Opinion
D073708
08-30-2018
THE PEOPLE, Plaintiff and Respondent, v. KORY JON PENN, Defendant and Appellant.
Mark D. Johnson, under appointment by Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorney 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIF1500175) APPEAL from a judgment of the Superior Court of Riverside County, Steven Counelis, Judge. Affirmed as modified. Mark D. Johnson, under appointment by Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sharon L. Rhodes, Deputy Attorney General, for Plaintiff and Respondent.
Defendant Kory Jon Penn was charged by amended information with assaulting victim Tyler M. with a deadly weapon other than a firearm (i.e., a knife) (Pen. Code, § 245, subd. (a)(1), count 1); and with assaulting this same victim by means of force likely to produce great bodily injury (§ 245, subd. (a)(4), count 2). The amended information further alleged that defendant in count 2 personally inflicted great bodily injury on Tyler (§§ 12022.7, subd. (a) & 1192.7, subd. (c)(8)); and that he had sustained a serious prior offense (§§ 422, 12022.5, subd. (a) & 667, subd. (a)) and two prior serious and violent felonies for purposes of the Three Strikes law (§§ 667, subds. (c) & (e)(2)(A) & 1170.12, subd. (c)(2)(A)).
All further statutory references are to the Penal Code unless noted otherwise.
The jury found defendant not guilty of count 1, guilty of count 2, and found true the great bodily injury enhancement connected to count 2. Defendant admitted he had two prior convictions, as alleged in the amended information. The court sentenced defendant to a determinate term of eight years and an indeterminate term of 25 years to life, to be served consecutively with case numbers RIF1500704 and RIF10000706.
The People note the "Abstract of Judgment — Prison Commitment — Indeterminate" contains two clerical errors: defendant was convicted of assault with force likely to cause great bodily injury (count 2), and not assault with a deadly weapon, non-firearm as stated in the abstract (count 1); and defendant was sentenced under section 667, subdivisions (b) through (i), which box was not checked on the abstract form. We address this issue post.
Case number RIF1500704 involved victim Jonathan O., discussed post. Case number RIF10000706 involved victim Jane Doe (K.D.), which is the subject of a separate appeal (D073706) filed concurrently with the instant appeal.
On appeal, defendant contends the court erred when it refused pretrial to strike one of his strike priors under People v. Vargas (2014) 59 Cal.4th 635 (Vargas), which held that multiple convictions based on a single act count as only one strike. He also contends the court erred when, over objection, it admitted under Evidence Code section 1101, subdivision (b) other crimes evidence involving Jonathan O., J.O., and Jennifer D. As we explain, we reject each of these contentions and affirm his judgment of conviction, as modified.
OVERVIEW
We view the evidence in the light most favorable to the judgment of conviction. (See People v. Osband (1996) 13 Cal.4th 622, 690.) Portions of the factual and procedural history related to the contentions raised by defendant are discussed post.
People's Evidence
Jane Doe (K.D.) testified that she dated defendant from June 2014 until about January 2015; that during their relationship, defendant supported them by selling drugs including methamphetamine, heroin, and Xanax, which they also took throughout their relationship; and that Tyler M. was one of the many individuals who purchased drugs from defendant. K.D., who was with defendant during almost all of his drug sales while they dated, stated Tyler purchased methamphetamine or heroin from defendant a "couple times a week."
In the week leading up to the October 12, 2014 incident, K.D. testified that Tyler called defendant "a bunch of times" because defendant owed him $20; that defendant became irritated by Tyler's constant calling and text messaging regarding the money; and that when defendant attempted to silence his phone during one of Tyler's calls, he rear-ended a truck. K.D. testified defendant became "really upset" at, and blamed Tyler for, the car accident.
On October 12, Tyler's friend Sarah arranged to purchase drugs from defendant. They agreed to meet at 6:00 a.m. in a parking lot next to a large convenience store. K.D. was with defendant that morning. K.D. testified defendant believed Sarah was coming alone, as defendant was still angry at Tyler over the car accident.
K.D. recalled it was dark when they met Sarah in the parking lot, and neither she nor defendant saw Tyler, who was a passenger in Sarah's car. Sarah next got into defendant's truck and sought to purchase black tar heroin. K.D. testified defendant always carried a sharp knife, which he used to cut black tar heroin from a "ball." She estimated the knife handle was about three inches long, with the blade being about the same.
As defendant was busy cutting the heroin and weighing it on his scale, Tyler walked up to, and knocked on, the driver's side window of defendant's truck, startling defendant. K.D. testified defendant became aggravated, rolled down his window, and told Tyler to leave. After Tyler and defendant exchanged a few words, defendant got out of his truck and confronted Tyler.
K.D. testified that she suddenly saw Tyler and his cellphone "fl[y] back" and hit the ground. She next heard Tyler say his "brand new" cellphone had been broken and saw the two men "square[] up." K.D. stated she just saw "bits and pieces" of the fight because when defendant acted "like that," she tried to ignore him. However, when K.D. heard someone — most likely a store employee — say they were calling the police, K.D. got out of the truck and told defendant they needed to leave. K.D. then saw Tyler on his back on a hood of a car located a few cars down from where they had parked, with defendant on top punching him.
When defendant stopped punching Tyler, K.D. saw Tyler bleeding profusely from his head, which had been cut open. Tyler staggered back to Sarah's car. Defendant and K.D. then quickly drove away, back to the home where they had been staying. On arrival, defendant instructed K.D. to park his truck around the corner to make it more difficult for police to locate him.
Tyler testified that he had known defendant for about two or three years before the October 12 incident; that in addition to sometimes hanging out together, he also bought drugs from defendant whenever he had money, which he estimated was a "couple times a week"; and that he accompanied Sarah, who was his former girlfriend's sister, on October 12 because defendant still owed him $20. About a week before the incident, Tyler called defendant's cellphone. Defendant answered and told Tyler he had just crashed his car and had to go. Tyler stated he would call and text message defendant about the money, but that defendant made excuses and never paid him.
Tyler also testified in case number RIF 1500704 (D073706) in connection with the admission of other crimes evidence under Evidence Code section 1101, subdivision (b).
The night before the incident, Sarah had been with her boyfriend at Tyler's home. She asked Tyler to accompany her to purchase drugs from defendant. Tyler agreed because defendant still owed him $20. Tyler knew once defendant sold Sarah drugs, defendant could use that money to pay him.
Tyler testified that on October 12 Sarah drove to the parking lot where she had arranged to meet defendant; that it was about 6:00 a.m. when they arrived; and that defendant was already there, parked near the entrance to the store, waiting for Sarah. Once parked, Sarah went to defendant's truck and started speaking with K.D. A few seconds later, Tyler went to the driver's side of the truck and tapped on the front window.
According to Tyler, defendant "just hopped out" of his truck, got in Tyler's "face" and asked Tyler, "What are you looking at?" When Tyler asked defendant for the $20, defendant responded, "What do you mean?" then went "crazy" and forcibly pushed Tyler down, breaking Tyler's new cellphone. When Tyler told defendant he owed him a new phone, defendant responded Tyler owed him a new front end to his truck. After Tyler told defendant he was not responsible for defendant crashing his truck, defendant grabbed a pair of expensive, studio-quality headphones from Tyler and demanded Tyler go back to Sarah's car. When Tyler tried to take back his headphones, defendant took about five swings at Tyler. Tyler testified he did not try to fight back, but instead raised his hands in self-defense to block the swings. It was then defendant punched Tyler in the eye, causing a cut. Defendant next grabbed Tyler's shirt and smashed him on the hood of a car, causing Tyler to "black out."
When he awakened a few seconds later, Tyler found blood was "pouring out of [his] head." Once back inside Sarah's car, Tyler looked in the mirror and saw his injury, which he described as similar to being "scalped." At some point during the drive home, Sarah pulled over and called defendant's cellphone because she still wanted to buy drugs from defendant. Tyler testified that he grabbed the phone from Sarah and told defendant, "Dude, you messed up my head real bad" and "I'm going to be scarred for life." Defendant in response stated, "Don't call the cops" and hung up.
Before taking Tyler home, Sarah went to another location and someone other than defendant came outside and sold Sarah drugs. Tyler went to the hospital and received "a lot of stiches" for the injury to his scalp and eye. Tyler testified he initially was hesitant to talk about his injury, out of concern defendant would retaliate and "finish [him] off or something."
The record shows store surveillance cameras captured the assault. An edited copy of the video was played for the jury during Tyler's testimony.
Emergency room doctor Bret Kilker testified that he treated Tyler's injuries on October 12; that Tyler had sustained about a six-inch "linear laceration" on his hairline that required 28 sutures to repair; that Tyler's injury was caused by a "sharp instrument" such as a knife, and not by a blunt object or blunt force; and that he also treated Tyler for an injury to his right eye. Because the wound to Tyler's scalp traversed along the curvature of his cranium, and because there was no "stellate injury" or "soft tissue swelling" or bruising to the back of Tyler's head, Dr. Kilker opined it would have been "impossible for a blunt force object" to have caused Tyler's scalp injury.
Sheriff Deputy Christopher Johnson testified he was dispatched at about 6:15 a.m. on October 12 to a parking lot near a large convenience store after the report of an assault. On inspection, Deputy Johnson observed "pools of blood" by the entrance to the store. After speaking to a security guard who had not witnessed the assault, Deputy Johnson reviewed the store surveillance video, which showed two males involved in the fight, with one of the males (i.e., defendant) throwing the other male (i.e., Tyler) "onto the top of a vehicle." A couple of hours later, dispatch notified Deputy Johnson that a male with multiple lacerations was at the hospital for treatment. The male reported being injured in a parking lot.
Deputy Johnson contacted the male at the hospital and identified him as Tyler. Deputy Johnson interviewed Tyler, who relayed what had happened in the parking lot. Tyler also showed Deputy Johnson his broken cellphone. Deputy Johnson took photographs of Tyler's injuries at the hospital.
Defense Evidence
Defendant testified in his own defense. He testified that he sold drugs to Sarah and/or Tyler "every few days"; that each typically bought heroin and sometimes methamphetamine; and that about a week before the October 12 incident, he purchased a belt from Tyler for $60, giving him $40 in cash and owing him the balance of $20. According to defendant, Tyler then starting calling, text messaging, and using social media to contact defendant about the $20 he was owed.
Defendant testified he was on the way to Tyler's home to pay the $20 when he got into the accident. He stated he looked down at his phone when Tyler called and rear ended a truck, causing minor damage to the front end of his own truck. Defendant denied being angry at Tyler or blaming him for causing the accident.
Regarding the October 12 incident, defendant testified he and K.D. had arranged to meet Sarah at 6:00 a.m. in a parking lot. Because of his drug usage, defendant testified his sleep pattern tended to be "backwards." He estimated on that day he probably had not slept for about 36 hours. Before leaving to meet Sarah, defendant testified he cut $20 of heroin, or half a gram, from a "ball" to sell to her. He claimed he then returned the knife to his lockbox, which he kept inside the home. Defendant thus testified he did not have a knife on him when he and K.D. met Sarah.
The record shows while being shown the surveillance video, defendant testified that Sarah got into his truck; that he was about to sell her heroin; and that all of the sudden Tyler showed up at defendant's window, startling him, as defendant had not expected to see Tyler that morning. Defendant stated he was somewhat frightened by Tyler's presence because Tyler had been "harassing" him over the $20.
According to defendant, Tyler next reached for the truck's door handle, which unexpectedly caused the truck door to "pop[] open." While still seated, defendant claimed he pushed Tyler, but not hard, as Tyler "kind of stumbled . . . over the curb." When asked why he pushed Tyler, defendant stated Tyler had threatened him as he approached the truck, telling defendant, "Hey man, what the fuck? Why are you dodging me? I should beat your ass for this. Where's my 20 bucks?"
Because defendant was in the middle of a drug deal, he testified he tried to "defuse" the situation by instructing Tyler to get into the backseat of defendant's truck. Tyler instead told defendant he was going to "fuck [him] up" while again demanding defendant pay him $20. According to defendant, Tyler then reached for defendant's wallet, which was resting on defendant's lap. Defendant in response put up his arm, which is when he "shove[d]" Tyler.
Defendant testified Tyler got up from the ground and stated he was "going to fuck [defendant] up" for breaking his cellphone. Defendant again tried to get Tyler to "chill out" and not make a scene. Defendant denied grabbing headphones from Tyler, and claimed Tyler instead tried to take defendant's phone out of his hand, which led to their "scuffle." Defendant testified he had no intention of fighting Tyler that morning and only wanted to get away from the situation and leave the parking lot.
Defendant testified that during the scuffle, they grabbed on to each other and both fell back onto the hood of a car, causing Tyler to hit his head and shoulder. Defendant next heard someone yell, "I'm going to call the cops." Defendant ran back to his truck and left. Defendant stated he had no knowledge that Tyler had been injured during the scuffle.
On the drive home, Sarah called and, according to defendant, apologized for Tyler's behavior. When Tyler got on Sarah's phone and spoke to defendant, defendant claimed Tyler said, "I only got, you know, just a cut on my head, but it's all right," and asked defendant to complete the drug sale to Sarah so they could "get high."
DISCUSSION
I
Relying on Vargas, supra, 59 Cal.4th 635, defendant contends the court erred in refusing pretrial to strike one of his two prior strikes because the two convictions were allegedly based on the same act. We disagree.
Defendant raised this same argument in D073706.
A. Guiding Principles
In Vargas, supra, 59 Cal.4th 635, our high court held that when two prior strike convictions are based on the same act, the trial court is required to dismiss one of them. (Id. at p. 645.) There, the defendant had two prior strikes—carjacking and robbery—which were based on the same act of forcibly taking the victim's car. (Ibid.) The trial court used both convictions to sentence the defendant to the indeterminate term of 25 years to life.
The Vargas court ruled that when a defendant has been convicted of committing a single criminal act on a single victim that results in two felony convictions under different statutes, a trial court abuses its sentencing discretion if it fails to strike one of the two convictions for purposes of the Three Strikes law. (Vargas, supra, 59 Cal.4th at pp. 640-649.) In reaching its decision, the court reasoned that when an offender commits but a single act, he or she does not pose a greater risk to society merely because the Legislature has chosen to criminalize the act in different ways. (Id. at p. 646.)
The Vargas court noted it had previously found that multiple crimes may constitute multiple strikes when crimes are tried together (People v. Fuhrman (1997) 16 Cal.4th 930, 933) or even when, because the multiple crimes occur during a single course of conduct, punishment of only one crime is imposed and punishment is stayed under section 654, subdivision (a) with respect to the other crime or crimes (People v. Benson (1998) 18 Cal.4th 24, 27-31 (Benson)). (Vargas, supra, 59 Cal.4th at pp. 638-639.) Thus, the court in Vargas distinguished the situation when, as in the case before it, there were "multiple criminal convictions stemming from the commission of a single act[ ]" (id. at p. 648), from the situation when there were "multiple criminal acts" committed during a single course of conduct (ibid.).
In Benson, the two prior strike convictions were based on an incident in which the defendant returned to a neighbor's apartment to retrieve his keys, grabbed his neighbor, forced her to the floor, and repeatedly stabbed her. (Benson, supra, 18 Cal.4th at p. 27.) After the defendant in Benson was convicted of residential burglary and assault with intent to commit murder, the trial court stayed one of the convictions pursuant to section 654, subdivision (a), because both offenses were based on the same course of conduct. (Benson, at p. 28.) When the defendant reoffended, both of his convictions were later alleged as strikes.
On appeal, the defendant in Benson contended that section 654 prevented both burglary and assault charges to be alleged as strikes. (Benson, supra, 18 Cal.App.4th at p. 28.) Our high court disagreed, concluding that a stay under section 654, subdivision (a) did not prohibit the imposition of multiple strikes. (Benson, at pp. 28-31.) In reaching its decision, the Benson court distinguished the situation where "multiple convictions arise out of a single act by the defendant," from the situation in which "multiple acts [are] committed in an individual course of conduct . . . ." (Id. at p. 36, fn. 8.)
B. Additional Background
Defendants' two prior strikes were based on an incident dating back to January 28, 2010, which occurred at the home of victim Jonathan O. The incident was recorded by surveillance cameras located outside the home and was the subject of police reports that are included in the record.
Jonathan did not testify in case number RIF1500704 involving victim K.D., which as noted, is the subject of a separate appeal by defendant (D073706). Instead, the court relied on the police reports that were included in that record.
As discussed post, Jonathan's testimony in the instant case was admitted in connection with other crimes evidence (Evid. Code, § 1101, subd. (b)), and not in connection with defendant's motion to strike a strike prior, which was heard by the court in March 2016, or several months before Jonathan testified at trial. The record shows that, in ruling to deny defendant's Vargas motion, the court relied solely on the detailed police reports and other documents defendant had attached as exhibits to his motion; and that after Jonathan's trial testimony in November 2016, defendant did not renew his request to strike a strike prior. As such, we limit our analysis on this issue to the evidence before the court when it decided the motion in March 2016.
The police reports noted that defendant, his girlfriend C.E., Jonathan, and Jordan O., who lived at the same address as Jonathan, had known each other for many years; that Jonathan previously had lost a pair of sunglasses belonging to C.E.; and that defendant and C.E. had a camera belonging to Jonathan, which they were holding as "collateral" until Jonathan paid for the lost sunglasses.
The incident arose after Jonathan gave C.E. $65, but C.E. refused to return the camera, stating she wanted more money. They began arguing, leading C.E. to push Jonathan. As the argument continued, defendant approached, pulled out a black revolver from his waistband, pointed it at Jonathan, and demanded that Jonathan leave C.E. alone. Jonathan reported he was scared when defendant pointed the gun at him.
Jonathan next saw Jordan and Kimberly S., who also had been at the home, arguing with C.E., who in response "punched [Jordan] in the face with a closed fist." Jordan and Kimberly then began fighting with C.E. Jonathan saw defendant assisting C.E. by "hitting and kicking" Jordan and Kimberly. Jonathan intervened and stopped the fight.
Jonathan followed behind defendant and C.E. as they were walking to their car to leave, after the altercation had ended. Jonathan then informed defendant and C.E. he was going to report the incident to police. Defendant in response pulled out the gun a second time, pushed it into Jonathan's stomach, and stated, "I'm going to blow you away." Scared, Jonathan stopped talking and quickly went inside the home. The police report noted Jonathan asked for protection from defendant.
The police reports also included a witness statement by Jordan. She confirmed defendant yelled several times he was going to "blow away" Jonathan as defendant and C.E. walked toward their car.
The police reports noted that C.E. was contacted at her home shortly after the incident. C.E. told police that defendant was inside the home but denied he had a gun. Police called defendant's cellphone and demanded he come outside. Defendant complied. When asked about the gun, defendant told police it was a "watergun [sic]," which he claimed to have thrown out the car window while they were driving to C.E.'s home.
C.E. gave police permission to search the home, again insisting defendant never had a gun. During a search of the residence, police located a gun and ammunition in C.E.'s room. A records check showed the gun was registered to defendant's mother. When contacted, she reported her son did not have permission to take the gun.
As a result of this incident, defendant was charged with, and ultimately pleaded guilty to, making a criminal threat to another (i.e., Jonathan) "which would result in great bodily injury and death," in violation of sections 422 and 12022.5, subd. (a) (count 1 of Apr. 5, 2010 amended information in case No. RIF10000706); and attempting to "prevent and dissuade" another (i.e., Jonathan), who might be a witness, "from reporting a suspected crime to a law enforcement agency . . . by means of force and threats of unlawful injury" (i.e., using a .38 caliber revolver), in violation of sections 136.1, subdivision (c)(1) and 12022.5, subdivision (a) (count 2).
Defendant also pleaded guilty in case number RIF10000706 to count 3, a misdemeanor, which is not relevant to this analysis.
The record in the instant case shows the trial court, after considering the parties' papers and hearing the argument of counsel, denied defendant's Vargas motion, finding that there was a "temporal distinction" between counts 1 and 2 and that the counts therefore involved "two completely separate acts" by defendant. Relying on language from Vargas that the voting public would reasonably have understood "that no one can be called for two strikes on just one swing" (see Vargas, supra, 59 Cal.4th at p. 646), the court found defendant did not take just "one swing" at Jonathan, but rather "two": as there were "two different occasions where the defendant, according to the police reports, pulled out a firearm, and threatened [him,] one that occurred before the victim said that the victim was going to call the police, and one that occurred after the victim made an indication of reporting to the police."
C. Analysis
Here, we conclude the facts of defendant's two strike priors are similar to the facts of Benson and not Vargas. Although the record shows both offenses occurred on the same day and involved the same victim, the record further shows defendant's two convictions did not involve a single act (see Vargas, supra, 59 Cal.4th at p. 642), but rather involved two separate and distinct acts: making a criminal threat against Jonathan by use of a firearm during the altercation between Jonathan and C.E.; and, once the altercation had ended, attempting to prevent or dissuade by use of a firearm Jonathan from reporting the incident to police, after Jonathan followed defendant and his companion C.E. to their car and stated he was going to report the incident to police; both of which acts were committed in an indivisible course of conduct. (See Benson, supra, 18 Cal.4th at p. 36, fn. 8.) As such, we conclude the court properly refused to treat defendant's two strike priors in case number RIF10000706 as a single strike.
Defendant nonetheless contends the court erred because, in denying his Vargas motion, the court did not consider whether the conduct of defendant in case number RIF10000706 satisfied the elements of the offenses. As noted, however, defendant pleaded guilty to counts 1 and 2, and thus, there was no reason for the prosecutor in that case to prove the elements of either offense.
In any event, it is clear the trial court properly rejected defendant's motion, finding there was a "temporal distinction" between the two separate acts of defendant, which finding, we note, is supported by substantial record evidence, as summarized ante. (See People v. Brooks (2017) 3 Cal.5th 1, 57 [noting in a challenge to the sufficiency of the evidence, "[w]e ' " 'must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value' " ' "].)
Defendant also contends he was deprived due process because the trial court did not separately consider when ruling on his Vargas motion whether to strike one of his priors "in furtherance of justice" pursuant to section 1385, subdivision (a), as interpreted in People v. Williams (1998) 17 Cal.4th 148 (Williams).
There, our high court found that, when deciding whether to strike a prior conviction under section 1385, a trial court "must consider whether, in light of the nature and circumstances of his [or her] present felonies and prior serious and/or violent felony convictions, and the particulars of his [or her] background, character, and prospects, the defendant may be deemed outside the [Three Strikes] scheme's spirit, in whole or in part, and hence should be treated as though he [or she] had not previously been convicted of one or more serious and/or violent felonies." (Williams, supra, 17 Cal.4th at p. 161.) We find defendant's contention unavailing.
First, as noted, defendant's motion to dismiss a strike prior was made pretrial, several months before the trial in the underlying case commenced. As such (and without a crystal ball), defendant then could not have known the outcome of his trial in the instant case. Thus, it would have made little sense at that stage of the proceedings to consider whether he was outside the spirt of the Three Strikes law under Williams, which includes as a factor "the nature and circumstances of his [or her] present felonies." (See Williams, supra, 17 Cal.4th at p. 161, italics added.)
Second, the record shows that defendant at sentencing in the instant case (and a related case, as noted ante) did not ask the trial court to dismiss a strike prior when the court sentenced him to the indeterminate term of 25 years to life. As such, he forfeited this claim of error on appeal. (See People v. Carmony (2004) 33 Cal.4th 367, 375-376 [explaining that "any failure on the part of a defendant to invite the court to dismiss under section 1385 following [People v. Superior Court] Romero [(1996) 13 Cal.4th 497] waives or forfeits his or her right to raise the issue on appeal"].))
Third, to forestall a claim of ineffective assistance of counsel and in light of defendant's request for remand to allow the trial court to address this issue, we reach the merits of this claim of error and conclude the trial court did not abuse its discretion in sentencing defendant as a third-strike offender.
Indeed, we note defendant did not even attempt to demonstrate in his opening brief that he fell outside the spirt of the Three Strikes law. And for good reason. The record shows defendant has a lengthy criminal record, which, as noted by the probation report and the court at sentencing in the instant (and related) case, also shows defendant was engaging in more dangerous and serious crimes as time went on.
Specifically, the probation report found that defendant's convictions were increasing "in seriousness"; that he had been afforded numerous opportunities "via probation to rehabilitate, remain in society, and become a productive citizen but he ha[d] failed to do so"; and that his failure to do so was evidenced by "his prior convictions, failure to successfully abide by terms and conditions set forth by probation, pending cases (RIF1500704, RIF1402874, RIM1415296, RIM1501369), and the instant matter."
At sentencing, the court generally noted defendant had "engaged in violent conduct that indicates a serious danger to society. His prior convictions as an adult which are numerous or of increasing seriousness. That he was on probation when the crime was committed. And that his performance on probation was unsatisfactory." With respect to the instant case, the court noted that it also had seen the video and that defendant's "reaction was, obviously over the top." The court found defendant was a "danger to society" because of his "violent temper," which he was unable to control, and thus, that "society need[ed] to be protected from that."
The record shows defendant's February 3, 2017 sentencing involved three separate matters: the instant case involving Tyler; case number RIF1500704 involving victim K.D. (D073706); and case number RIF10000706 involving victim Jonathan (probation violation).
On this record, we conclude the trial court did not sentence defendant in an absurd, irrational, or arbitrary manner for purposes of the Three Strikes law. (See People v. Myers (1999) 69 Cal.App.4th 305, 309-310 [noting a defendant who "seeks reversal must demonstrate that the court's decision was irrational or arbitrary"].) We thus reject this claim of error.
II
Defendant next contends the court erred when, over objection, it admitted under Evidence Code section 1101, subdivision (b) other crimes evidence.
A. Additional Background
1. Offer of Proof and the Trial Court's Ruling
The record shows the People moved in limine to introduce evidence of four other instances of unprovoked behavior by defendant involving a weapon, to show defendant's intent and to disprove self-defense with respect to the assault charges involving Tyler. The People sought to admit the January 28, 2010, incident involving Jonathan, discussed ante; an April 27, 2010, incident at a baseball game, which the court ultimately refused to admit; a September 22, 2012, incident involving an off-duty sheriff deputy (RIF1204274); and an August 15, 2014, incident involving Jennifer D. (RIM1415296).
Regarding the September 22 incident, the People's offer of proof provided that Deputy Sheriff J.O. was outside his home in plainclothes with his young son, who was riding a tricycle; that his son rolled off the curb and into the street on his tricycle; that at the same time, a silver truck "traveling at a high rate of speed" cut the corner and came down the street; and that the driver of the silver truck had to swerve to avoiding hitting the child, before abruptly stopping in front of J.O.'s home. As the truck began to leave, J.O. told the driver, later identified as defendant, to slow down. Defendant in response "stopped his truck, backed it up to the driveway," and yelled, "Fuck you. I'll get out of this truck and fuck you up!" J.O. told defendant to get back in his truck and leave, before defendant got hurt. Defendant responded, "I'll be back. I'm going to shoot you" and left at a high rate of speed.
About five minutes later, defendant returned to J.O.'s home holding a baseball bat in his right hand. Defendant told J.O., "I'm going to fuck you up" as he approached J.O. Defendant's family lived on an adjacent street. It was then that defendant's father interceded and forced defendant to go home. "Defendant was found guilty of brandishing a weapon."
The incident involving Jennifer D. on August 15, 2014, was "still pending" when the People sought to introduce this evidence in the instant case. Jennifer was at home when she heard the horn sound from her brother's car, which was parked in the driveway. Once outside, Jennifer saw a man later identified as defendant using his car to block in her brother's car. Jennifer saw defendant then rush towards her brother's car and start arguing with her brother. As more family members came outside, defendant returned to his car. Jennifer approached the driver side window and confronted defendant. "Defendant then pulled out a silver pocket knife, approximately 2 inches long and pointed the knife at Jennifer. Jennifer was afraid, so she stepped away from the car. Defendant then told Jennifer, 'That is not going to stay like this' and left the area."
The record shows that the court heard extensive argument from counsel regarding the admission of the prior incidents; that the court twice watched the store surveillance video showing the fight between defendant and Tyler; and that the court confirmed with the defense it intended to argue that defendant had acted in self-defense in the fight with Tyler.
With respect to the January 28, 2010 incident involving Jonathan, the court found it was sufficiently similar to the charged crime involving Tyler. Specifically, the court noted the January 28 incident started while Jonathan and defendant's girlfriend C.E. were arguing: "During the argument, the defendant removed a black revolver from his waistband and pointed it at Jonathan O[.], and told Jonathan O[.] to leave it alone. [¶] A fight broke out. All the parties separated eventually, and according to the People's brief, while walking back to the car, Jonathan O[.] followed them and told them he was -- following the defendant and his friend, told them he was calling the police. [¶] At that time the defendant placed the revolver under his hoodie, pushed it against Jonathan's stomach and said, 'I'm going to blow you away.' [¶] Jonathan O[.] became very scared, stopped talking, went back to his house. The defendant and his friend left.
"That was a case where the defendant was previously convicted of those related crimes, both the [sections] 136.1 and 422. In this case involving [Jonathan], it appears that, according to the facts as presented here, and taking that as an offer of proof as to what [Jonathan] would testify in this trial, it appears that the defendant acted without self-defense, and acted aggressively and affirmatively to interject himself into an argument between two other people, pointing a firearm twice at an individual and threatening to kill that person.
"That is — under [Evidence Code] section 1101(b), I find that there is sufficient similarity for a non-propensity inference that the defendant knows what self — knows what self-defense is and what self-defense is not. [¶] And clearly, in this event with [Jonathan], he was not acting in self-defense. . . .
"There is, again, sufficient similarity between this incident with [Jonathan] and the current one, and the similarities are that there was an argument over money, and the defendant used force, either in the form of a verbal command or physical force or the force related to the weapon to achieve his goal, whatever that might have been. So those are the similarities apparently in this incident."
The court also found under Evidence Code section 352 that on balance, the admission of the incident involving Jonathan would not inflame the jury, as the injury to Tyler, which was alleged to have been caused by a knife, was significant and Jonathan sustained no injury, and the testimony of Jonathan, a single witness, would not be an undue consumption of time.
The court engaged in a similar analysis with respect to the incident involving Deputy J.O. on September 22, 2012, which led to a misdemeanor conviction for brandishing a weapon and a sentence of 365 days in county jail. The court noted defendant was acquitted in that case of the felony charge of making a threat to commit a crime resulting in great bodily injury or death. (See § 422, subd. (a).) After ruling the acquittal was not a bar to the admission of the other crimes evidence stemming from the September 22 incident, the court found that incident also was sufficiently similar to the charged offense, inasmuch as defendant got into an argument, became aggressive, and made threatening comments to J.O., only to return a few minutes later with a baseball bat and proclaim he was going to "fuck [J.O.] up." The court found this conduct showed that defendant understood what self-defense was and was not, and what it means to be an aggressor; and was relevant to show a lack of accident, inadvertence, and self-defense in the instant case. As before, the court also found the evidence was not inadmissible under Evidence Code section 352.
Finally, regarding the incident involving Jennifer D. on August 15, 2014, the court engaged in a similar analysis, found the prior conduct of defendant with respect to this incident was sufficiently similar to the charged offenses, as it tended to show defendant knew the difference between self-defense and aggressive conduct, and ruled to admit evidence of this incident under Evidence Code section 1101, subdivision (b).
2. Testimony of Witnesses of Other Crimes
At trial, Jonathan testified he and defendant had attended the same high school and had been friends. Jonathan noted the January 28, 2010 incident had taken place almost seven years ago, making many of the details of the incident difficult for him to remember.
Jonathan recalled that he, defendant, and defendant's then girlfriend, C.E., had gone to an event together where Jonathan had lost C.E.'s sunglasses. Defendant called Jonathan on the day of the incident and demanded payment for the lost sunglasses, causing the two to argue over the phone. Defendant also had a camera that belonged to Jonathan or one of his family members. Defendant told Jonathan he would return the camera after Jonathan paid C.E. for the sunglasses. Jonathan testified he went online and found the sunglasses sold for about $65 to $70.
In the evening later that same day, defendant and his girlfriend arrived at Jonathan's home. Jonathan recalled defendant and C.E. "pounded" on the front door for it to be opened. Jonathan answered the door and handed C.E. the money for the sunglasses; defendant, however, refused to return the camera. As Jonathan went to grab the camera, defendant pulled out a gun and pointed it at Jonathan. Jonathan could not remember if defendant made any statement when he pointed the gun at Jonathan.
Jonathan testified that his sister and his cousin were also in the home during the incident, and that his cousin was standing behind him when defendant pointed the gun at him. Although the gun incident occurred a long time ago, Jonathan specifically recalled defendant putting the gun away before C.E. and Jonathan's sister first argued, and later fought, in the front of the home. Jonathan also testified he told defendant "[i]t was really stupid" of defendant to point a gun at him because there were surveillance cameras mounted above the front door. After Jonathan made this statement, defendant walked to the edge of the driveway, and yelled at C.E., who was still fighting with Jonathan's sister, that they needed to leave.
Jonathan testified that, as defendant stood by the edge of the driveway yelling for C.E. to stop fighting, Jonathan walked up to defendant, said he was going to call the police, and reminded defendant the gun incident had been captured on video. Jonathan testified defendant responded by pulling out the gun a second time and "push[ing] it in[to Jonathan's] stomach."
As noted ante, this testimony was not before the court, or the subject of an Evidence Code section 402 hearing in March 2016, when the court denied defendant's Vargas motion.
Deputy J.O. testified that at about 8:00 p.m. on September 22, 2012, he was standing outside his home in plainclothes watching his son ride a tricycle; that his son then was six-years-old; that his son accidently pulled his tricycle the wrong way and ended up about five or six feet into the street, where he stopped; and that as J.O. was walking towards his son and yelling at him to get out of the street, a truck "turned the corner sharply, at a high rate of speed, and almost ran [his son] over." J.O. estimated the vehicle was traveling over 50 mph in a residential neighborhood. J.O. stated the truck missed hitting his son by a matter of "inches."
Upset and scared by what had just happened, J.O. testified he yelled at the driver to "slow down." Defendant, whose truck window was open, immediately stopped, backed up his truck to where J.O. was standing, and said, "What the fuck did you say?" Although defendant acted as if he was then going to get out of his truck, he stayed inside.
J.O., who did not identify himself as law enforcement, testified he approached the truck window, leaned slightly inside and told defendant, "You almost ran over my son. Slow the fuck down." Defendant responded, "I don't give a fuck about you or your son." As defendant began to open his truck door and step out, J.O. told defendant to go home and warned him if he stepped out, "he's not going to get back in his [truck]." Defendant repeatedly told J.O. he was going to "beat [his] ass" and to "fuck" off. Before defendant left, he also told J.O. he was coming back "to shoot [him]."
J.O. testified after defendant left, he looked over and saw his son "just like frozen, staring at [him]." J.O. told his wife to take their son inside the home as he waited outside to make sure defendant did not return. J.O. testified he was concerned for his own safety and for the safety of his family.
A few minutes later, defendant returned on foot carrying a "metal" baseball bat. Defendant stood across the street from J.O., banged the bat on the ground, and repeatedly yelled for J.O. to come over. J.O. told defendant to stay where he was. As the situation escalated, J.O. saw an older couple approach from the same direction as defendant. J.O. later learned they were defendant's parents, who lived around the corner. J.O. saw the man approach defendant, his son, put him in a headlock, and pull him away, back towards their home. J.O.'s wife called the police.
Jennifer testified that her young brother was named Jesse J.; that Jesse and defendant got into a dispute on August 15, 2014, at about 8:00 p.m.; that Jennifer became aware something was amiss when she heard her brother honking his car horn outside the family home; and that she looked out the window and saw his brother parked in the driveway and another car pull up to the curb. Jennifer saw four males, one of whom she identified as defendant, surrounding her brother's car.
Recognizing her brother was in trouble, Jennifer went outside and encouraged her other family members to do the same. The four males returned to their car. Jennifer identified the driver as defendant and the passenger in the front seat as K.D., defendant's then girlfriend. Jennifer approached and asked defendant what had been the problem. Defendant responded by brandishing a silver knife and stating, "This is not going to stay like this." Jennifer estimated the knife blade was about two inches long. Jennifer "froze," as she considered defendant's conduct to be a direct threat. Defendant then drove off with K.D. and the three other males.
B. Guiding Principles and Analysis
Evidence Code section 1101, subdivision (b) provides: "Nothing in this section prohibits the admission of evidence that a person committed a crime, civil wrong, or other act when relevant to prove some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or whether a defendant in a prosecution for an unlawful sexual act or attempted unlawful sexual act did not reasonably and in good faith believe that the victim consented) other than his or her disposition to commit such an act."
"Evidence that a defendant committed crimes other than those for which he [or she] is on trial is admissible when it is logically, naturally, and by reasonable inference relevant to prove some fact at issue, such as motive [or] intent" (People v. Daniels (1991) 52 Cal.3d 815, 856), or to "overcome [a defendant's] defense." (People v. Wilson (1991) 227 Cal.App.3d 1210, 1216.)
On appeal, a trial court's determination of whether to allow evidence under Evidence Code section 1101, "being essentially a determination of relevance, is reviewed for abuse of discretion." (People v. Carter (2005) 36 Cal.4th 1114, 1147 (Carter); see People v. Edwards (2013) 57 Cal.4th 658, 711 [noting an appellate court reviews the trial court's determination under Evid. Code, § 1101 for abuse of discretion in the light most favorable to the trial court's ruling].) A trial court abuses its discretion when its ruling falls outside the bounds of reason. (Carter, at p. 1149.)
In the instant case, defendant testified that Tyler was the aggressor in the fight, stating that Tyler tried to open defendant's truck door and come after him; that Tyler repeatedly said he was going to "fuck [defendant] up" and "beat [his] ass" both for not paying the $20 and for breaking his cellphone; and that defendant merely acted in self-defense during the fight.
Tyler, however, testified that defendant was the aggressor; that as soon as he approached and knocked on defendant's truck window, defendant became angry, "hopped out" of his truck and got in Tyler's "face"; that when Tyler asked about the $20, which defendant admitted owing Tyler, defendant went "crazy" and forcibly shoved Tyler to the ground, causing Tyler to suffer some abrasions and breaking his cellphone; that when Tyler tried to take back a pair of expensive headphones defendant had snatched from him, defendant took several swings at Tyler, ultimately hitting Tyler in the eye, causing a cut; and that defendant then threw Tyler on the hood of a car, causing Tyler to lose consciousness.
What's more, K.D. testified that immediately before the assault, defendant was using a knife to cut from a "ball" a half-gram of black tar heroin to sell to Sarah; that defendant always carried a knife, which he used to sell drugs; and that the knife blade was very sharp and about three inches long. Dr. Kilker also testified that Tyler's scalp injury was not caused by blunt force, but instead by a "sharp instrument" such as a knife. In fact, Dr. Kilker opined it would have been "impossible" for Tyler's scalp injury to be caused by a blunt instrument or blunt force trauma.
Although the jury ultimately acquitted defendant of count 1, assault with a deadly weapon other than a firearm, we nonetheless conclude the court did not abuse its discretion in finding the other crimes evidence was relevant to support the inference that defendant was not acting in self-defense, as he claimed and as the jury was instructed, when he and Tyler fought. (See Carter, supra, 36 Cal.4th at p. 1149.)
Defendant contends the court erred in admitting the other crimes evidence because none of the prior incidents involved the use of "physical force" as was the case here, but instead "involved empty threats" made by defendant while holding a weapon.
First, we disagree with defendant's characterization of the other crimes evidence as lacking "physical force" and as nothing more than mere "empty threats," as the record shows in each instance that defendants' victims felt threatened and scared by his aggressive conduct; and, as the trial court found, that defendant used "force, either in the form of a verbal command or physical force or the force related to the weapon to achieve his goal."
Indeed, with respect to Jonathan, defendant pulled out a black revolver (for a second time) and shoved it into Jonathan's stomach, while repeatedly telling Jonathan he was going to "blow [him] away," merely because Jonathan told defendant he was going to call the police. When police found the weapon at C.E.'s home, they also found unspent ammunition.
With respect to J.O., defendant first tried to get out of his truck after telling J.O. he was going to "beat his ass" merely because J.O. had told him to slow down. Rather than cooling off, defendant instead returned a few minutes later with a metal baseball bat, which he repeatedly banged on the ground as he yelled he was going to "fuck [J.O.] up." Ultimately, defendant's threats against J.O. were thwarted by defendant's father, who placed defendant in a headlock and forced him to go home.
Finally, with respect to Jennifer, defendant pulled a knife on her, after blocking Jennifer's brother's car in the driveway, merely because Jennifer asked defendant what had been the problem between defendant and her brother. Jennifer testified she "froze" when defendant brandished the knife.
Second, we do not agree that the prior incidents and current incident were sufficiently dissimilar such that the court's ruling to admit the other crimes evidence in the instant case was beyond all bounds of reason. (See Carter, supra, 36 Cal.4th at p. 1149.) To the contrary, we conclude the court properly exercised its broad discretion when it found the other crimes evidence was sufficiently similar to the facts of the instant case, inasmuch as defendant initiated the confrontations with Jonathan, J.O., and Jennifer for little or no reason, as he did in the instant case per the testimony of Tyler and, to a lesser extent, the testimony of K.D. Defendant also was the aggressor in the prior incidents, which also was consistent with Tyler's testimony in the instant case; and defendant in each of the prior incidents did not back down or otherwise seek to "diffuse" the situation, as he claimed in the instant case, but rather escalated it by his conduct, which is also consistent with Tyler's testimony in the instant case.
We further conclude the court properly exercised its broad discretion when it found the probative value of the other crimes evidence was not substantially outweighed by the danger of undue prejudice. (Evid. Code, § 352.) We note the trial testimony of Jonathan, J.O., and Jennifer describing the prior incidents was relatively brief and "was no stronger and no more inflammatory than the testimony concerning the charged offenses" involving Tyler, who unlike the other victims, sustained a serious scalp injury. (See People v. Ewoldt (1994) 7 Cal.4th 380, 405.) Finally, there was strong evidence defendant committed both the charged and, with respect to the instant case, the "uncharged" offenses. (See ibid.)
In any event, even if the court erred in admitting the other crimes evidence, we conclude there is no reasonable probability that defendant would have received a more favorable outcome absent the asserted error. (See People v. Malone (1988) 47 Cal.3d 1, 22 [concluding error in admitting evidence under Evid. Code, § 1101 is tested by the harmless error standard of People v. Watson (1956) 46 Cal.2d 818, 836].)
For the same reason, we reject defendant's argument that the admission of this evidence violated his due process rights. (See People v. Partida (2005) 37 Cal.4th 428, 439 [noting the "admission of evidence, even if erroneous under state law, results in a due process violation only if it makes the trial fundamentally unfair"].) --------
The evidence that defendant assaulted Tyler with force likely to produce great bodily injury was very strong, as summarized ante by Tyler's testimony and based on the surveillance video. In addition, the jury acquitted defendant of count 1, assault with a deadly weapon other than a firearm, after the court instructed the jury that it could consider the other crimes evidence not for the purpose that defendant "has a bad character or is disposed to commit crime," but, as relevant here, for the limited purpose of deciding whether "defendant's alleged actions were not in good faith, by inadvertence, or in self-defense." Under these circumstances, we presume the jury followed the court's instructions. (See People v. Boyette (2002) 29 Cal.4th 381, 436.)
DISPOSITION
The trial court is directed to modify the abstract of judgment to show that defendant was convicted of assault with force likely to cause great bodily injury (count 2), and not assault with a deadly weapon, non-firearm, as stated in the abstract (count 1); and that he was sentenced under section 667, subdivisions (b) through (i), which box was not checked on the abstract. In all other respects, defendant's judgment of conviction is affirmed.
BENKE, J. WE CONCUR: McCONNELL, P. J. HUFFMAN, J.