Opinion
E071799
06-17-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES ESKER MORRIS, Defendant and Appellant.
Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV17001689) OPINION APPEAL from the Superior Court of San Bernardino County. Michael R. Libutti and Jon D. Ferguson, Judges. Affirmed with directions. Mark D. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.
A jury found defendant and appellant James Esker Morris guilty of (1) being a felon in possession of a firearm (Pen. Code, § 29800, subd. (a)(1)); and (2) intimidating a witness by force or threat of force (§ 137, subd. (b)). The jury found true the allegation that defendant intimidated the witness in order to benefit a criminal street gang. (§ 186.22, subd. (b).) The trial court found true the allegations that defendant suffered (A) a prior serious felony conviction (§ 667, subd. (a)(1)); (B) a prior strike conviction (§ 1170.12, subds. (a)-(d)); and (C) three prior convictions for which defendant served prison terms (§ 667.5, subd. (b)). The trial court sentenced defendant to prison for a term of 21 years, four months.
All subsequent statutory references will be to the Penal Code unless otherwise indicated.
Defendant's sentence consisted of: (1) eight years for intimidating a witness; (2) four years for the gang enhancement; (3) 16 months for the firearm offense; (4) five years for the prior serious felony; and (5) three years for the prison priors.
Defendant raises four issues on appeal. First, defendant contends his conviction for intimidating a witness is not supported by substantial evidence. Second, defendant asserts the gang enhancement is not supported by substantial evidence. Third, defendant contends the trial court violated his constitutional rights by denying his request to be self-represented. Fourth, defendant contends the three one-year prison terms for his prison priors (§ 667.5, subd. (b)) should be stricken. We strike the one-year sentences for the prison priors and provide directions, but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL HISTORY
On April 23, 2017, defendant and Eli Rios (Rios) were in a car together. Defendant was driving from a restaurant to Rios's home. Inside the car, Rios had two containers of food from the restaurant. During the drive, Ontario Police Officer Brandon Schnebly drove behind defendant's vehicle, turned on the police vehicle's flashing lights and "hit the siren."
Defendant told Rios he was not stopping because defendant had a gun in the vehicle and defendant had strike convictions. Defendant placed the firearm on the vehicle's center console. Defendant gave Rios two options: (1) Rios taking the firearm, exiting the vehicle, and running; or (2) Rios participating in a vehicular police chase. Rios picked up the firearm, but was unable to exit the vehicle due to the child locks on the doors. When Rios discovered he could not exit the vehicle, he told defendant to stop. Rios placed the firearm in one of the food containers. Defendant stopped the vehicle. Ontario Police Officer Schnebly approached defendant, who was in the driver's seat. Defendant told the officer that he was on probation. The officer searched the vehicle and found the firearm.
Defendant and Rios were booked into the West Valley Detention Center. On April 26, defendant and Rios were in a holding cell together, at the detention center, waiting to be arraigned via video. While in the holding cell, defendant said to Rios, "I told you I have strikes, I need you to take this one for me." Rios understood the statement as defendant wanting Rios to "take the blame for the gun." Rios refused, explaining that he would suffer immigration consequences for a firearm offense. Defendant again said he wanted Rios to say the gun belonged to Rios.
Rios and defendant were then taken to the arraignment area and arraigned together. During the arraignment, Rios did not tell the judge that the gun belonged to Rios. After the arraignment, Rios and defendant were returned to the holding cell. Defendant was "really upset." Defendant asked Rios, "[H]ow come you didn't do it?" Rios explained that there was no opportunity during the arraignment to make a statement. Defendant said to Rios, "[C]ome here." Another person in the holding cell pushed Rios toward defendant. Defendant punched Rios twice on his face and twice on his abdomen. Rios bled from his mouth. Defendant said to Rios, "This is what you get, you know. Understand what I want. How come—why didn't you do it?" Defendant also told Rios, "[T]his is going to keep happening, you know, until you do what you—what I ask you to do."
Rios did not defend himself when defendant attacked him because, in jail, if a person fights with a gang member, then any nearby gang members will join the fight to fight alongside the gang member. Defendant was a member of the Black Angels, within the Southside Onterio gang.
On May 3, 2017, defendant, Rios, and other inmates were in a holding cell waiting to be transported to the courthouse. Defendant was in the back of the holding cell with other gang members when he called Rios over to him. Defendant asked Rios, "[S]o what are you going to do today?" Rios responded, "[W]ell, I guess, I have no options." Defendant replied, "[A]ll right. I hope, you know, like, you get—you do what you say you're going to do, so, we could, you know, get this over with."
While in the holding cell at the courthouse, defendant told Rios to "get up on the stand" and say "loud and clear" that "the gun was mine. That it wasn't his." Rios said, "[A]ll right." At the hearing, Rios asked his attorney about pleading guilty so as to have the case against defendant dismissed. Rios also handed his attorney a note that read, "[P]lease help me, because I'm being forced to actually take this gun."
At the moment Rios gave the note to his attorney, defendant learned that, at the police station, Rios had told the police the gun belonged to defendant. Rios was scared upon learning that defendant was aware of Rios's statement. Rios was scared because he feared being physically attacked upon returning to jail. Rios's attorney said he would tell the deputies of Rios's fear and that Rios should also tell the deputies. After that, Rios was removed from the jail's general population. Rios was placed in the protective custody unit, which involved having cellmates. It was determined that Rios "wasn't going to be safe in there either." Rios was then moved to the administrative segregation unit, which contains four single-person cells and involves "no contact with nobody else whatsoever."
DISCUSSION
A. SUBSTANTIAL EVIDENCE
1. STANDARD OF REVIEW
" '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.] In so doing, a reviewing court 'presumes in support of the judgment the existence of every fact the trier [of fact] could reasonably deduce from the evidence.' " (People v. Powell (2018) 5 Cal.5th 921, 944.)
2. INTIMIDATING A WITNESS
Defendant contends substantial evidence does not support his conviction for intimidating a witness because defendant did not intend to force Rios to give false information to a law enforcement official; rather, defendant intended for Rios to give false information to a judge.
" '[I]ntent . . . is rarely susceptible of direct proof and generally must be established by circumstantial evidence and the reasonable inferences to which it gives rise.' " (People v. Jaska (2011) 194 Cal.App.4th 971, 984.) " 'Although it is the jury's duty to acquit a defendant if it finds the circumstantial evidence susceptible of two reasonable interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court that must be convinced of the defendant's guilt beyond a reasonable doubt. [Citation.]' [Citation.] Where the circumstances reasonably justify the trier of fact's findings, a reviewing court's conclusion the circumstances might also reasonably be reconciled with a contrary finding does not warrant the judgment's reversal." (People v. Zamudio (2008) 43 Cal.4th 327, 357-358.)
The relevant statute provides, "Every person who attempts by force or threat of force or by the use of fraud to induce any person to give false testimony or withhold true testimony or to give false material information pertaining to a crime to, or withhold true material information pertaining to a crime from, a law enforcement official is guilty of a felony." (§ 137, subd. (b).) The term " 'law enforcement official' includes any district attorney, deputy district attorney." (§ 137, subd. (e).)
Rios testified that, on May 3, 2017, defendant told Rios that, when Rios was in court, Rios should "get up on the stand" and say "loud and clear" that "the gun was mine. That it wasn't his." One could infer that defendant wanted Rios to speak "loud and clear" from "the stand" because there would be more people than the judge in the courtroom, and defendant wanted everyone to hear Rios's statement.
If Rios followed through on defendant's instruction, then the statement would have been made during an open hearing concerning the scheduling of court dates. Robert Bulloch, a supervising deputy district attorney for San Bernardino County, testified at defendant's trial. Bulloch explained that prosecutors are present at prepreliminary hearings when the court schedules the date for the preliminary hearing.
While in the car, defendant told Rios he was not stopping because defendant had a gun in the vehicle and defendant had strike convictions. One could reasonably infer from defendant's criminal history that defendant has some familiarity with criminal court proceedings. One could then reason that (1) if prosecutors are present at prepreliminary hearings, and (2) defendant has some familiarity with criminal proceedings, then defendant would have expected the prosecutor to be present in the courtroom if Rios were to speak "loud and clear" from "the stand." Thus, there is substantial circumstantial evidence that defendant intended for Rios's statement to be made to a law enforcement official.
3. GANG ENHANCEMENT
Defendant contends substantial evidence does not support the finding that he intimidated Rios with the specific intent to promote, further, or assist in any criminal conduct by gang members.
The relevant statute provides, "[A]ny person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted, be punished as follows." (§ 186.22, subd. (b).)
There are two ways in which one could reach the conclusion that defendant intimidated Rios to benefit a criminal street gang. First, one could conclude that defendant intimidated Rios in order to not be imprisoned so that defendant could be free to direct his gang's criminal activity. Second, one could conclude defendant intimidated Rios in order to generate fear of his gang so that people would submit to the gang's criminal acts.
We discuss the evidence supporting the first theory. Defendant told Rios that he wanted Rios to be solely liable for the firearm because defendant had prior strike convictions. One could reasonably infer from that evidence that defendant's intent in intimidating Rios was to avoid a prison sentence.
Defendant is a member of the Black Angels, within the Southside Onterio gang. The Southside Onterio gang has three levels of hierarchy. The top tier of the hierarchy is the group known as the Black Angels. The Black Angels "are the leaders of the gang. Those are the shot-callers. Those are the ones that collect taxes for the gang, and those are the ones that give directions to the newer and lower-ranking members within the gang." The higher a person is in the gang hierarchy, the more fear the person tends to evoke in others due to the likelihood that the person has committed violent crimes.
City of Ontario Police Officer Kyle Mena explained that if a person is a high-ranking member of a gang, he will be able to coerce others to commit crimes for the gang. Therefore, if that high-ranking member is "on the street, not incarcerated," then he can benefit the gang by forcing others to commit crimes that will make money for the gang. One could conclude from the foregoing evidence that part of defendant's reason for not wanting a prison sentence was so that he could be "on the street" coercing others to commit crimes to benefit the gang. In other words, defendant intimidated Rios in order to not be incarcerated, and defendant did not want to be incarcerated because he wanted to be available to force others to commit crimes to benefit the gang. Therefore, one could reasonably conclude that defendant intimidated Rios with the "specific intent to promote, further, or assist in any criminal conduct by gang members." (§ 186.22, subd. (b).)
We now address the second theory by which one could conclude the gang enhancement was proven. Officer Mena searched the vehicle of another Onterio Southside gang member, Elias C. During the search, Officer Mena found a kite, i.e., a small piece of paper with a message, from defendant to Elias C.
The kite read, in relevant part, "This bitch ass paisa was supposed to take the rap for—he was supposed to run with it and his clavo accepted it in his hand and then bitched out. Put everything in the fast food under his seat. . . . I fucked him up at video court, so he had to pull his cheek out of his teeth and popped his jaw back in place. [¶] So I told him every time we go to court, this is going to happen until he grabs his balls and makes it right. He's with somebody, so I'll . . . do to-do (sic) on my own because I'll probably get in trouble. But fuck it, this paisa can't think he can do whatever he wants just because of this or that."
"[P]iasa is a term used to describe Hispanic people that are generally born outside of the country."
While defendant's initial intent in intimidating Rios may have been to prevent himself from going jail, it can be inferred from the kite that defendant's intent evolved. When Rios defied defendant at the video arraignment by failing to announce his guilt, defendant felt the need to intimidate Rios so that Rios would not "think he can do whatever he wants." One can reasonably understand defendant's kite as reflecting an intent to intimidate Rios so that Rios, and others, would understand that they have to obey Southside Onterio gang members. Southside Onterio's primary activities are drug dealing, homicide, and theft. Therefore, intimidating Rios so that he would not "think he can do whatever he wants" would assist other Southside Onterio gang members when committing thefts and drug deals because the people involved in those acts would be less likely to object or report the crimes if they know they cannot "do what [they] want" when faced with a Southside Onterio gang member.
News of defendant's intimidation of Rios would spread to others in the community via messages such as the kite, in which defendant wrote, "I fucked him up at video court, so he had to pull his cheek out of his teeth and popped his jaw back in place." In sum, one could reasonably conclude from the evidence that defendant intended to intimidate Rios so that people would not harbor a belief that they could disobey Southside Onterio members, which would benefit the gang by causing people to submit to the gang's criminal activities. Therefore, there is substantial evidence reflecting defendant intimidated Rios with the specific intent to promote, further or assist in criminal conduct by gang members. (§ 186.22, subd. (b).)
Defendant contends the evidence is insufficient because it does not indicate that he intended to promote or assist criminal conduct by gang members, with the focus of the argument being on the criminal conduct aspect. Officer Mena explained that the gang's primary activities are drug dealing, homicide, and theft. Thus, one can reasonably infer that if defendant intended to assist the gang, then he intended to assist the gang in its primary activities, which were crimes. Accordingly, we find defendant's argument to be unpersuasive.
Defendant contends Officer Mena speculated that defendant would instruct others to commit crimes if defendant were not imprisoned. Defendant asserts that without a statement by defendant concerning his intent, there is not substantial evidence. " ' "Evidence of specific intent is rarely proved with direct evidence; rather, ' "such intent must usually be inferred from all of the facts and circumstances disclosed by the evidence." ' " (People v. Shivers (2015) 235 Cal.App.4th Supp. 8, 14; see also People v. Misa (2006) 140 Cal.App.4th 837, 843.)
The circumstantial evidence that defendant would encourage others to commit crimes if defendant were not imprisoned was reflected by (1) defendant being a member of the Black Angels, which is the level of Southside Onterio that directs others to commit crimes; and (2) the primary activities of the gang being crimes. One could reasonably infer from that evidence that if defendant were not imprisoned, then he would be directing members of Southside Onterio to commit crimes that benefit the gang. Therefore, we conclude substantial evidence supports the enhancement finding.
B. SELF-REPRESENTATION
1. PROCEDURAL HISTORY
The complaint against defendant was filed on April 24, 2017. On August 3, 2017, at the prepreliminary hearing, the following exchange occurred:
"[Defense counsel]: Judge, we currently have a preliminary hearing set for August 10th. [Defendant], although, represented to me this morning that he wishes to go pro per.
"The Court: This case has been going on awhile and the prelim is already set for 8-10. So, I'm going to set it for prelim on 8-10, R8. [¶] Defendant I note had the public defender for some time then conflict panel—private, conflict panel and it's just on the eve of prelim that he's asking to be his own attorney and I'm finding it to be late in the game, not timely and I will put it on for the prelim, R8, and he can renew his request with the preliminary hearing judge."
2. ANALYSIS
Defendant contends the trial court erred by denying his motion to be self-represented.
"Generally, '[a] trial court must grant a defendant's request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial.' " (People v. Tena (2007) 156 Cal.App.4th 598, 604-605.) We apply the de novo standard of review. (People v. Dent (2003) 30 Cal.4th 213, 218, 221-222.)
The trial court found defendant's request was untimely because it was on the eve of the preliminary hearing. Therefore, we focus on the issue of timeliness. The trial court failed to ask defendant if he would need a continuance or if he would be ready to proceed with the preliminary hearing on August 10, as scheduled. The trial court's presumption that defendant would not be prepared to proceed on August 10 is troublesome because the result of the presumption is that the record contains no support for the trial court's conclusion that the request was untimely. If the trial court had inquired about defendant's readiness to proceed, and if defendant said, on August 3, that he would be ready on August 10, then defendant's motion would have been timely. We do not know if defendant was ready to proceed because the trial court denied the request without inquiring. Therefore, we must conclude the trial court erred. (See People v. Rivers (1993) 20 Cal.App.4th 1040, 1047 ["Without discussion or inquiry, the [trial] court denied the request as untimely. This was error"].)
The People assert that defendant's "failure to renew his request constituted an abandonment of the request and his claim should be denied." In People v. Kenner the appellate court wrote, "Defendants who sincerely seek to represent themselves have a responsibility to speak up. The world of the trial court is busy and hectic, and it is to be expected that occasionally a court may omit to rule on a motion. When that happens, as here, we believe it is reasonable to require the defendant who wants to take on the task of self-representation to remind the court of the pending motion. Therefore we hold that on this record, where appellant had both time and opportunity to follow up on his request for a hearing on his Faretta motion, and failed to do so, he must be deemed to have abandoned or withdrawn that motion" (People v. Kenner (1990) 223 Cal.App.3d 56, 62.)
At the prepreliminary hearing, defense counsel said, "[Defendant], although, represented to me this morning that he wishes to go pro per." The trial court denied the request for self-representation due to it being untimely. Defendant's request was made and immediately denied by the court. This is not a situation in which there was a pending motion that was not ruled upon and forgotten. There is no indication that defendant abandoned the request because the trial court immediately ruled upon the request.
The People discuss abandonment in the context of defendant failing to renew his request after it was denied. The trial court's denial of defendant's request is the focus of our discussion ante; we do not focus on the failure to renew the motion. We made the denial of the motion the focus of our discussion because, in defendant's Appellant's Opening Brief, he asserted, "In sum, the trial court erred by denying [defendant's] timely and unequivocal request to represent himself." Because defendant focused on the denial of his request at the prepreliminary hearing, that is the focus of our discussion ante. Within that context, we are not persuaded that defendant abandoned his request in the trial court because the denial occurred immediately after the request was made.
We now turn to the issue of prejudice. At the preliminary hearing, defendant did not renew his request to be self-represented despite the trial court denying defendant's request without prejudice to defendant raising the request again at the preliminary hearing. Because defendant did not renew his request, we will examine the narrow issue of whether it was harmless beyond a reasonable doubt that the trial court denied defendant's request to be self-represented for the prepreliminary hearing and preliminary hearing. (People v. Burgener (2009) 46 Cal.4th 231, 243-245; People v. Tena, supra, 156 Cal.App.4th at pp. 612-613.) In order to demonstrate prejudice from errors at the preliminary hearing, a defendant must "show that he was deprived of a fair trial or otherwise suffered prejudice as a result of the error at the preliminary examination." (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529.)
Defendant does not demonstrate error. Rather, defendant asserts the error is reversible per se. Our Supreme Court has held the error is not reversible per se. Our Supreme Court has written, "Moreover, our resolution is consistent with the United States Supreme Court's treatment of constitutional error at the preliminary examination. Thus, even in a situation as extreme as the denial of counsel, the U.S. Supreme Court has held that the harmless error rule is applicable." (People v. Pompa-Ortiz, supra, 27 Cal.3d at p. 530; see also People v. Burgener, supra, 46 Cal.4th at pp. 243-245.) Because defendant does not demonstrate what he would have done differently than the attorney who represented him at the prepreliminary hearing and the preliminary hearing, we conclude the error was harmless.
C. PRISON SENTENCE
1. PROCEDURAL HISTORY
The trial court found defendant suffered four prior convictions for which he served prison sentences. (§ 667.5, subd. (b).) At sentencing, the trial court noted that one of the prison priors would now qualify as a misdemeanor. The People moved to strike the prison prior, and the court granted that motion. The trial court imposed one-year prison terms for each of the three remaining prison priors, i.e., a total of three years for the prison priors.
2. ANALYSIS
Effective January 1, 2020, section 667.5, subdivision (b), was amended to read, "[T]he court shall impose a one-year term for each prior separate prison term for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code . . . ." Prior to January 1, 2020, a one-year prison term was mandatory for "each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 . . . ." (Prior § 667.5, subd. (b) [ver. eff. Jan 1, 2019].) In other words, the law has changed so that now, a one-year prison sentence is only imposed when the prison prior was for a sexually violent offense. (People v. Jennings (2019) 42 Cal.App.5th 664, 681.)
Defendant contends this court should strike the three one-year prison terms because his prison priors are not for sexual offenses. The People concede the prison priors should be stricken, but request that the trial court be permitted to resentence defendant so that it may "restructure his sentence to take into consideration the fact that the three prison priors are no longer valid."
The legislative purpose in amending section 667.5, subdivision (b), was to address the law's "costly and ineffective 1-year sentence enhancement . . . . [¶] . . . Given that this 1-year enhancement is commonly used, the Department of Finance projects that repealing this single enhancement will save California tax payers tens of millions [of] dollars each year." (Sen. Rules Com., Off. Of Sen. Floor Analyses, Unfinished Business of Sen. Bill 136 (2019-2020 Reg. Sess.) version date Sept. 13, 2019, comments pp. 5-6.) If we permit the trial court to (1) figure out what the sentence would be with the prison priors, and then (2) work backwards to achieve a similar sentence without any prison priors, then we will have actively evaded the Legislature's goal in changing the law.
Moreover, the trial court imposed the upper terms for the crime of intimidating a witness (§ 137, subd. (b)) and the associated gang enhancement (§ 186.22, subd. (b)(1)(A)). The trial court imposed one-third the midterm for the firearm offense. (§§ 18, subd. (a) & 29800, subd. (a)(1).) The People fail to explain why the trial court should impose the upper term for the firearm offense, if this court were to send the matter back for resentencing. For the foregoing reasons, we decline the People's request for the trial court to resentence defendant. We will strike the one-year terms for the three prison priors (§ 667.5, subd. (b)).
DISPOSITION
The three one-year prison terms for the three prison priors (§ 667.5, subd. (b)) are stricken. The trial court is directed to amend the abstract of judgment to reflect the total prison sentence is 18 years four months. The trial court is further directed to prepare an amended abstract of judgment and to forward a certified copy of the amended abstract to the Department of Corrections and Rehabilitation. (Pen. Code, §§ 1213, 1216.) In all other respects, the judgment is affirmed.
The current abstract of judgment omits the number of years imposed for the gang enhancement, which was four years. (§ 186.22, subd. (b).) The trial court should correct that omission when amending the abstract of judgment. --------
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J. We concur: McKINSTER
Acting P. J. CODRINGTON
J.