Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County No. BA300454. Charlaine F. Olmedo, Judge.
Patrick Morgan Ford, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Yun K. Lee, Deputy Attorneys General, for Plaintiff and Respondent.
Retired Associate Justice of the Court of Appeal, Second Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
INTRODUCTION
Appellant Carl Lamont Jones appeals from the judgment entered following a jury trial in which he was convicted of dissuading a witness from reporting a crime (Pen. Code, § 136.1, subd. (b)(1)) and assault by means of force likely to produce great bodily injury (§ 245 subd. (a)(1)). Jones contends the trial court improperly permitted a defense witness to be impeached with evidence of charges pending against him, applied the wrong standard when ruling upon his motion for a new trial, and erred by denying his Romero motion. We affirm.
Unless otherwise noted, all subsequent statutory references pertain to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero).
FACTS
At about 12:30 a.m. on August 13, 2005, Los Angeles Police Department Officer Mynerva Gramillo and her partner responded to the apartment of Felicia M. (Felicia) in response to a domestic violence call. Gramillo noticed a broken window and a brick alongside it. Felicia opened the door and quietly stated, “He’s in there,” as she pointed toward the back of the apartment. Felicia appeared frightened and nervous, and the right side of her face was swollen and red. Appellant Jones stepped out of the bathroom, and the police officers handcuffed him.
Unless otherwise noted, all dates pertain to 2005.
Felicia told Gramillo that she had recently broken up with Jones. Felicia said that Jones knocked on the apartment door, but she did not answer. The front window then broke. Felicia told Gramillo that she waited awhile, then opened the door while holding her gun in her hand. Jones grabbed Felicia’s arm and took the gun away from her, then hit her in the face with his fist approximately five times. Felicia told Gramillo that Jones placed the barrel of the gun against her head and asked if she wanted him to shoot her, then threatened to kill Felicia’s children if she called the police. Gramillo retrieved Felicia’s purse containing a loaded handgun from the couch in Felicia’s apartment. Paramedics treated Felicia at the scene, then transported her to a hospital. The police took photographs of Felicia’s injuries that were shown at trial.
Felicia testified that she dated Jones during the summer of 2005. She gave him keys to the garage and back door of her apartment. A few days after August 6, Felicia told Jones she wanted to break up with him, and he seemingly agreed. Felicia changed the locks on her garage and back door.
At about 10:00 p.m. on August 12, Jones banged on the back door to her apartment, said he could not believe she changed the lock, and demanded that she open the door. She then heard banging on the front door and a brick came through the front window. She retrieved her gun and, after waiting a few minutes, opened the front door to see if Jones was gone. He came toward her, took the gun away from her, and struck her face, knocking her to the ground. A neighbor Felicia knew only as “Rain Water” or “Rain Man” ran in and attempted to wrestle the gun from Jones. The neighbor left, and Jones repeatedly punched Felicia in her right eye. Jones pointed the gun at Felicia’s head and said he should shoot her. He put a package of frozen hot dogs on Felicia’s face and ordered her to orally copulate him. She complied, then engaged in intercourse with him. When the police came to the door, Jones stopped and directed Felicia to tell the police that they had just argued, and he was in the shower. Jones gave Felicia the gun and went into the bathroom. Felicia let the police in and told them that Jones was in the bathroom and there was a gun on the couch.
Felicia was dizzy and in severe pain when she spoke to the police officers and at the hospital. She did not tell the police or hospital staff about the sexual assault because at the time she did not consider it important. Her nose and the bone around her right eye were broken. She suffered double vision in her right eye for about a week and for months she experienced headaches and constant pain in her nose and under her right eye.
Felicia testified that she told her brother Brandon that Jones assaulted her.
Brandon M. (Brandon) testified on behalf of appellant. He stated that he had a good relationship with Felicia, and he had met Jones on one occasion in the winter of 2005 or 2006, when Felicia brought him to their mother’s house. On August 12 he was at Felicia’s apartment and saw her arguing with her then-boyfriend Jason. When it appeared that Jason might become physically aggressive with Felicia, Brandon stood up, which seemingly caused the argument to die down. Brandon then left.
In January 2006, Brandon had a conversation with Felicia about the incident giving rise to the charges. Felicia said she had been hit after Brandon left on August 12, 2005. Brandon asked Felicia if it was Jones who struck her, and she said it was not. Brandon further testified that Felicia sometimes lied. She falsely told the police that Brandon had stolen her car. The police arrested Brandon, but he “beat the case.” He was angry with Felicia at first, but he forgave her because she did not know who took her car. Brandon denied that he had been placed in a cell with Jones and denied telling any member of his family that he had been injured in a fight with Jones.
Jones testified that he and Felicia dated for two or three months, but he broke up with her on August 2 because she was too jealous and controlling. When he told Felicia he wanted to break up with her, she threatened him.
On August 12, he telephoned Felicia and arranged to come over and pick up his things from her apartment. He arrived around 10:00 p.m. Two men approached him outside Felicia’s apartment and demanded to know why he was there. One of the men swung at Jones and shoved him against the window next to Felicia’s front door. The window broke. Jones fought with the men, who struck his face and side. He was dazed, and he felt for Felicia’s screen door, which was open just a crack. He entered Felicia’s apartment, and immediately saw that she was pointing a gun at him. Felicia was hysterical and crying. She accused him of leaving her for “that bitch” and threatened to shoot him. The men outside were yelling and demanding that Felicia “let that man out of there.” Jones tried to calm Felicia, then ran into the bathroom to wash the wounds on his face. Jones came out of the bathroom with his hands up when he heard a male police officer whisper, “He’s in there.” Jones told the police that the men outside had attacked him, and he pointed out his assailants, but the police ignored him. Jones denied that he ever struck Felicia.
On cross-examination, Jones testified that four men attacked him outside Felicia’s apartment, and they beat and kicked him. Jones explained that he knew the people who came into Felicia’s apartment were police officers because he was watching the shadows that came under the bathroom door and the people moved like police officers. He further explained that he heard the officer whisper above the sound of the water he was running, because he had his ear up against the bathroom door. Jones admitted that he gave a written statement to the police in which he said three men attacked him outside his “woman[’s] house,” that Felicia was angry with him because he had not come to her apartment for five days, and that he did not hit Felicia, but “[s]he was in the way.” Jones further admitted that in his written statement, he failed to mention that Felicia had pointed a gun at him, that the men outside the apartment beat him, and that after the officers arrested him, he saw the men who attacked him. Jones also admitted that he had previously been convicted of three counts of robbery and two counts of attempted robbery.
The jury acquitted Jones of one count of criminal threats (§ 422), two counts of forcible oral copulation (§ 288a, subd. (c)(2)), one count of forcible rape (§ 261, subd. (a)(2)), and one count of assault with a firearm (§ 245, subd. (a)(2)). It convicted him of dissuading a witness from reporting a crime (§ 136.1, subd. (b)(1)) and found that he personally used a firearm in the commission of the offense (§ 12022.5, subd. (a)). The jury also convicted him of assault by means of force likely to produce great bodily injury (§ 245 subd. (a)(1)) and found that he personally inflicted great bodily injury (§ 12022.7, subd. (a)). Jones admitted a prior robbery conviction and two prior attempted robbery convictions, for purposes of the Three Strikes Law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)) and section 667, subdivision (a)(1). He also admitted he had served a prior prison term within the scope of section 667.5, subdivision (b).
The trial court denied Jones’s motions for a new trial and to vacate all of his strike priors under section 1385. It sentenced him to 33 years to life in prison, consisting of a third strike term of 25 years to life, plus 5 years (§ 667, subd. (a)(1)), plus 3 years (§ 12022.5, subd. (a)), with an additional 1 year concurrent (§ 667.5, subd. (b)). The court also imposed a concurrent term of 29 years to life, consisting of 25 years to life plus 3 years (§ 12022.7, subd. (a)) plus 1 year concurrent (§ 667.5, subd. (b)).
DISCUSSION
1. Impeachment with pending charges
At the time of Jones’s trial, Felicia’s brother Brandon was in custody awaiting trial on unrelated charges. Before Brandon testified, his attorney informed the court that she would advise Brandon to assert his privilege against self-incrimination if the prosecutor attempted to impeach him with the “facts of his pending case,” in which he was “charged with two counts of attempted murder with gun and gang allegations.” The court stated that the prosecutor would be allowed to ask Brandon whether he had charges pending against him and what the charges were, but could not ask about the facts of the case. Jones did not object. On cross-examination, Brandon testified, without objection, that he was in custody, awaiting trial on two charges of attempted murder. The prosecutor did not ask Brandon about gang or firearm allegations.
Jones contends that the trial court improperly permitted the prosecution to impeach Brandon with the pending charges and gang and gun-use allegations. In the alternative, Jones contends defense counsel rendered ineffective assistance by failing to object to the improper impeachment.
Jones apparently misreads the record, as no one mentioned firearm-use or gang enhancement allegations against Brandon in the presence of the jury.
Jones forfeited his claim of evidentiary error by failing to object to the proposed or actual testimony in the trial court. (People v. Williams (1997) 16 Cal.4th 153, 208.)
A claim that counsel was ineffective requires a showing, by a preponderance of the evidence, of objectively unreasonable performance by counsel and a reasonable probability that, but for counsel’s errors, appellant would have obtained a more favorable result. (People v. Ledesma (1987) 43 Cal.3d 171, 216-218.) “‘A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”’” (In re Jones (1996) 13 Cal.4th 552, 561, quoting Strickland v. Washington (1984) 466 U.S. 668, 689.) Counsel’s exercise of discretion over trial strategy must nonetheless be founded upon reasonable investigation and preparation, and it must be reasonable and informed in light of the facts and options reasonably apparent to counsel at the time of trial. (Jones at pp. 564-565.)
Evidence of Brandon’s pending charges was equivalent to evidence of an arrest, and was therefore inadmissible. (People v. Lopez (2005) 129 Cal.App.4th 1508, 1523; People v. Medina (1995) 11 Cal.4th 694, 769.) However, the decision to object to the admission of evidence is inherently tactical. (People v. Williams, supra, 16 Cal.4th at p. 215.) Under the unusual circumstances of this case, we cannot conclude that defense counsel’s failure to object was error, rather than a reasonable tactical decision. Brandon’s testimony in support of the defense presented an unusual alignment of witnesses and parties. Brandon was being called in support of defendant and to impeach his own sister. Under the circumstances, defense counsel may have believed that it may further jeopardize his ability to call Brandon to the stand if further objections were forthcoming. Accordingly, Jones has not overcome the strong presumption that counsel made a reasonable tactical decision to refrain from objecting to evidence of the pending charges. On this record, therefore, his ineffective assistance claim must be rejected.
2. Denial of motion for new trial
Jones moved for a new trial on the ground the evidence was insufficient to support the verdicts and findings. The trial court denied the motion, explaining, “[W]hile there were certainly inconsistencies in [Felicia’s] testimony and impeachment evidence that you presented, the jury found that she was credible and rendered their verdict. [¶] In considering the evidence, I can’t say that there wasn’t evidence to support their charge. It’s a question of what was believable and what was not believable, and the jurors found that her testimony was believable. So on that basis, the court is not going to grant the motion.” After argument by counsel, the court reiterated, “[B]ased upon the jury verdict and their findings, the court will let the jury verdict stand.” (Italics added.)
Jones contends the trial court’s remarks demonstrate that it erroneously failed to independently review the evidence when ruling on his new trial motion.
A trial court considering whether a verdict is contrary to the evidence must independently weigh the evidence, including credibility of witnesses. Except that it should not disregard the verdict, which is presumed to be correct. The court should instead weigh the evidence and decide whether there is sufficient credible evidence to support the verdict. (People v. Davis (1995) 10 Cal.4th 463, 523-524; People v. Lagunas (1994) 8 Cal.4th 1030, 1038, fn. 6.) Absent an unmistakable abuse of discretion, an appellate court will not disturb the trial court’s ruling denying a new trial. (People v. Davis, supra, 10 Cal.4th at p. 524.)
Although the trial court is presumed to know and follow the law, the ruling here would indicate that defendant’s motion was denied based solely on what the jury had decided, without any independent assessment of the evidence by the court. (See People v. Coddington (2000) 23 Cal.4th 529, 644-645, overruled on another point in Price v. Superior Court (2001) 25 Cal.4th 1046-1069 [presumption that judicial duty properly performed applies absent evidence to the contrary]; cf. In re Randy R. (1977) 67 Cal.App.3d 41, 43-44.) Accordingly, it is appropriate to remand the matter to allow the trial court to rule under section 1181 utilizing the proper standard.
3. Denial of Romero motion
Jones moved, under Romero, supra, 13 Cal.4th 497, to vacate all three of the strikes findings. He argued that he was 16 when he committed the prior offenses, his role in the prior offenses was that of an unarmed lookout to “a group of older men,” all of his prior offenses were committed on a single occasion, he grew up without a father, and he did well following his release from the California Youth Authority, until he met Felicia.
Before the trial court heard argument on Jones’s Romero motion, the court stated, “[B]efore you make your argument to the court, I have to say I am not inclined to grant your Romero because when I do grant Romeros, especially for crimes of violence, they are usually very, very old. More than 20 years old are the situations where I have granted Romeros because I find them remote and there hasn’t been new intervening conduct for a long period of time for a particular defendant. This is nine years old. And so particularly for a crime of violence, I usually don’t find that to be so remote. [¶] So if you want to address those issues, I want to be candid with you so you can focus your argument.”
After the parties argued the motion, the court stated, “I am going to deny the Romero motion for the reasons I have already stated, but that’s without prejudice so it can also be renewed later as well.”
Jones renewed his Romero motion at sentencing. The court permitted counsel to argue, then denied the motion: “The court is not going to strike the strikes at this time based upon the fact that while I understand the defense’s position, they are both violent -- the strikes are violent in nature, and they are fairly recent in time. So on that basis, the court is going to exercise its discretion and not strike the strikes.” The court subsequently explained to Jones that it denied the Romero motion because, “whether you were simply a lookout or whether you were a major participant with a firearm in the robbery, it was still a violent crime, and it’s recent in time.”
Jones contends that the trial court abused its discretion by relying upon a policy of denying Romero motions where the prior convictions were less than 20 years old.
A trial court has discretion under the Three Strikes Law to dismiss or vacate prior conviction allegations or findings in the furtherance of justice. (§ 1385, subd. (a); Romero, supra, 13 Cal.4th at pp. 529-530.) In exercising this power, the court must consider the defendant’s background, his constitutional rights, the nature of the current offense, and the interests of society. (Id. at pp. 530-531.) The court should not dismiss or vacate a “strike” unless it concludes that the defendant may be deemed to be outside the anti-recidivist “spirit” of the Three Strikes Law. (People v. Williams (1998) 17 Cal.4th 148, 161.)
The trial court neither stated nor followed a “policy” of striking only prior convictions that occurred 20 or more years earlier. The court merely indicated that most of prior violent felony convictions she had stricken under Romero were more than 20 years old. The court’s comments were intended to channel counsel’s arguments onto factors other than the purported remoteness of Jones’s prior convictions. The record shows that the court was well aware of its discretion, and nothing indicates it considered impermissible factors. It appears that the court rendered an impartial decision in conformity with the spirit of the Three Strikes Law. Jones’s argument that his accomplices were “older men” is misleading. According to the prosecutor’s argument at the Romero hearing, Jones was about six months younger than two of his accomplices and about one and one-half years younger than his third accomplice. The prior offense was apparently an armed takeover-robbery at a shoe store. Jones was convicted of three counts of robbery and two counts of attempted robbery. Those convictions occurred in 2000 and Jones had been recently released from prison before this crime occurred. Jones’s circumstances are not so extraordinary as to place him outside of the spirit of the Three Strikes Law.
Jones also argues that the court improperly denied his Romero motion because in the prior criminal case, there was no advisement or waiver of rights prior to his admission of firearm-use allegations. But a review of the plea transcript from Jones’s prior conviction in Los Angeles Superior Court Case No. NA039548 reveals that he was simultaneously advised of his rights with respect to the offenses and enhancement allegations, and that he waived his rights prior to pleading no contest to the charges and admitting the enhancement allegations.
In any event, Jones’s prior robbery and attempted robbery convictions constituted “strikes” without regard to enhancements. Robbery is a “violent felony” under section 667.5, subdivision (c)(9); robbery and attempted robbery are “serious” felonies under section 1192.7, subdivisions (c) (19) and (39). Jones’s contentions have no merit.
DISPOSITION
The judgment and the order denying the motion for a new trial are vacated with directions to again hear and determine the motion for a new trial in accordance with the principles addressed in section 2 of this opinion. If the trial court determines that a new trial should be granted, appellant will be entitled to a trial on the merits; otherwise, the trial court shall again pronounce judgment upon appellant.
We concur: MALLANO, P. J., ROTHSCHILD, J.