of 2,249 credits.
The probation department had filed a report on presentence custody credit. It estimated the local time served was 1,956 actual days and the section 2933.1 time was 293 days. The total presentence custody credit was calculated at 2,249 days. Both defendant and the People agree that this is the correct calculation of credits and that it can be corrected for the first time on appeal. (See People v. Acosta (1996) 48 Cal.App.4th 411, 427-428 [presentence custody credits can be corrected on appeal if other issues are raised].) We will direct the trial court to correct the credits.
E. CORRECT ABSTRACT OF JUDGMENT
Defendant requests that the abstract of judgment be corrected to omit the 25-year sentence on count 8, which appears in addition to the 25-years-to-life sentence on count 8. The People concede the error and also contend that the abstract of judgment should be corrected to reflect that defendant was convicted by a jury rather than by a court trial.
Defendant was sentenced to 25-years-to-life on count 1, 3 and 8, which is correctly reflected on the first page of the abstract of judgment. However, on the second page of the abstract of judgment, it lists count 8 and a sentence of 25 years. In addition, all counts erroneously reflect that defendant was convicted in a court trial.
"It is well settled that '[a]n abstract of judgment is not the judgment of conviction; it does not control if different from the trial court's oral judgment and may not add to or modify the judgment it purports to digest or summarize. [Citation.]' [Citation.] When an abstract of judgment does not reflect the actual sentence imposed in the trial judge's verbal pronouncement, [an appellate court] has the inherent power to correct such clerical error on appeal, whether on [its] own motion or application of the parties." (People v. Jones (2012) 54 Cal.4th 1, 89.)
We will direct the trial court to correct the abstract of judgment, omitting the additional sentence of 25 years reflected for count 8 and noting that defendant was convicted in a jury trial.
DISPOSITION
The matter is remanded for the limited purpose of allowing the trial court to exercise its discretion to strike or impose the prior serious felony conviction found true pursuant to section 667, subdivision (a). We direct the trial court to strike the prior-prison-term enhancement that was imposed and stayed pursuant to section 667.5, subdivision (b). We also direct the trial court to correct the presentence custody credits to reflect 1,956 actual days of custody credit, plus 293 days of conduct credit, for a total of 2,249 days. In addition, we direct the trial court to correct the abstract of judgment to omit the additional 25-years sentence on count 8 leaving the 25-years-to-life sentence and to reflect that defendant was convicted in a jury trial. The trial court is directed to prepare a new abstract of judgment and forward it to the Department of Corrections and Rehabilitation after resentencing. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
Acting P. J. We concur: FIELDS
J. RAPHAEL
J.