Opinion
C083637
08-13-2018
THE PEOPLE, Plaintiff and Respondent, v. MARKIS ANTONIO HENDERSON, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 14F03682)
A jury found defendant Markis Antonio Henderson guilty of three counts of robbery. On appeal, defendant contends (1) the trial court erred in allowing the prosecution to impeach his credibility with four prior convictions; (2) it erred in failing to instruct the jury, with CALCRIM No. 316, on the use of prior felonies; and (3) those errors cumulatively require reversal. In a supplemental brief, defendant contends remand is required to allow the trial court to consider striking defendant's firearm enhancement following Senate Bill 620's enactment. Defendant's final contention has merit. We will remand to allow the trial court to consider striking the firearm enhancement. In all other respects, the judgment is affirmed.
BACKGROUND
Three victims testified to being robbed by defendant. Two of the victims were a couple, engaged to be married; the third victim was their friend. At trial, defendant maintained the robbery had actually been a gun sale.
The first victim, the fiancée, testifies
The fiancée testified she and her fiancé were looking for a car on Craigslist, when they saw an ad for a 1997 Honda Civic. She sent a text message to the seller (defendant) asking if there were any aftermarket parts. Defendant replied no, "everything was stock." Her fiancé then called defendant and negotiated $2,500 for the Civic. Defendant provided a Sacramento address, and they agreed to meet at 7:00 p.m.
The couple got a ride with their friend (the third victim). When they arrived, the three met defendant inside a gated apartment complex.
Defendant said his girlfriend had taken the car down the road, so they waited. The fiancée recalled waiting for at least an hour while her fiancé talked with defendant about sports. Eventually, her fiancé said he wanted to leave. Defendant said his girlfriend was just getting off the freeway.
Shortly after that, the fiancée heard the "click" of a gun. She turned to see defendant pointing a gun at her fiancé. Defendant asked where the money was. Her fiancé handed over about $150 and his phone. The other two victims also handed over their phones.
Defendant said the victims seemed like good people so he would give them three seconds to run. The victims fled and found a regional transit officer who contacted the police for them.
The second victim, the fiancé, testifies
The fiancé gave similar testimony, testifying they were looking for a car and found a Civic for sale on Craigslist. He called defendant who agreed to sell it for $2,700. A friend drove them to pick up the car.
At the apartment complex, defendant said his girlfriend had taken the car but would be back shortly. In the parking lot, they talked for about 20 to 30 minutes about the NBA finals, defendant selling the car, and the new car defendant was looking to buy. Defendant then said his girlfriend was getting off the freeway. As the fiancé turned his back to defendant, he heard a gun cock back. He turned to see defendant pointing a gun at him.
Defendant said, "where's the money?" The fiancé handed him money from his wallet along with his phone. The others also surrendered their phones. Defendant said he would let them go because he thought they were cool, but if they looked back, he would shoot.
The third victim, the friend, testifies
The friend also gave similar testimony. The couple had asked him for a ride to look at a car on Craigslist, and he drove them to an apartment complex in Sacramento. They met defendant inside a gated apartment complex.
Defendant said his girlfriend had the car and would be back in 30 minutes. They waited 30 to 45 minutes. When their backs were turned to defendant, they heard a gun being cocked. Defendant asked for their phones and cash. He then told them to run or he would shoot.
A detective testifies
After the incident, a detective reviewed defendant's cell phone and found text messages regarding a Honda Civic, including: "Hey, I just called. I was wondering if the interior is in good condition. I don't see pics of it on craigslist." An outgoing message replied, "Interior in excellent condition, real steal." Another message asked if the car included aftermarket stuff, with a response, "Everything stock."
Defendant testifies
Defendant testified, denying he ever posted a Craigslist ad. He maintained he was selling a gun to the fiancé and ultimately swindled him. He knew the fiancé through an ex-girlfriend and had called to tell him about some guns for sale. They agreed on a price and to meet.
Defendant acknowledged receiving the text message: "Hey, I just called. I was wondering if the interior is in good condition. I didn't see pics of it on craigslist." Defendant testified that it and other messages about car sales were in fact "slick talk," designed to conceal illegal gun transactions. For example, the response, "[i]nterior in excellent condition. Real Steal," meant the gun was in working order. The incoming message, "any aftermarket stuff?" referred to "extra clips or extended clips." His response, "everything stock" meant it was a "regular gun with a regular clip." His message, "yes, I have it still, and yes, it passed smog a few weeks ago," meant the gun would fire. Similarly, an incoming text asking about mechanical problems and mentioning the transmission was in fact asking if the gun would fire.
The parties stipulated defendant was convicted of a felony in 2013 and prohibited from owning a firearm.
As to the incident, defendant testified that at the apartment they made small talk because people were around. Eventually, he showed the fiancé the gun, but the fiancé was unhappy with its condition. When the fiancé ultimately gave defendant the money for the gun, defendant left claiming he would return with the gun and the clip. Instead, he walked out the side gate.
On cross, defendant was asked about other text exchanges and insisted they were for gun sales: "Good afternoon. I'm interested in your Honda listed on craigslist. Is it still available? If so, when and where can I see it? Thanks, George"; "Hey can I come by in the morning around 8:00 when I get off to look at it, or is that too early?"; "any mechanical problems, transmission?"; "Hey, hi, do you still have your Accord for sale? I was wondering, did it pass smog?"; "Yes, I have . . . it still. Yes, it passed smog a few weeks ago"; "Yes, it is smogged and ready to go."
A would-be victim testifies
The prosecution offered a would-be victim as a rebuttal witness. He testified he had responded to a craigslist ad for a Honda Civic. He called and spoke to the seller who invited him to come look at it. The seller gave him the same address where the three victims went.
When the would-be victim arrived at the Sacramento address, he called and the seller told him to drive to the front gate. He waited for 15 to 20 minutes. Eventually, a maintenance worker approached and said, "you're not the first." The worker explained someone had been trying to sell a car and scam people.
The would-be victim left and called the police.
Jury verdict and sentence
The jury found defendant guilty of one count of unlawfully possessing a gun as a felon (Pen. Code, § 29800, subd. (a)(1)); and three counts of second degree robbery (§ 211). For each robbery count, the jury found he had used a handgun during the commission (§ 12022.53, subd. (b)).
Undesignated statutory references are to the Penal Code.
The trial court imposed an aggregate 21-year 4-month term. It included, a 2-year low term for the principle robbery count, plus a 10-year firearm enhancement; 4-year 4-month terms for the other two robbery counts, comprised of one year for the robbery (one-third-the-middle term) plus 3 years 4 months for the gun enhancements (one third the term); and an 8-month term for possessing the gun as a felon (one-third-the-middle term). In selecting the low term on the principle count, the court added, "[e]ven though a gun was used, it was not in a violent way."
DISCUSSION
I
Admission of Four Prior Convictions
Defendant first challenges the admission of four prior convictions for impeachment purposes. We reject this challenge.
A.
Background
The prosecution moved in limine to impeach defendant with five prior convictions: convictions in 2013 and 2012 for vehicle theft; a 2011 conviction for possessing a firearm as a felon; a 2008 conviction for carrying a concealed firearm; and a 2006 burglary conviction. Defense counsel objected, arguing all five were not necessary to challenge defendant's credibility and risked the jury using them for an impermissible purpose. The trial court granted the motion as to four priors but excluded the 2006 burglary conviction.
The court also ordered that the priors be referred to only as crimes of moral turpitude. On direct, defense counsel nevertheless elicited from defendant the specific convictions asking, "do you remember what year, what the charge was when you pled to them?" Defendant responded, "2008 possession of a firearm, 2011 felon in possession of a firearm, 2012 vehicle theft and 2013 vehicle theft."
B.
Analysis
On appeal, defendant contends the trial court abused its discretion in permitting the prosecution to impeach with the four prior convictions. While conceding the four priors were probative of his veracity, he maintains a single prior would have sufficed. He reasons that admitting four priors added nothing to their probative value and permitted the prosecution to present him as a repeat offender, more likely to commit a crime. We disagree.
Trial courts have broad discretion to admit prior convictions for impeachment purposes, and we review such rulings for abuse of discretion. (People v. Hinton (2006) 37 Cal.4th 839, 887-888 (Hinton).) Courts may admit or exclude priors after balancing four factors: "(1) whether the conviction reflects adversely on the defendant's honesty or veracity; (2) whether the conviction is near or remote in time; (3) whether the conviction is for substantially similar conduct for which the accused is on trial; and (4) the effect if the defendant does not testify out of fear of being prejudiced by impeachment by prior convictions." (People v. Holt (1984) 37 Cal.3d 436, 452 (Holt).) The first two factors are weighed against the probability of (a) necessitating undue time consumption time, or (b) creating " ' "substantial danger of undue prejudice, confusing the issues, or misleading the jury." ' " (Id. at pp. 452-453.)
"Whether or not more than one prior felony is to be admitted for the purpose of impeachment is simply one of the factors which must be weighed against the danger of prejudice." (Holt, supra, 37 Cal.3d at p. 453.) "[A] series of relevant crimes is more probative of credibility than a single lapse." (Hinton, supra, 37 Cal.4th at p. 888.)
Here, the trial court acted within its discretion in admitting the four priors. Each prior was probative of defendant's credibility — defendant does not contend otherwise. And while admitting four priors was more damaging to the defense than a single prior, it was also more probative of defendant's credibility. (See Hinton, supra, 37 Cal.4th at p. 888) Further, we conclude the aggregation of the four priors does not give rise to prejudice that substantially outweighs their combined probative value. Defendant's argument that any one prior would have sufficed does not convince us otherwise.
II
Failure to Instruct with CALCRIM No. 316
Defendant next contends the trial court erred in failing to instruct the jury with CALCRIM No. 316. We conclude there was no error.
A.
Background
CALCRIM No. 316 provides that the jury may consider a witness's past felony only in evaluating the witness's credibility. It further instructs that a conviction does not necessarily destroy or impair a witness's credibility; the jury decides the weight of the conviction and whether it makes the witness less believable.
Here, before instructing the jury, the trial court noted it had had "significant discussion both in person and through e-mail about jury instructions" and had provided a copy of the final instructions. The court then asked if counsel had any objections. Both responded "no."
B.
Analysis
Preliminarily, a trial court has no sua sponte duty to instruct on CALCRIM No. 316. (People v. Hernandez (2004) 33 Cal.4th 1040, 1051-1052; People v. Kendrick (1989) 211 Cal.App.3d 1273, 1278; CALCRIM No. 316.) Thus, here, counsel's failure to request the instruction forfeits the contention on appeal. (See People v. Sanchez (2016) 63 Cal.4th 411, 460 [failure to request limiting instruction forfeits issue].)
Defendant nevertheless maintains the trial court was sufficiently apprised of the need for the instruction when his counsel objected to admitting the priors noting: "if the jury hears he has five convictions, it really runs the risk of them considering it for a purpose that they should not, even though the Court will direct them on how to use that." (Italics added.) Not so. That remark was insufficient to request the instruction — particularly when counsel, after "significant discussion," represented she had no objections to the proposed instructions.
Anticipating that conclusion, defendant argues, in the alternative, that his trial counsel rendered ineffective assistance in failing to request the instruction. To establish ineffective assistance of counsel, a defendant must show (1) his or her counsel's performance was deficient and (2) he or she suffered prejudice as a result. (People v. Mickel (2016) 2 Cal.5th 181, 198.) Establishing prejudice requires showing "a reasonable probability that, but for counsel's deficient performance, the outcome of the proceeding would have been different." (Ibid.)
Here, assuming counsel rendered ineffective assistance in failing to request a CALCRIM No. 316 instruction, defendant cannot establish prejudice. (See People v. Holt (1997) 15 Cal.4th 619, 703 [" ' "a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies" ' "].)
The record affords no reasonable probability of a different outcome had the jury received the instruction. The victims provided substantially similar accounts of the robbery. Text messages on defendant's phone corroborated those accounts. And while defendant maintains those texts were code for handgun sales, even if defendant's explanation did not defy credulity on its face, it was refuted by the testimony of the would-be victim, who responded to a Craigslist ad for a Civic, arrived at the same apartment complex, and was told that someone selling a car had been scamming people.
III
Cumulative Error
Defendant next contends the cumulative effect of the errors violated his right to due process and a fair trial. Allowing the prosecution to introduce four prior convictions to challenge defendant's credibility and failing to instruct regarding their limited purpose raised a strong possibility their aggregate effect was greater than the sum of their parts.
Having found no error in admitting the four priors, defendant's claim of cumulative error is essentially a rehashing of his second contention. (See In re Reno (2012) 55 Cal.4th 428, 483 ["claims previously rejected on their substantive merits—i.e., this court found no legal error—cannot logically be used to support a cumulative error claim because we have already found there was no error to cumulate"].) Having rejected that contention, we reject the contention of cumulative error as well.
IV
Senate Bill 620
Finally, in a supplemental brief, defendant contends remand is required to allow the trial court to consider striking the firearm enhancement. We agree.
The People did not address this contention in their brief, although defendant's supplemental brief was filed several months in advance of the Respondent's brief. --------
Prior to January 1, 2018, an enhancement under section 12022.53 was mandatory and could not be stricken in the interests of justice. (See former § 12022.53, subd. (h) (Stats. 2010, ch. 711, § 5); People v. Felix (2003) 108 Cal.App.4th 994, 999.) Senate Bill No. 620 amended section 12022.53, subdivision (h), to permit the trial court to strike firearm enhancements imposed under section 12022.53. Under the new provisions, "[t]he 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." (Stats. 2017, ch. 682, § 2.)
Senate Bill 620 applies retroactively. (People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091 [remanding pursuant to the amended § 12022.53]; see also In re Estrada (1965) 63 Cal.2d 740, 744.)
Here, the amendment took effect before defendant's conviction becomes final and therefore Senate Bill 620 applies retroactively. (See People v. Vieira (2005) 35 Cal.4th 264, 306.) And because the trial court had no opportunity to consider exercising its discretion to strike the firearm enhancement, we will remand to allow it to do so.
DISPOSITION
The matter is remanded to the trial court to consider exercising its discretion to strike the firearm enhancement under Penal Code section 12022.53, subdivision (h). In all other respects, the judgment is affirmed.
/s/_________
HOCH, J. We concur: /s/_________
RAYE, P. J. /s/_________
ROBIE, J.