Opinion
F071629
03-14-2017
THE PEOPLE, Plaintiff and Respondent, v. JAKOB AARON MAIN, Defendant and Appellant.
John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Larenda R. Delaini, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CRF46086)
OPINION
APPEAL from a judgment of the Superior Court of Tuolumne County. Donald I. Segerstrom, Jr., Judge. John F. Schuck, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and Larenda R. Delaini, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Jakob Aaron Main was convicted of possession of a firearm by a felon, misdemeanor possession of a controlled substance, i.e., hydrocodone pills, and misdemeanor possession of a narcotics smoking device. He was sentenced to an aggregate term of 10 years in prison. His sentence for possession of a firearm by a felon was doubled based on the trial court's finding that he had suffered a prior strike conviction within the meaning of the Three Strikes Law.
Main challenges, for insufficiency of evidence, his convictions for possession of a firearm by a felon and possession of a narcotics smoking device. He also argues that his convictions must be reversed in light of the admission of highly inflammatory evidence—specifically, evidence of a Nazi flag and Nazi-related tattoos on his person—that resulted in an arbitrary and fundamentally unfair trial, in violation of his right to due process. We reject these contentions.
Main further challenges, for insufficiency of evidence, the trial court's true finding on the prior strike enhancement allegation included in the information. We agree that the trial court's true finding on this enhancement allegation, which was made pursuant to the Three Strikes Law, was not supported by sufficient evidence. Accordingly, we strike the true finding on this enhancement allegation, vacate defendant's sentence, and remand the matter for retrial of the enhancement allegation and/or resentencing, consistent with this opinion.
FACTS AND PROCEDURAL HISTORY
Main was charged, in a first amended information (information) filed in the Tuolumne County Superior Court, with being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1) ; count 1), misdemeanor possession of a controlled substance, i.e., hydrocodone (Health & Saf. Code, § 11350, subd. (a); count 2), and misdemeanor possession of a device used for smoking a controlled substance (Health & Saf. Code, § 11364.1, subd. (a); count 3). The information further alleged that in 1995, Main had suffered a juvenile adjudication for a strike offense within the meaning of the Three Strikes Law (§ 667, subds. (b)-(i)) and had served multiple prior prison terms (§ 667.5, subd. (b)).
All statutory references are the Penal Code unless otherwise indicated.
Main was found guilty as charged by a jury. Outside the presence of the jury, Main admitted that he had suffered a prior juvenile adjudication for mayhem in 1995 and had served four prior prison terms. The trial court then determined, in a bench trial, that the juvenile adjudication constituted a strike for sentencing purposes.
Main was sentenced to 10 years in prison: six years on count 1 (the upper term, doubled on the basis of the prior strike) and four years collectively on the four prison priors. The court imposed a concurrent sentence of one year on count 2 and of six months on count 3.
Prosecution case
At about 1:40 p.m. on December 30, 2014, officers from the Tuolumne County Sheriff's Department executed a probation warrant for Main at an apartment on Chukar Circle in Sonora. The law enforcement team included, among others: Deputies Jacob Ostoich, Richard Donaldson, and Matthew Stuart; Sergeants James Oliver and Deborah Moss; Corporal Butler; and two probation officers.
Sergeant Oliver, Deputy Stuart, and the two probation officers were assigned to the county's "probation team."
Upon the team's arrival at the apartment, Sergeant Moss knocked loudly on the door and announced the presence of law enforcement. About three or four minutes later, Elizabeth Roberts answered the door. Roberts asked to see a warrant authorizing the law enforcement action and started to close the door. Deputy Ostoich prevented Roberts from closing the door by sticking his foot in the doorway and pulling her outside. As Ostoich did so, Roberts made "several spontaneous statements," including something along the lines of "Don't shoot my man. He's inside. He does not have a gun and you guys just recently shot somebody. Don't kill my man." At the time Roberts made this statement, i.e., that Main did not have a gun, none of the officers had mentioned guns or inquired whether Main was armed.
At that point, Deputy Ostoich again announced law enforcement's presence and commanded Main, several times, to come to the door with his hands up. His verbal commands did not elicit a response, prompting officers to enter the apartment. Corporal Butler then ordered Main to present himself. Main responded, "I'm coming outside," and exited a bedroom with his hands up.
Sergeant Oliver and Deputy Stuart entered the bedroom that Main came out of, to conduct a probation search of his belongings. When looking under the bed on his hands and knees, Oliver spotted a "Colt .380 pistol" "just sitting out." Oliver described the pistol as a "small silver handgun." He explained the bed was placed against a wall, and the gun was "maybe a foot or foot and a half back" from the accessible edge of the bed; it "wasn't covered up or hidden or anything." Deputy Stuart testified that the gun was "maybe a foot" from the accessible edge of the bed. The gun was in a holster and was ready to fire: it was loaded with four rounds in the magazine and one in the chamber, "the magazine was inserted and the slide was forward." Stuart "rendered the firearm safe" by "remov[ing] the magazine from the gun and taking the cartridge out and then locking the slide to the rear to make sure that the chamber [was] clear of any rounds or cartridges." Oliver and Stuart also found a glass pipe "commonly used to smoke methamphetamine" next to the gun, as well as four hydrocodone pills wrapped in cellophane on a table by the bed. The glass pipe had "some white residue in it which is common for methamphetamine." Two suitcases, at least one of which contained "a large amount of women's clothing," were also in the bedroom.
Sergeant Oliver testified that the glass pipe lay within a foot of the gun.
Sergeant Oliver described the bed in the room as a "bunk bed setup," with a twin-size upper bunk and a double-size lower bunk.
Elizabeth Roberts subsequently testified, for the defense, that there was a suitcase and a duffle bag in the room; the suitcase was hers and the duffle bag was Main's. She said she had used the suitcase and the duffle bag to transport her laundry to the apartment.
A picture of Main and a little girl was hanging in the bedroom Main had emerged from; a Nazi flag (a flag depicting a swastika) was also hanging on a wall in the same room. Main had a number of tattoos of Nazi symbols on his head and body, including a swastika tattoo on his chest, as reflected in booking photos.
Deputy Donaldson questioned Roberts in the apartment's living room; he was mainly seeking to determine whether Main and/or Roberts lived at the apartment. The living room contained a large pile of laundry, and, during the questioning, Roberts reached into the pile to grab some socks to put on. Roberts said she was Main's girlfriend. Roberts said the apartment belonged to Elizabeth Main, Main's mother, who was not home at the time. She explained, initially, that she and Main had just "stopped by" the apartment. Donaldson asked Roberts, "why she would have a large pile of laundry inside the apartment if she had only stopped by?" Roberts then changed her story, stating that she and Main "had been there for a couple of days." However, "she was pretty adamant they didn't live there." Donaldson asked Roberts for her identification; at Roberts's direction, Donaldson found the identification in a suitcase in the bedroom.
The parties stipulated that Main "had been duly and legally convicted of a felony or felonies."
Defense case
Roberts, age 29, was the only witness called by the defense. At the time, Roberts was detained at the Calaveras County Jail but was transported to court to testify. Roberts provided a very different account at trial than the statement she gave to Deputy Donaldson at the apartment.
For one thing, in contrast to her prior statement that the Chukar Circle apartment belonged to Main's mother, Elizabeth Main, at trial Roberts testified that the apartment was her own mother's home. She explained that Elizabeth Main was her own mother, not Main's mother, and that she used the last name "Main" on account of her relatively recent marriage to Main's lately-deceased uncle, James Main. She described her mother's full name as "Elizabeth Kay Roberts or Main."
Roberts testified that she had known Main for 19 years. Since August 2014, Main had been her boyfriend. At the time of the incident underlying the instant case, Main and Roberts were living in separate rooms at the Black Bart Hotel in San Andreas.
Roberts testified that the .380 Colt pistol recovered from the Chukar Circle apartment was her gun. She purchased it in May 2014 for $60 through a friend in Amador County, Sandy Roberts, for safety reasons. Roberts had told Main she owned a gun but had never shown it to him, nor let him possess or shoot it, because, as a felon, he could not have "a gun around him." Indeed, shortly after Roberts and Main started dating in August 2014, she put the gun in a locked box and buried it five feet underground on a friend's property in the Ponderosa area of Sonora. Roberts could not remember the exact address for, or the names of any streets bounding, the property where the gun was buried. Nor could she remember the full name of the friend who owned the property.
Roberts initially stated that Sandy Roberts lived in Calaveras County.
Roberts arrived at her mother's apartment in the "late evening," about 7:00 p.m. or 8:00 p.m., on December 29, 2014, bringing dirty laundry with her. A friend had driven both Roberts and Main to Sonora; Roberts got "dropped off" at her mother's apartment so she could "do laundry at the laundromat" that was located in a neighboring building. Her mother was visiting Roberts's sister in San Andreas, so Roberts "[broke] into the apartment" through an unlocked kitchen window. As Roberts "went into the house," Main and the friend left. Roberts testified that she "ate some food and watched movies and went to bed" around midnight. She woke up the next morning "[p]robably like 10:00ish." Main came by later that day, "[p]robably like forty-five minutes prior to when the sheriffs showed up."
Subsequently, when defense counsel asked how the pistol got to the apartment, Roberts testified: "On the 29th, I had my girlfriend take me to where the gun was which was at her house and I brought it back there." Roberts went to get the gun around 8:00 p.m. or 9:00 p.m. When asked why, upon breaking into her mother's apartment to do laundry, she suddenly felt the need for a gun, Roberts responded:
"Because I was paranoid of somebody that I ran into just a few months before this who had raped me when I was twelve years old. I ran into him at a friend's house [previously] and I got scared when my boyfriend had dropped me off [at the apartment]. I was just getting it for my own safety. That's why I had the gun in the first place."
Counsel asked why Roberts did not just have Main stay with her at her mother's house. Roberts answered:
"If he was with me, I wouldn't have got the gun because I wouldn't feel scared or paranoid. He had to go do whatever because we weren't getting along at this second. He left and I had my girlfriend bring me to the gun and I got it and brought it in the locked box that I have."
Roberts testified that Main did not return to the apartment until the next day; at that time they folded clothes Roberts had recently laundered. Roberts testified, "I started the laundry the night before. They lock it at 8:00." The prosecutor then asked, "You weren't doing laundry at 8 o'clock that night, because you're telling these people you were out getting a gun from somewhere?" Roberts responded by changing her story:
"I had my girlfriend go get the gun which is right in Sonora. It's not too far from the Quail Hollow on her property, because I knew it was not to be around [Main] so I had [my girlfriend] hold it to keep it safe."
Roberts iterated that she needed the gun because she was paranoid as result of being "high on meth" for a "couple of days" and felt vulnerable in light of an earlier encounter, about six months ago, with a man who had previously raped her.
Roberts testified she took the gun to bed with her that night: "I wasn't planning on falling asleep. I was just laying there relaxing watching TV with the gun," and, at some point, the gun "fell behind the head of the bed where I was at." She never touched the gun again. Roberts denied telling the defense investigator, Bill Perreira, that she used some methamphetamine and fell asleep with the gun in the bed, and that later that night Main got in the bed too. She further denied telling Perreira that by the time she woke up the gun had fallen to the floor, so she slid it under the bed.
Roberts testified that the narcotics pipe was also hers, as were the hydrocodone pills, which she described as "Norcos." Roberts said the narcotics pipe was "on the desk in the room." As for the pills, her mother had previously given those to her for a "massive toothache." When asked whether she ever gave any of the pills to Main, she stated, "Well, we were getting ready to leave, and so I just handed them to him. I gave the bag to him to hold for me because we were getting ready to leave the apartment. I didn't have no pockets." Roberts testified that the Nazi flag hanging in the bedroom belonged to James Main, Main's uncle and her stepfather, who had recently died.
Roberts could not recall speaking to Sergeant Moss or Deputy Donaldson, she also could not remember whether the latter had asked for her identification. Roberts testified her identification was in a backpack by the front door. Finally, Roberts testified she did not have any felony convictions.
Prosecution's rebuttal
Defense Investigator Perreira testified that he took a statement from Roberts in March 2015. Perreira discussed the gun with Roberts. Roberts told him she had buried the gun in her backyard in Calaveras County but dug it up before she came to Sonora. Roberts also told Perreira that the gun was in the bed in which she and Main were sleeping, in the Sonora apartment. The gun fell off the bed at some point, so, when she woke up, she pushed it under the bed.
Sergeant Moss testified that she spoke to Roberts during the search of the apartment. Moss asked Roberts about the gun. Roberts was "very evasive" and said she obtained the gun from "some guy" in Calaveras County for about $60. Roberts also said she had owned the gun for only about one month. Initially, Roberts acted as though she was unaware that Main was a felon; eventually she admitted she knew he was a felon and, consequently, could not be around firearms. Moss indicated the gun was not checked for fingerprints.
DISCUSSION
I. Sufficiency of evidence as to felon-in-possession-of-firearm conviction
Main argues that his felon-in-possession-of-a-firearm conviction must be reversed because the evidence was insufficient to support a finding that "he had either actual or constructive possession of the gun or that he knew it was there." We reject this contention.
The standard of review for a challenge to the sufficiency of the evidence supporting a conviction is well established:
"'When considering a challenge to the sufficiency of the evidence to support a conviction, we review the entire record in the light most favorable to the judgment to determine whether it contains substantial evidence—that
is, evidence that is reasonable, credible, and of solid value—from which a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] We presume in support of the judgment the existence of every fact the trier of fact reasonably could infer from the evidence. [Citation.] If the circumstances reasonably justify the trier of fact's findings, reversal of the judgment is not warranted simply because the circumstances might also reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither reweighs evidence nor reevaluates a witness's credibility.'" (People v. D'Arcy (2010) 48 Cal.4th 257, 293.)
A judgment will not be set aside unless "'upon no hypothesis whatever is there sufficient substantial evidence to support [the jury's findings].'" (People v. Bolin (1998) 18 Cal.4th 297, 331, quoting People v. Redmond (1969) 71 Cal.2d 745, 755.)
The felon-in-possession-of-a-firearm statute, section 29800, subdivision (a)(1), provides in relevant part: "[a]ny person who has been convicted of a felony ... and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony." To prove a defendant guilty of this offense, the prosecution must establish, beyond a reasonable doubt, that the defendant (1) owned or possessed a firearm; (2) knew that he owned or possessed the firearm; and (3) had previously been convicted of a felony. (People v. Osuna (2014) 225 Cal.App.4th 1020, 1029 [citing the predecessor statute, former § 12021, subd. (a)(1)]; CALCRIM No. 2511.)
To the extent the prosecution's theory was that Main possessed the gun, the applicable elements were physical or constructive possession coupled with knowledge of its presence. (People v. White (2014) 223 Cal.App.4th 512, 524.) "'To establish constructive possession, the prosecution must prove a defendant knowingly exercised a right to control the prohibited item, either directly or through another person.'" (Ibid.) "Possession may be shared with others" but "mere proximity to the weapon, standing alone, is not sufficient evidence of possession." (People v. Sifuentes (2011) 195 Cal.App.4th 1410, 1417.) "The elements of unlawful possession may be established by circumstantial evidence and any reasonable inferences drawn from such evidence." (People v. Williams (1971) 5 Cal.3d 211, 215.)
Here, the jury was free to discredit Roberts's testimony that the gun belonged to her as well as other aspects of her testimony; indeed, Main acknowledges in his brief that "[t]he jury obviously disbelieved Roberts['s] testimony regarding the gun." At the same time, the jury was free to credit evidence suggesting that Main lived at the apartment, which was possibly rented by his mother, Elizabeth Main; that the room where the gun was discovered was his bedroom (given that a picture of Main and his daughter, as well as a flag that coincided with Main's tattoos, were hanging on the wall); that the gun had been in the bed shared by Main and Roberts in that same bedroom; that the gun was barely under the bed as it was found "sitting out" only about a foot or so from the bed's accessible edge; and that the gun was holstered, loaded, and ready to fire. (See, e.g., People v. Vu (2006) 143 Cal.App.4th 1009, 1029 ["The jury is the ultimate judge of credibility. The jury may find a witness is credible in some respects and not in others; it may believe parts of a witness's testimony without believing all of it."].)
Roberts also admitted that she knew that Main, as a felon, was not allowed to own or possess a gun. The jury could thus reasonably infer from Roberts's patently improbable and contradictory testimony that she was deliberately lying to protect Main, who, unlike her, faced severe consequences for possessing a gun as a felon. Such an inference is bolstered by Roberts's spontaneous outburst, directly upon opening the front door to law enforcement, that Main did not have a gun and by the lack of any evidence indicating that Roberts was motivated to protect anyone but Main.
Roberts testified that she did not have any felony convictions.
In sum, upon disbelieving Roberts's testimony that the gun was hers, the jury could reasonably find, based on all of the evidence in the record, that Main had constructive possession of the gun because it was immediately accessible to him, in a place under his dominion and control. (See People v. Newman (1971) 5 Cal.3d 48, 53, disapproved on other grounds by People v. Daniels (1975) 14 Cal.3d 857, 862 [possession may be imputed when the contraband was immediately accessible to defendant and subject to his exclusive or joint dominion and control].)
II. Sufficiency of evidence as to misdemeanor possession of narcotics pipe
Main next contends that his conviction for possession of a narcotics smoking device must be reversed as the evidence is insufficient to support a finding that he possessed the smoking device and/or that he knew of its presence. We are not persuaded.
As stated above, "'[t]he proper test for determining a claim of insufficiency of evidence in a criminal case is whether, on the entire record, a rational trier of fact could find the defendant guilty beyond a reasonable doubt.'" (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.) At the time of Main's trial, Health and Safety Code section 11364.1, subdivision (a) provided, in relevant part: "It is unlawful to possess an opium pipe or any device, contrivance, instrument, or paraphernalia used for unlawfully injecting or smoking (1) a [specified] controlled substance." To prove that a defendant was in possession of a smoking device, the prosecution must establish beyond a reasonable doubt that the defendant (1) unlawfully possessed an object used for smoking controlled substances; (2) defendant knew of the object's presence; and (3) defendant knew it to be an object used for smoking a controlled substance. (CALCRIM No. 2410.) Two people may simultaneously possess an item. (People v. Williams, supra, 5 Cal.3d at p. 215.) Possession may be established by circumstantial evidence and reasonable inferences drawn from such evidence. (Ibid.)
Here, the smoking pipe was found next to the gun, under the bed in the bedroom from which Main emerged. Sergeant Oliver testified the two items were sitting within a foot of each other. If the jury disbelieved Roberts's testimony that the pipe was hers, it could reasonably find, based on all of the evidence in the record, that the pipe was constructively possessed by Main because it was immediately accessible to him, in a place under his dominion and control. (People v. Newman, supra, 5 Cal.3d at p. 53.)
III. Admission of evidence of the Nazi flag
Main contends that the admission of "extremely inflammatory evidence of a Nazi flag" and of Main's "prison and Nazi-oriented tattoos, one of which was a swastika," resulted in a "gross[ly] [unfair]" trial, in violation of his right to due process, requiring reversal of the judgment. Assuming the claim was properly preserved for appeal, it fails on the merits. Here, the challenged evidence was admitted to show that the room in which the gun, narcotics pipe, and hydrocodone pills were found was actually Main's bedroom, over which he had dominion and control, such that he had constructive possession of the contraband discovered in the room. In light of the relevance of the flag and tattoos to a material dispute in the case (i.e., was Main's presence in the room merely incidental or was the room his actual bedroom), and the permissible inferences to be drawn from evidence of these items, their admission did not render Main's trial arbitrary or fundamentally unfair, in violation of his right to due process.
A. Background
Sergeant Oliver testified, without objection, that a Nazi flag was hanging on a wall in the bedroom where the gun and other contraband were found. Subsequently, defense counsel indicated that he "forgot" to object to the Nazi flag reference. Counsel contended, "I don't think anything about the Nazi ... flag should be admitted. The fact that it's in now is fine, but it was in the apartment. [So] to let [the prosecutor] say that it's my client's flag and not anyone else['s] in that apartment I think is prejudicial and it's just pure speculation."
The prosecutor explained his rationale for introducing evidence of the Nazi flag: "As an offer of proof, one of the deputies saw a photo of the defendant with his daughter and the Nazi flag [in the bedroom] and [also observed that Main] has multiple Nazi tattoos on his person. That deputy will testify as to that." The trial court noted, "Seems to me ... if the defendant has Nazi tattoos on his person and there's a Nazi flag in the room, that would be evidence from which the jury could infer that that was the defendant's room." When defense counsel suggested that he had evidence that James Main, defendant's uncle, "was the Nazi who lived there," the court said the defense was free "to put on evidence of that fact." The court concluded that the evidence of the flag and tattoos was admissible as relevant evidence because (1) "[i]t tends to show that [Main] has control over that room or is connected to that room," and (2) it was not being offered for an improper purpose of "just showing that he's a Nazi." The court further found that the evidence was also admissible under Evidence Code section 352 because its probative value was "fairly high in the Court's view" and was not substantially outweighed by the evidence's prejudicial effect. The court also observed that the defense had "other ways" to prove that the room was not, in fact, Main's room, such as by putting "the lease into evidence," among other options.
The court eventually admitted three booking photographs of Main that showed swastika tattoos on his person. Defense counsel again objected that the photographs were irrelevant and highly prejudicial. The court iterated the photographs were relevant because "they tend to tie the defendant to that room." Shortly thereafter, the court made clear again that it "did weigh the prejudicial effect of the photographs versus the probative value." The court noted that "the symbols are clearly very prejudicial" but also found the photographs highly probative given "the nature of the defense here, that ... Main was just visiting and he was only in transit through this place." Noting that the "symbol does tend to show dominion or control over the room," the court concluded that the prejudicial effect of the evidence did not substantially outweigh its probative value.
The prosecutor then asked the court to exclude, as hearsay and lacking foundation, potential testimony from Roberts, Main's girlfriend, to the effect that the flag belonged to Main's uncle. The court rejected the prosecutor's request: "I'm not going to prohibit it, because I can see a lot of ways there's a foundation that she knows that other than hearsay." Ultimately, Roberts testified that the flag belonged to Main's uncle, James Main, who was Roberts's stepfather and who had recently died.
During closing argument, the prosecutor commented on the presence of the Nazi flag in the room and on Main's tattoos:
"Now, who comes out of that room? Only one person comes out of that room. [Main]. In that room is a loaded gun ready to go.
"What else is in that room? A controlled substance, hydrocodone, and a pipe used for the smoking of controlled substances. Those are in that room where he was.
"Now, knowledge, control, possession. You got to know that it's there. You got to have some control over it for possession. So what do you know? Well, depending on how you choose to believe Ms. Roberts, they've been staying there at least two days. She's there and he's there. Nobody else is there. There's a Nazi flag on the wall. And I submit to you that's not a normal thing. That's not a normal thing at all.
"But here's something else that's not normal: This is a tattoo on the side of the defendant's head. This is the tattoo [on] his chest. Now, you've got someone who I submit to you ... has a real big thing for the swastika at least or the Nazis. There's a Nazi flag on the wall and there's a picture of him and his daughter. This isn't somebody that's coming around to do a couple quick loads of laundry and we'll be out of here. This is a person who's staying there and who's got his flag up and got a picture of him and his kid. He's there and he's coming out of that room. Those are things that show that ... control and that possession."
Defense counsel responded:
"[The prosecutor] said they've been in that apartment for some time, but he doesn't know how long. Actually we do. [They] were there for less than two days. We know that because that's the only testimony that you heard. Nothing disputed Miss Roberts['s] testimony that they got there the
day before and went in through the window so she could go in there and do their laundry. That's undisputed.Finally, in rebuttal, the prosecutor argued:
"[The prosecutor] made reference to the fact that my client goes to the apartment and puts up his Nazi flag. There's no evidence that it's my client's Nazi flag. He may have those tattoos and he may have relatives that are fans of Nazism or may be hard-core Nazis, but that doesn't mean he committed a crime that day.
"It is a fact that when the cops were at the door, the first thing Miss Roberts starts talking about is, don't shoot; he doesn't have a gun. Well, just because she says he doesn't have a gun, that doesn't mean that Miss Roberts doesn't know that there's a gun in the apartment. She knows there's a gun in the apartment.
"We talked about in the instructions if a person has control over an item or the right to control it. My client is visiting a relative's apartment. He has no right to go through all the boxes and everything else in that house just like if he went into a hotel room, he wouldn't look under the bed. He didn't look under the bed in that apartment. There's no proof that my client ever held this gun, possessed it, nor controlled it. There's no proof that he had any knowledge that that gun made it to the apartment. That's just all speculation on the People's part."
"How about how reasonable [Roberts's] story is? ... She wants you to believe that when she was twelve, something bad happened. I'm not here to say if it did happen or didn't happen. She bumps into him and she wants a gun to protect herself from him. Okay. I mean, I can see that. She wants that protection so much that she buries the gun and can't remember where she buries the gun. She buried the gun five feet under the ground. This isn't a gun you need for protection. I submit to you, ladies and gentlemen of the jury, all that didn't happen. He has a very big affinity. You put a big swastika on your chest like that, that means you really like whatever that -that's a big important thing to you. And it happens that there's that flag.
"Now, where's the mom to corroborate all of this? Apparently she lives around here. She didn't come in to tell you this story.
"Then Miss Roberts breaks into the house through the window. Don't you think neighbors might go, that's kind of a weird thing of this
woman climbing into an apartment. The only proof that you have that that exists is her word to you. That's all you have. So if you don't believe her story that they aren't living there and they are staying there, are you going to believe they came from the Black Bart Motel in San Andreas to come do laundry? I'll bet there's a laundromat within, say, a thousand yards of Black Bart, but she's asking you to believe they came all the way over here just to do laundry.
"Then we have her uncle who has the same last name who's now dead for three or four months happens to have a Nazi flag and he's got Nazi stuff all over. During the search, what comes out of the bedroom and underneath that bed is a gun. And, of course, she's telling you the gun fell out of the bed. I slid the gun under the bed. I don't know if we brought her back and asked her a third time, you might get a third story. Look at her story extremely, extremely carefully....
"So you have him in the room with that gun for at least two days with pills and with a pipe."
B. Analysis
"[T]he admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair." (People v. Partida (2005) 37 Cal.4th 428, 439, italics in original; see Estelle v. McGuire (1991) 502 U.S. 62, 70.) "To determine whether an evidentiary ruling denied defendant due process of law, 'the presence or absence of a state law violation is largely beside the point' because 'failure to comply with the state's rules of evidence is neither a necessary nor a sufficient basis' for granting relief on federal due process grounds." (People v. Albarran (2007) 149 Cal.App.4th 214, 229.) "'Only if there are no permissible inferences the jury may draw from the evidence can its admission violate due process. Even then, the evidence must "be of such quality as necessarily prevents a fair trial." [Citations.] Only under such circumstances can it be inferred that the jury must have used the evidence for an improper purpose.' [Citation.] 'The dispositive issue is ... whether the trial court committed an error which rendered the trial "so 'arbitrary and fundamentally unfair' that it violated federal due process."'" (Id. at pp. 229-230.)
Admission of the evidence of the Nazi flag and Main's related tattoos did not render his trial arbitrary and fundamentally unfair. First, the court properly exercised its discretion under Evidence Code section 352 in admitting the evidence of the Nazi flag and swastika tattoos on defendant's person. The court acknowledged that the evidence was highly prejudicial but, considering it in the context of the case, concluded that its prejudicial effect did not substantially outweigh its probative value. The trial court correctly reasoned that the evidence was relevant to material disputes in the case and the trier of fact could draw permissible inferences from the evidence in resolving these disputes. Specifically, the Nazi flag and related tattoos on Main's person were relevant to the question whether Main had dominion and control over the bedroom where the gun, narcotics pipe, and hydrocodone pills were discovered. The court admitted the evidence in light of its relevance to this question and the prosecutor argued, with reference to this and other evidence, that the room in question was defendant's bedroom. (Cf. People v. Albarran, supra, 149 Cal.App.4th at pp. 230-231 [due process violated where inflammatory gang evidence "had no legitimate purpose" and "could only have served to cloud [the jury's] resolution of the issues"].)
It also bears mention that the issue in this case was possession of contraband rather than, for example, a racially-motivated assault. Further, the evidence in question reflected defendant's ideology, not conduct in furtherance of that ideology. These factors limited the inflammatory effect of the challenged evidence. (See People v. Bivert (2011) 52 Cal.4th 96, 118 [in homicide case, evidence of the defendant's white supremacist ideology was not so inflammatory as to invite irrational response from jury where this evidence "was limited to (the defendant's) philosophy rather than any conduct in conformity with it"].)
We conclude that, under the applicable circumstances, the admission of the evidence of the Nazi flag and related tattoos on defendant's person did not result in a violation of due process.
IV.Recidivist sentence enhancement based on defendant's prior "mayhem" adjudication
The operative information alleged that defendant had suffered a prior juvenile adjudication in 1995 that constituted a strike for sentencing purposes. (§ 667, subds. (b)-(i).) Under section 667, subdivision (d)(3)(A), a juvenile adjudication only constitutes a strike if the underlying juvenile "offense" was "committed" when the juvenile was "16 years of age or older." Main argues the evidence was insufficient to show he was at least 16 years old when he committed the applicable juvenile offense and, in turn, to support the trial court's finding that the prior juvenile adjudication constituted a strike for sentencing purposes.
We are persuaded that the record does not disclose substantial evidence to support a finding that Main was at least 16 years old when he committed the applicable juvenile offense that was the subject of the 1995 juvenile adjudication alleged to be a strike.
Based on our conclusion, we strike the court's true finding on the sentence-enhancement allegation and remand the matter for retrial on the allegation and/or resentencing.
"The People must prove all elements of an alleged sentence enhancement beyond a reasonable doubt." (People v. Miles (2008) 43 Cal.4th 1074, 1082.) "On review, we examine the record in the light most favorable to the judgment to ascertain whether it is supported by substantial evidence. In other words, we determine whether a rational trier of fact could have found that the prosecution sustained its burden of proving the elements of the sentence enhancement beyond a reasonable doubt." (People v. Delgado (2008) 43 Cal.4th 1059, 1067; People v. Saez (2015) 237 Cal.App.4th 1177, 1189.) Here, our inquiry focuses on whether substantial evidence supports the trial court's determination that Main was at least 16 years old when he committed the juvenile offense and, in turn, whether the prior juvenile adjudication constituted a strike pursuant to section 667, subdivision (d)(3)(A).
Section 667, subdivision (d)(3) provides:
A prior juvenile adjudication shall constitute a prior serious and/or violent felony conviction for purposes of sentence enhancement if:
(A) The juvenile was 16 years of age or older at the time he or she committed the prior offense.
(B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a serious and/or violent felony.
(C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law.
(D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.
The juvenile offense at issue, aggravated mayhem, as described in section 205, is one of the offenses listed in Welfare and Institutions Code section 707, subdivision (b).
"Each paragraph [of section 667, subdivision (d)(3)] sets forth a necessary circumstance" for a prior juvenile adjudication to qualify as a prior serious or violent felony within the meaning of the three strikes law. (People v. Garcia (1999) 21 Cal.4th 1, 6.)
Here, the information specified that on March 1, 1995, Main suffered a juvenile adjudication pursuant to sections "205/245" that constituted a "serious or violent felony" for purposes of the three strikes law. (§ 667, subds. (b)-(i).) Outside the presence of the jury, Main admitted he had suffered this adjudication. The trial court subsequently conducted a bench trial to determine whether the adjudication for aggravated mayhem (§ 205) and assault with a deadly weapon or force likely to produce great bodily injury (§ 245) constituted a strike for sentencing purposes. The court focused on the adjudication for aggravated mayhem in its analysis.
The prosecutor adduced documentary evidence to show that the prior mayhem adjudication was a strike. This evidence consisted of:
(1) Main's section 969b packet from the Department of Corrections and Rehabilitation, which included abstracts of judgment from a prior 1998 San Joaquin County conviction and a prior 2012 Calaveras County conviction. (People's Exh. 1.)
(2) The criminal complaint filed in the 1998 San Joaquin County case (this complaint alleged, as a strike enhancement, that on March 1, 1995, Main had suffered a prior juvenile adjudication for "aggravated mayhem/assault w/deadly weapon/GBI"). (People's Exh. 2.)
(3) The criminal complaint filed in the 2012 Calaveras County case (this complaint alleged, as a strike enhancement, that on June 13, 1995, Main had suffered a prior juvenile adjudication for aggravated mayhem). (People's Exh. 3.)
(4) A minute order (dated June 18, 2012) from the 2012 Calaveras County case (this minute order included a notation stating that Main had admitted the prior strike
alleged in that case, i.e., a juvenile adjudication for aggravated mayhem from June 13, 1995). (People's Exh. 3.)
Section 969b provides, in relevant part: "For the purpose of establishing prima facie evidence of the fact that a person being tried for a crime or public offense under the laws of this State has been convicted of an act punishable by imprisonment in a state prison, county jail or city jail of this State, and has served a term therefor in any penal institution ... the records or copies of records of any state penitentiary, reformatory, county jail, city jail, or federal penitentiary in which such person has been imprisoned, when such records or copies thereof have been certified by the official custodian of such records, may be introduced as such evidence."
California law specifies that in determining whether a defendant is subject to increased punishment on the basis of a prior conviction, "the inquiry is a limited one and must be based upon the record of the prior criminal proceeding, with a focus on the elements of the offense of which the defendant was convicted." (People v. McGee (2006) 38 Cal.4th 682, 706 (McGee).) "If the enumeration of the elements of the offense does not resolve the issue, an examination of the record of the earlier criminal proceeding is required ...." (Id. at p. 706.) Such an examination "is strictly limited to a review and interpretation of documents that are part of the record of the prior criminal proceeding." (Id. at p. 685; see People v. Woodell (1998) 17 Cal.4th 448, 452 (Woodell) ["'in determining the truth of a prior-conviction allegation, the trier of fact may look to the entire record of conviction' but ... 'no further'"].) The "record of conviction" of the applicable prior proceeding contains documents that may properly be included in the record on appeal as well as appellate court documents up to imposition of final judgment. (Woodell, supra, at p. 455.) The trial court must "determine whether that record is sufficient to demonstrate that the conviction is of the type that subjects the defendant to increased punishment under California law." (McGee, supra, at p. 706, italics omitted.)
Here, the trial court relied on the records from defendant's unrelated 2012 Calaveras County and 1998 San Joaquin County cases, as well as from his 969b packet, in order to find that the prior 1995 juvenile adjudication qualified as a strike for sentencing purposes. For example, the court ascertained Main's birthdate of May 4, 1978, from his section 969b packet. Next, with reference to the minute order from the 2012 Calaveras County case, the court noted that Main had previously "admitted he suffered 205 Juvenile Adjudication on March 1st of 1995." Based on this information, the court concluded that Main was over the age of 16 at the time he suffered the 1995 juvenile adjudication. Main correctly points out that the court erroneously focused on the date of the juvenile adjudication, not the date of commission of the underlying juvenile offense, which is the operative date for purposes of section 667, subdivision (d)(3).
Because the information in the 2012 case alleged, as a strike enhancement, that Main had suffered a prior "adjudication on or about June 13, 1995," Main's admission in that case related to an adjudication from June 13, 1995—not March 1, 1995, as the trial court erroneously stated.
The People counter that when the prosecutor and the court were discussing defendant's age in relation to the prior juvenile adjudication, the defendant interjected, "I was sixteen." However, given that defendant simply interjected himself into the discussion and was not answering a precise question, it is not clear whether defendant was referring to his age at the time of the adjudication or his age at the time he committed the underlying offense. In sum, the People have not established that defendant's random interjection may serve as substantial evidence to show that defendant was at least 16 years old when he committed the juvenile offense.
The People also refer to a letter submitted by defendant to the trial court after the trial court had determined that his juvenile adjudication was a strike for sentencing purposes. In the letter, defendant stated: "The strike being used to double my base term was 20 [years] ago [and] I was 16 [years] old." Once again, defendant's statement in this letter does not clarify whether he was referring to his age at the time of the offense or of the related adjudication. In any event, defendant sent the letter to the court after the court made the relevant sentencing determination. (See People v. Trujillo (2006) 40 Cal.4th 165, 180 [admissions made after acceptance of plea do not reflect the facts upon which defendant was convicted].)
The court further concluded, again relying on the minute order from the 2012 Calaveras County case, that:
This minute order, dated June 18, 2012, included a notation stating that Main had admitted the strike prior alleged in that case.
"I can assume because [Main] admitted [the juvenile] strike, he admitted that the prior conviction qualifies. [¶] So I'm going to find that his prior admission [in the 2012 case] is admissible as a declaration against interest to that [section] 667[, subdivision (d)(3) allegation]."
The records adduced by the People and relied on by the court, i.e., the complaints, minute orders, and abstracts of judgments from defendant's unrelated 1998 and 2012 cases, were clearly outside the record of conviction of the 1995 juvenile adjudication on which the instant sentence-enhancement allegation was based. (See, e.g., Woodell, supra, 17 Cal.4th at pp. 454-457; McGee, supra, 38 Cal.4th at pp. 691-692.) The court's true finding on the instant enhancement allegation thus involved impermissible judicial factfinding. As noted above, under McGee, the trial court "is strictly limited to a review and interpretation of documents that are part of the record of the prior criminal proceeding" at issue in the enhancement. (McGee, supra, at p. 685.) Furthermore, there simply was no substantial evidence, even were the court empowered to consider the documents adduced by the People, that the defendant was at least 16 years of age at the time of commission of the juvenile prior, as required by section 667, subdivision (d)(3)(A). The trial court's true finding on the recidivist sentence enhancement is, therefore, not supported by substantial evidence.
The People have requested that "if the minute orders, complaints, and admissions" from unrelated cases relied on by the trial court may not be deemed part of the record of the juvenile adjudication at issue here, "the matter should be remanded for retrial on the validity of the prior juvenile adjudication." Accordingly, we remand the matter for retrial and/or resentencing on the recidivist sentence enhancement alleged in the information. (See People v. Barragan (2004) 32 Cal.4th 236, 239, 241-242 [double jeopardy clause does not bar retrial of prior conviction allegation after appellate finding of evidentiary insufficiency].)
To the extent the People elect to retry this sentence-enhancement allegation, retrial proceedings must comply with Descamps v. United States (2013) 133 S.Ct. 2276 (Descamps). Since the parties did not raise or address Descamps in the instant appeal, we note simply that Descamps holds that judicial factfinding beyond facts implied by the elements of the prior offense is incompatible with the Sixth Amendment right to a jury trial. (See, e.g., People v. Navarette (2016) 4 Cal.App.5th 829; People v. Eslava (2016) 5 Cal.App.5th 498, review granted Feb. 15, 2017, S239061; People v. McCaw (2016) 1 Cal.App.5th 471, 484, review granted Oct. 19, 2016, S236618; People v. Denard (2015) 242 Cal.App.4th 1012, 1030-1034; People v. Marin (2015) 240 Cal.App.4th 1344, 1363; People v. Saez, supra, 237 Cal.App.4th at pp. 1196-1197, 1205-1208.) In any event, here it is appropriate for the trial court to apply Descamps in the first instance, as the People bear the burden of proving the sentence enhancement and the trial court can address the issue in light of the specific elections made by the People on remand.
DISPOSITION
The trial court's true finding on the sentence-enhancement allegation under section 667, subdivisions (b)-(i), is stricken and defendant's sentence is vacated. The matter is remanded for retrial of this allegation and/or resentencing. The judgment is affirmed in all other respects.
/s/_________
SMITH, J WE CONCUR: /s/_________
DETJEN, Acting P.J. /s/_________
PEÑA, J.