Opinion
F075848
11-18-2019
THE PEOPLE, Plaintiff and Respondent, v. BRANDON SCOTT POWELL, Defendant and Appellant.
Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Kern Super. Ct. No. BF166255A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Steven M. Katz, Judge. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Stephanie A. Mitchell, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
A jury convicted appellant/defendant Brandon Scott Powell of two counts of resisting an executive officer (Pen. Code, § 69; counts 1 & 2) and one count of battery against a peace officer (§ 243, subd. (c)(2); count 3). In count 1, the trial court sentenced defendant to the upper term of six years. In count 3, a consecutive term of 16 months was imposed. In count 2, defendant received an upper term of six years, which was stayed pursuant to section 654. Three prior prison term enhancements (§ 667.5, subd. (b)) were imposed, resulting in an aggregate prison term of 10 years four months.
All future statutory references are to the Penal Code unless otherwise noted.
In count 4, defendant pleaded no contest to unlawful possession of drug paraphernalia, a misdemeanor (Health and Saf. Code, § 11364). For this count, the court imposed a concurrent term of 180 days in jail.
On appeal, defendant asks us to review the in camera hearing which the trial court conducted pursuant to Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess). Respondent does not object, and our review of the record has revealed no abuse. Defendant raises a claim of ineffective assistance of counsel regarding his trial attorney's failure to object to certain opinion testimony. He also contends that the court abused its discretion in denying his motion pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero) to strike a prior 2004 conviction for first degree burglary. He further argues that the court prejudicially erred in allowing the prosecutor to argue to the jury that defendant had been convicted of four prior felonies when, in actuality, two of those convictions had been reduced to misdemeanors. We reject these claims.
Following supplemental briefing, we agree with the parties that Senate Bill No. 136 (2019-2020 Reg. Sess.; Senate Bill 136) retroactively applies to defendant, who benefits from this change in law. Under Senate Bill 136, a one-year prior prison term enhancement (§ 667.5, subdivision (b)) now only applies if a defendant has a prior conviction for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). It is undisputed that defendant no longer qualifies for the prior prison term enhancements that were imposed in this matter. As such, we will strike these enhancements effective January 1, 2020. Because the court already imposed the maximum sentence against defendant, we will not remand this matter for resentencing. Instead, we will direct the court to issue an amended abstract of judgment after Senate Bill 136 becomes effective on January 1, 2020. We otherwise affirm the judgment.
BACKGROUND
We summarize the material trial facts. We provide additional facts later in this opinion when relevant to specific issues raised on appeal.
I. The Prosecution's Case-in-Chief
On November 10, 2016, at approximately 10:57 p.m., two Bakersfield Police Department officers, Blanchard and McNabb, were dispatched to a particular motel room in Kern County to conduct a juvenile welfare check. Sergeant Toler also responded to that room.
All three officers wore police uniforms that night. When the officers arrived, defendant was inside the motel room along with his girlfriend, Jessica Gibson, and their infant son. Officers Blanchard and McNabb knocked on the door for several minutes and announced themselves as police officers, but there was no answer. McNabb saw a male peek through the blinds. They continued knocking, announcing that someone needed to answer the door. About 30 seconds later, Gibson opened the door.
Officer Blanchard informed Gibson why they were there. She denied that anyone else was in the motel room. The officers entered the room, and Blanchard observed a child in a baby carrier. On a counter, he also noticed a bag of hypodermic needles. When told that the officers had seen a male peek through the window, Gibson admitted that defendant was in the bathroom. While Sergeant Toler remained near the baby, Blanchard and Officer McNabb drew their weapons and ordered defendant to exit the bathroom. He complied and was handcuffed.
Inside the bathroom, Officer Blanchard found a soda can that had holes in it. Next to it was aluminum foil with burn marks. Based on his training and experience, Blanchard believed that these items had been used to heat a controlled substance which could be injected into a person.
While inside the motel room, both defendant and Gibson became agitated. Defendant yelled profanities at the officers. Because of his behavior, the officers moved defendant outside and placed him in the back of a police vehicle. Defendant remained handcuffed. He was told he was "being detained pending further investigation." A short time after being placed in the vehicle, defendant began to kick violently at the passenger side window while he continued to yell and scream. Defendant was told to calm down and stop kicking the window, or he would be pepper sprayed. Defendant did not comply. Officer McNabb opened the door, and defendant continued to kick. McNabb attempted to pepper spray defendant, but McNabb's bottle was empty. Officer Blanchard then pepper sprayed defendant's face for two seconds. Just after being sprayed, defendant exited the vehicle, and he began to flee. McNabb grabbed him, and a scuffle ensued. McNabb and defendant fell to the ground. Defendant was kicking, struggling and yelling. The officers told him several times to stop resisting. During the scuffle, defendant bit McNabb's hand, and he would not release his bite. McNabb struck defendant with his other hand. Fearing for McNabb's safety, Blanchard removed his baton and struck defendant once on his leg. McNabb was able to break his hand loose from defendant's bite. Defendant repeatedly tried to stand, and McNabb believed that defendant was trying to flee again. McNabb repeatedly told him to stop. Defendant continued to try to stand, and McNabb struck defendant's face three times. Defendant stopped, and the officers placed him back inside the police vehicle. McNabb had a "large bite wound to his right hand that was bleeding profusely." At the time of his trial testimony, McNabb had a scar from the bite.
Following the scuffle with defendant, Officer Blanchard investigated the minor's welfare. No evidence of child neglect or abuse was found.
II. The Defense Evidence
Defendant and Gibson testified at trial. According to Gibson, the officers knocked on the motel door and, when she opened the door while holding her son, one of the officers pointed a gun at her. Gibson told the jury that she had initially told the officers that defendant was not present because he had a "probation violation," and she did not want him to go to jail. She testified that officers handcuffed defendant and searched the room for at least an hour. She testified that the drug paraphernalia located in the room belonged to her and not to defendant. She claimed that defendant had been cooperative with police, and she had been the one who had yelled at the officers.
Gibson testified that, about 30 minutes into their search, the officers walked defendant down to a police vehicle. She later heard banging from the patrol car. When she stood to investigate, Sergeant Toler cursed at her and told her to sit down or she would be arrested. She went to the door and saw defendant kicking inside the patrol vehicle. She heard him screaming that he could not breathe. An officer opened the vehicle's door. Defendant moved so he was sitting inside the vehicle with his feet on the ground. According to Gibson, defendant was "gasping for air" and "trying to breathe." At that point, an officer opened the vehicle's door wide and "slammed it" against defendant's head, breaking the glass. The other officer grabbed defendant by the handcuffs and threw him on the ground. Both officers began to beat defendant with numerous punches to his face. One officer repeatedly struck defendant's leg with a baton until the baton "bent in half." The officer was yelling, "Do you want me to break your leg again?" According to Gibson, this referred to a police incident earlier that year in which defendant's leg had been broken.
Defendant testified that, when officers arrived at the motel room, he went into the bathroom to hide because he had marijuana in his backpack. He claimed that the various drug paraphernalia located in the room did not belong to him. He denied yelling or cursing at the officers, claiming it was Gibson who was argumentative. He claimed that he had tried to deescalate the situation, and he was escorted to the patrol vehicle after he started asking questions. While he was escorted outside, Officer Blanchard threatened to take defendant's son away. Blanchard also stated that defendant should not have filed a lawsuit against the police department for an incident in March 2016 that left defendant injured.
Defendant testified that, once inside the police vehicle, he wanted to ask more questions, so he sporadically kicked against the door. The officers opened the door and "maced" him. They shut the door. Defendant could not breathe or see. He thought he might die. He began to yell, "I can't breathe." Nobody responded so he began kicking the window again. An officer opened the door. Defendant scooted over so he was sitting inside the vehicle but "bending out the door." An officer "slammed the door" against defendant's head. Defendant claimed that, after being struck with the door, he had no memory of what transpired. He denied remembering being beaten or biting Officer McNabb. He next recalled getting out of a vehicle in the downtown jail parking lot.
III. The Prosecution's Rebuttal Evidence
Sergeant Toler testified during the prosecution's rebuttal. He confirmed that he had been the "direct supervisor" who responded to defendant's motel room with Officers McNabb and Blanchard. He recalled that both defendant and Gibson were agitated, yelling and screaming. Defendant was escorted to a police vehicle to separate them. Sometime later, Toler heard yelling, screaming and what sounded like someone kicking the interior of a vehicle. He heard Blanchard and McNabb ordering defendant to stop kicking the car or he would be pepper sprayed. Toler could see that defendant was kicking the vehicle, which was rocking. The officers opened the door and defendant was pepper sprayed. Defendant exited the vehicle. Toler denied seeing an officer slam the defendant's head with the vehicle's door. He saw McNabb grab defendant, and they struggled. McNabb struck defendant three or four times, and Blanchard struck defendant one time with a baton on his leg. Defendant stopped fighting, and he was returned to the vehicle.
The prosecutor gave Sergeant Toler hypothetical facts that matched this case. After presenting those facts, the prosecutor asked Toler to opine whether or not the officers' actions were reasonable under the circumstances. Toler answered that the officers' actions were "absolutely" reasonable. Toler believed it was appropriate to use pepper spray in this situation. He also opined that the single baton strike to the subject's leg was reasonable.
DISCUSSION
I. The Trial Court did not Abuse its Discretion Regarding Disclosure of Discovery Following Defendant's Pitchess Motion
Defendant asks us to conduct an independent review of the in camera Pitchess hearing to determine whether the trial court improperly withheld discovery. Respondent does not oppose this request.
A. Background
In December 2016, defendant moved for discovery of the personnel records of Officers Blanchard and McNabb pursuant to Pitchess, supra, 11 Cal.3d 531. Among other things, defendant sought information relating to false report writing, false testimony, and excessive use of force on the part of the officers, citizen complaints filed against the officers, and materials, complaints, and reports relevant to the officers' credibility.
On January 13, 2017, the superior court granted the motion and conducted an in camera hearing to review the personnel file of those officers. Following the court's review of the documents, the court released some information to the defense regarding a claim of dishonesty involving Officer Blanchard. It denied disclosure of the remaining files, which it ordered sealed.
On August 7, 2019, this court, on its own motion, ordered the Clerk of the Superior Court of Kern County to prepare and certify those documents that the court reviewed at the in camera hearing pursuant to defendant's Pitchess motion. The Clerk was directed to forward those documents to this court under seal. If the lower court did not keep copies of the requested documents, the lower court was directed, in part, to prepare a settled statement in accordance with California Rules of Court and People v. Mooc (2001) 26 Cal.4th 1216, 1231-1232 (Mooc).
On August 28, 2019, the requested certified documents were lodged with this court. Accompanying the documents was a confidential settled statement prepared by the judge who presided over the in camera hearing on January 13, 2017. The settled statement indicated that all documents lodged with this court were the same documents which the court reviewed on January 13, 2017.
B. Analysis
" 'A criminal defendant has a limited right to discovery of a peace officer's personnel records. [Citation.] Peace officer personnel records are confidential and can only be discovered pursuant to Evidence Code sections 1043 and 1045.' [Citation.]" (People v. Yearwood (2013) 213 Cal.App.4th 161, 180 (Yearwood); see Mooc, supra, 26 Cal.4th at p. 1220 [California Legislature codified Pitchess motions].) "[O]n a showing of good cause, a criminal defendant is entitled to discovery of relevant documents or information in the confidential personnel records of a peace officer accused of misconduct against the defendant. [Citation.]" (People v. Gaines (2009) 46 Cal.4th 172, 179 (Gaines), citing Evid. Code, § 1043, subd. (b).) "Good cause for discovery exists when the defendant shows both ' "materiality" to the subject matter of the pending litigation and a "reasonable belief" that the agency has the type of information sought.' [Citation.]" (Gaines, supra, at p. 179.)
"If the trial court concludes the defendant has ... made a showing of good cause, the custodian of records should bring to court all documents 'potentially relevant' to the defendant's motion" (Mooc, supra, 26 Cal.4th at p. 1226) and "the court must review the requested records in camera to determine what information, if any, should be disclosed" (Gaines, supra, 46 Cal.4th at p. 179). "Subject to statutory exceptions and limitations ... the trial court should then disclose to the defendant 'such information [that] is relevant to the subject matter involved in the pending litigation.' [Citation.]" (Mooc, supra, at p. 1226, quoting Evid. Code, § 1045, subd. (a).) "A trial court's ruling on a motion for access to law enforcement personnel records is subject to review for abuse of discretion. [Citation.]" (People v. Hughes (2002) 27 Cal.4th 287, 330.)
In this matter, the court followed the proper procedure and created an adequate record of the January 13, 2017, in camera hearing. (See Mooc, supra, 26 Cal.4th at pp. 1228-1229.) A court reporter was present, and the custodian of records was sworn prior to testifying. (See Yearwood, supra, 213 Cal.App.4th at p. 180.) We have examined the sealed files for both officers. We find no abuse of Pitchess discretion. (People v. Samayoa (1997) 15 Cal.4th 795, 827.) As such, we uphold the court's ruling.
II. Defendant Does Not Establish Ineffective Assistance of Counsel
Defendant argues that his trial counsel rendered ineffective assistance. He claims his counsel should have objected when Sergeant Toler was asked to render opinions whether or not Officers Blanchard's and McNabb's actions were reasonable. Defendant contends that Toler was permitted to render a legal conclusion, which was improper and prejudicial. He seeks reversal of his convictions.
A. Background
To understand this claim, we provide additional details from Sergeant Toler's testimony.
During Sergeant Toler's direct testimony, he explained that he responded to this incident because he was Officers Blanchard's and McNabb's direct supervisor that night. He agreed that, in his 22 years with the police department, he had been involved in more than 100 incidents where officers had used force on an individual.
The prosecutor asked Sergeant Toler to opine whether Officers Blanchard and McNabb had used unreasonable or excessive force on the night in question. Defense counsel objected, saying it called for "an improper opinion." The court sustained the objection. The prosecutor asked Toler to explain the training he had received regarding excessive force. Toler briefly summarized the types of force that an officer can employ, such as "control holds," batons, pepper spray, and firearms. He stated that the "force used is always supposed to be contingent upon the actions of the defendant or the person being taken into custody. It has to be reasonable based on the crime you're investigating, the level of resistance that you're encountering, and the danger to the people around you or yourself. There's a lot - all those factors come into play. It has to be reasonable based on all of those things."
Sergeant Toler stated that he had worked as a sergeant for about four years. The prosecutor again asked Toler if he believed that Officers Blanchard and McNabb had used excessive force on the night in question. Defense counsel objected, stating that Toler "doesn't have all the facts to make a proper opinion." The court responded that it believed foundation had been laid, and the question called for an opinion. The court noted that the jury would be instructed regarding "how to use that opinion." Defense counsel complained that Toler "wasn't given all the facts." After an unreported sidebar, the trial court stated, "As to foundation, the objection is sustained."
When testimony resumed, the prosecutor presented Sergeant Toler with hypothetical facts that mirrored this case. After presenting those facts, the prosecutor asked Toler to opine based on his training and experience whether or not the officers' actions were reasonable under the circumstances. Toler said they were "absolutely" reasonable. According to Toler, the bite to the officer's hand was "concerning" because of possible diseases and because a hand injury can have long-lasting and career-ending consequences for an officer. Toler believed that the use of pepper spray had been reasonable under these facts because the suspect in the hypothetical had been "thrashing and kicking," he had posed a risk to the officers' safety, and he could have damaged the vehicle. Toler explained that pepper spray was a "lower level of force" to get compliance compared to physical strikes, Tasers and batons. He opined that pepper spray was appropriate under those circumstances.
Based on the hypothetical facts, Sergeant Toler was asked to opine whether or not the use of a baton strike to the subject's legs was a reasonable use of force. Toler believed it was reasonable because one officer was already on top of the subject, trying to hold him down. That was ineffective. That officer was presumably covering the majority of the subject's upper body. That officer's hand was in the subject's mouth. The second officer could only grab the subject's legs, but they were "kicking and thrashing" and posed a risk of harm to the second officer.
B. The Standard of Review
Under the federal and state constitutions, a criminal defendant is entitled to the effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, § 15; People v. Ledesma (1987) 43 Cal.3d 171, 215.) To prevail on a claim of ineffective assistance of counsel, a defendant must establish two criteria: (1) that counsel's performance fell below an objective standard of reasonable competence and (2) that he was thereby prejudiced. (Strickland v. Washington (1984) 466 U.S. 668, 687.) The defendant has the burden of showing both deficient performance and resulting prejudice. (People v. Lucas (1995) 12 Cal.4th 415, 436.)
C. Analysis
An expert's opinion testimony, if it is otherwise admissible, may embrace an ultimate issue in the case. (Evid. Code, § 805.) An expert, however, may not offer a legal conclusion to the jury. (People v. Spence (2012) 212 Cal.App.4th 478, 507.) Opinions regarding guilt or innocence are inadmissible because they do not assist the trier of fact. In other words, a jury is as competent as the witness to weigh the evidence and draw a conclusion regarding guilt. (People v. Vang (2011) 52 Cal.4th 1038, 1048.)
A defendant cannot be convicted of an offense against an officer engaged in the performance of official duties "unless the officer was acting lawfully at the time the offense against the officer was committed. [Citations.]" (In re Manuel G. (1997) 16 Cal.4th 805, 815.) If a defendant is charged with resisting an executive officer, the officer must have been acting lawfully when the defendant resisted. (Id. at p. 816.) In other words, if an arrest is made with excessive force, the arrest is unlawful, and a defendant cannot be guilty of those charges which require the officer to be lawfully engaged in the performance of his or her duties. (People v. White (1980) 101 Cal.App.3d 161, 167.)
In this matter, defendant argues that Sergeant Toler was permitted to render improper legal conclusions regarding whether or not Officers Blanchard and McNabb used reasonable force. The parties dispute whether or not defense counsel had a rational tactical reason for not objecting when Toler was asked to render his opinions. Although a dispute exists whether or not defendant's trial counsel provided competent representation, we need not resolve that issue. Instead, it is appropriate to dispose of this claim due to a lack of prejudice. (In re Fields (1990) 51 Cal.3d 1063, 1079 [a reviewing court may first analyze prejudice it that is easier to dispose of a claim of ineffective assistance of counsel].) As such, we proceed directly to analyzing harmless error.
In raising this claim, defendant assumes that Sergeant Toler testified as an expert witness. Defendant, however, claims it is unclear from the record whether or not Toler was designated an expert witness. In contrast, respondent argues that the record establishes that Toler testified as an expert witness. We need not analyze this issue. Instead, for purpose of our analysis, we will presume that Toler testified as an expert witness. (Evid. Code, § 720, subd. (a).)
To establish prejudice, it is not sufficient to show that the alleged errors may have had some conceivable effect on the trial's outcome. Instead, a defendant must demonstrate a "reasonable probability" that the result would have been different absent the alleged error. (People v. Williams (1997) 16 Cal.4th 153, 215.) "A reasonable probability is a probability sufficient to undermine confidence in the outcome. [Citation.]" (Ibid.) We agree with respondent that defendant has not demonstrated prejudice.
With CALCRIM No. 332, the jurors were told to disregard any opinion testimony that they found "unbelievable, unreasonable, or unsupported by the evidence." With CALCRIM No. 2670, the jury was properly instructed on what constitutes "unreasonable or excessive" force. The jury was told that the prosecution bore the burden of proving beyond a reasonable doubt that Officer Blanchard (count 1) and Officer McNabb (count 2) "were lawfully performing their duties as peace officers. If the People have not met this burden, you must find the defendant not guilty of Count 1 or 2." The jury was instructed that a peace officer is not lawfully performing his or her duties if "unreasonable or excessive force" is used to make or attempt to make an otherwise lawful arrest or detention. "A peace officer may use reasonable force to arrest or detain someone to prevent escape, to overcome resistance, or in self-defense."
With CALCRIM No. 2670, the jury was also informed that a defendant may not use force or any weapon to resist an officer's use of reasonable force if the defendant knew, or reasonably should have known, that a peace officer was arresting or detaining him or her. However, a defendant may lawfully use reasonable force if a peace officer uses unreasonable or excessive force. The jury was told that a person being arrested or detained uses reasonable force when he or she (1) "uses that degree of force that he or she actually believes is reasonably necessary to protect himself or herself from the officer's use of unreasonable or excessive force;" and (2) "uses no more force than a reasonable person in the same situation would believe is necessary for his or her protection."
The trial evidence overwhelmingly established that Officers Blanchard and McNabb used reasonable force under the circumstances. The evidence also conclusively demonstrated that defendant's actions were unreasonable. Based on the verdicts, it is readily apparent that the jury rejected defendant's and Gibson's alternative version of events.
All three officers wore police uniforms on the night in question. Defendant was moved to the vehicle because he was highly agitated and yelling inside the motel room. When he was initially placed inside the police vehicle, defendant was told he was "being detained pending further investigation." A short time after being placed in the vehicle, defendant began to kick violently at the passenger side window while he continued to yell and scream. Defendant was told to calm down and stop kicking the window, or he would be pepper sprayed. Defendant did not comply. Officer McNabb opened the door, and defendant continued to kick. McNabb attempted to pepper spray defendant, but McNabb's bottle was empty. Officer Blanchard then pepper sprayed defendant's face for two seconds. Sergeant Toler testified that defendant was kicking so violently, Toler could see the vehicle rocking and "the door flexing every time it was kicked."
After being pepper sprayed, defendant attempted to flee. When Officer McNabb grabbed him, they fell to the ground. Defendant continued to yell and kick. The officers repeatedly directed him to stop resisting. Defendant, however, bit McNabb's hand, and he would not release his bite. McNabb was in obvious pain. Officer Blanchard struck defendant one time on his (defendant's) leg only when it was apparent that defendant would not release his bite on McNabb's hand. Defendant repeatedly tried to stand, and McNabb believed that defendant was trying to flee again. McNabb repeatedly told him to stop. Defendant continued to try to stand, and McNabb struck defendant's face three times. Defendant stopped, and the officers placed him back inside the police vehicle. McNabb had a "large bite wound to his right hand that was bleeding profusely." At the time of his trial testimony, McNabb had a scar from the bite.
The trial evidence amply supported the verdicts. In light of the evidence and jury instructions presented, we reject defendant's claim that Sergeant Toler's testimony would have prevented the jurors from reaching their own conclusions regarding whether or not the officers' used reasonable force.
Further, following Sergeant Toler's direct testimony, defense counsel vigorously cross-examined him, and attempted to show the weaknesses in the prosecution's case. Defense counsel elicited testimony establishing that, beyond the initial arrest report, the police department did not investigate the officers' use of potential excessive force in this matter. Defense counsel probed whether Toler knew defendant, or was aware of him, before the night in question (points which Toler denied). Counsel pressed Toler regarding his memories of the events that night, and whether the officers' reports accurately reflected those events. Counsel questioned why the drug evidence in the motel room had not been seized. Toler explained that, after the officers used force on defendant, he (Toler) stopped focusing on the potential drug evidence and instead concentrated on what had transpired, including dealing with Officer McNabb's injuries. Defense counsel elicited Toler's testimony establishing that administering pepper spray in a confined area, such as a vehicle's interior, was not "a good situation" because of the lack of air. During cross-examination, Toler acknowledged that he did not write his own report regarding the events he witnessed that night.
Based on this record, defendant has failed to demonstrate a "reasonable probability" that the result would have been different had Sergeant Toler not rendered his opinions in this matter. (See People v. Williams, supra, 16 Cal.4th at p. 215.) The evidence overwhelmingly demonstrated that the officers' used reasonable force under the circumstances. Likewise, the evidence conclusively established that defendant's actions were unreasonable. Defendant has failed to show the required prejudice to establish ineffective assistance of counsel, and this claim fails. (See Strickland v. Washington, supra, 466 U.S. at p. 687; People v. Lucas, supra, 12 Cal.4th at p. 436.) III. The Trial Court Did Not Abuse Its Discretion in Denying Defendant's Romero Motion
Prior to sentencing, defendant filed a Romero motion in which he sought to strike his prior 2004 conviction for first degree burglary (§ 460, subd. (a)). Defendant asserts that the trial court abused its discretion when it denied the motion.
A. Background
Defendant was sentenced in this matter in June 2017. Just prior to sentencing, the trial court considered and ruled on his Romero motion. The court noted that the 2004 conviction in question was remote in time. The court stated that the issue was whether or not defendant "falls outside the scope of [Romero]." According to the court, it had to examine whether or not "criminality" had occurred since this prior conviction. The court also stated it must consider the circumstances and seriousness of the present felony, the circumstances and seriousness of the past violations, and defendant's background, character and prospects.
The court reviewed the probation report, noting that defendant had not led a "crime free life" since the 2004 conviction. The court consulted with the probation officer, who reviewed defendant's criminal history. The court stated that defendant's subsequent violations and convictions outweighed the remoteness of his 2004 conviction. The court made the following statement: "The second prong of [People v. Williams (1998) 17 Cal.4th 148 (Williams)] says that the Court has to consider the particulars of the defendant's background, his character and prospects. Although the presentence investigation report ... has a discussion of the defendant's background, both his personal and criminal record, this Court doesn't have any evidence about his prospects. ¶ So I don't think in review of the issue the Court can exercise its discretion because I don't think the Court can find that [defendant] falls outside the scope of the three strikes law as it's currently understood, particularly since [Williams]." The court denied the motion to strike.
B. The Standard of Review
We review under the deferential abuse of discretion standard a trial court's failure to dismiss or strike a prior conviction allegation. (People v. Carmony (2004) 33 Cal.4th 367, 375.) Two fundamental precepts guide our appellate review. First, the appealing party bears the burden " ' "to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.]" (Id. at pp. 376-377.) "Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citation.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Id. at p. 377.)
C. Analysis
Defendant notes that, following his 2004 conviction, all but one of his subsequent convictions involved misdemeanors, and none of his crimes involved violence. He asserts that the court should have granted the motion and struck his 2004 conviction. He further contends that the trial court misunderstood the scope of its discretion. According to defendant, the court believed that all factors articulated in Williams had to exist in order to strike the prior conviction. We disagree that the trial court abused its discretion.
"The 'Three Strikes' law prescribes increased punishment for a person who is convicted of a felony after having been previously convicted of specified offenses. [Citations.]" (People v. Murphy (2001) 25 Cal.4th 136, 139, fn. omitted.) Section 1385, subdivision (a), gives the trial court the discretion to strike an allegation that a defendant has previously been convicted of a felony if the dismissal is in furtherance of justice. (Romero, supra, 13 Cal.4th at p. 508.) "[T]he order striking such allegations ... embodies the court's determination that, ' "in the interest of justice" [the] defendant should not be required to undergo a statutorily increased penalty which would follow from judicial determination of [the alleged] fact.' [Citation.]" (Ibid.)
"[T]he Three Strikes law was devised for the 'revolving door' career criminal, and was expressly intended 'to ensure longer prison sentences ... for those who commit a felony' as long as they were previously convicted of at least one strike." (People v. Strong (2001) 87 Cal.App.4th 328, 331-332, fn. 5, fn. omitted.) Our Supreme Court has declared that the purpose of the Three Strikes law is to punish recidivism, and it focuses on the status of a defendant as a repeat felon. (People v. Murphy, supra, 25 Cal.4th at p. 155.)
In Williams, our Supreme Court outlined certain factors that should be analyzed when a sentencing court considers whether to strike a prior conviction. Those include the nature and circumstances of both the current felony conviction and the defendant's prior serious and/or violent felony convictions. The court should also consider "the particulars" of the defendant's background, character, and prospects. The question is whether the defendant may be deemed outside the spirit of the Three Strikes law and treated "as though he had not previously been convicted of one or more serious and/or violent felonies." (Williams, supra, 17 Cal.4th at p. 161.)
In this matter, the trial court noted the Williams factors before it ruled on the motion. The court reviewed defendant's criminal history, and it believed that defendant did not fall outside the scope of the Three Strikes law. This record amply supports the court's conclusions.
Defendant was approximately 34 years old at the time of this sentencing. In 2001 and 2002, he was convicted of multiple misdemeanors, and he had multiple probation violations. In 2002, he was placed on felony probation from drug related offenses (Health & Saf. Code, §§ 11377, subd. (a), 11550, subd. (a)). He violated probation on two occasions, and he was eventually sentenced to 16 months in prison. He was released from parole in 2003.
In 2004, defendant received the prior strike conviction for first degree burglary (§ 460, subd. (a)). He was sentenced to prison for four years, and he was paroled in August 2007. In December 2007, he violated parole. He was convicted of receiving or concealing stolen property (§ 496, subd. (a)), along with numerous other charges. He was sentenced to prison for 10 years eight months. In 2015, two of his 2009 convictions were reduced to misdemeanors, and he was resentenced to eight years in prison.
On March 24, 2015, defendant was discharged to post release community supervision (PRCS). Five days later, he was ordered to serve 90 days in jail for violating the terms of his PRCS release. In May 2016, he was convicted of resisting arrest (§ 148, subd. (a)) and possession of drug paraphernalia (Health & Saf. Code, § 11364, subd. (a)). He was placed on misdemeanor probation for three years and ordered to served 148 days in jail. He committed the current crimes on November 10, 2016.
According to the probation report, defendant had a general education development degree (GED). He had worked as an electrician and had been employed at the time of this arrest. Defendant denied any gang affiliation, but jail records indicated he associated with "Supreme White Pride." According to the probation officer who interviewed defendant, defendant first tried marijuana at the age of 12, and he smoked that drug every day prior to his arrest. He first tried methamphetamine at the age of 12 and injected three or four grams every day prior to his current arrest. Defendant did not consider himself a drug addict, "but stated drugs played a role in the [present] crime."
We agree with the sentencing court that defendant's criminal history outweighed the remoteness of the 2004 strike conviction. Defendant's prior strike for first degree burglary was approximately 12 years old when he committed the present offenses. First degree burglary is considered a "violent" felony. (§ 667.5, subd. (c)(21).) The present matter involved a conviction of battery on a peace officer (§ 243, subd. (c)(2)). Defendant bit Officer McNabb, which left a scar. Defendant's background shows continuous criminal conduct, including repeated incarcerations. Defendant had exceedingly poor performance on probation and parole.
In light of defendant's background, character, and prospects, the trial court did not abuse its discretion in denying the Romero motion. We likewise reject defendant's assertion that the court did not understand the scope of its discretion. To the contrary, the sentencing record establishes that the court clearly understood the factors from Williams, and it went through those factors in reaching its decision. No "extraordinary" circumstances exist to show that defendant, a career criminal, should fall outside the spirit of the Three Strikes sentencing scheme. (People v. Strong, supra, 87 Cal.App.4th at p. 338.)
Finally, defendant relies upon People v. Bishop (1997) 56 Cal.App.4th 1245 (Bishop). This opinion does not assist him.
In Bishop, the defendant was prosecuted for theft of six videocassettes from a store. (Bishop, supra, 56 Cal.App.4th at p. 1248.) The defendant was 50 years old, and his lifetime of crime was directed toward supporting his drug use. (Ibid.) The trial court dismissed two of the defendant's strikes because they were remote (17 to 20 years old) and the current crime was nonviolent. (Ibid.) A 12-year prison term was imposed, which the sentencing court felt would "stop the revolving door" and keep the defendant in prison for a significant period of time. (Ibid.) The Court of Appeal found no abuse of discretion. (Id. at p. 1251.) The Bishop court noted that the number of prior convictions operates as a factor in aggravation. "However, the nature and timing of a defendant's crimes may also operate as mitigation, such as in this case where the present crime is a petty theft and the prior violent offenses are remote." (Id. at pp. 1250-1251.) The Court of Appeal also stated that it was appropriate for the sentencing court to consider the length of the defendant's sentence in conjunction with his age of 50 years and "evaluate factors such as how long the state maintains an interest in keeping the defendant as a public charge and after what period of incarceration he is no longer likely to offend again." (Id. at p. 1251.)
We disagree that Bishop establishes an abuse of discretion. As an initial matter, Bishop predates Williams. Bishop did not address the overall question of whether the defendant should be deemed to fall outside the spirit of the Three Strikes law. In any event, Bishop is distinguishable. Unlike in Bishop, defendant was about 34 years old at the time of this sentencing and his anticipated release from prison would occur while he was still relatively young. His present convictions included battery on a peace officer (§ 243, subd. (c)(2)) in which he bit the officer and left a permanent scar. Defendant's lengthy and continuous history of criminal activity places him well within the spirit of the Three Strikes sentencing scheme. Bishop does not dictate reversal in this matter.
Based on this record, defendant failed to meet his burden to show that the court's sentencing decision was irrational or arbitrary. (People v. Carmony, supra, 33 Cal.4th at p. 376.) In the absence of such a showing, we presume that the court acted to achieve legitimate sentencing objectives. (Id. at pp. 376-377.) As such, the court did not abuse its discretion and this claim fails.
IV. The Trial Court Did Not Abuse Its Discretion When it Allowed the Prosecutor to Argue About the Number of Defendant's Prior Felonies and Any Alleged Error Was Harmless
Defendant claims that the trial court prejudicially erred in allowing the prosecutor to argue that he had been convicted of four prior felonies. In raising this claim, he notes that two of his prior felony convictions had been reduced to misdemeanors pursuant to Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47). He seeks reversal of his convictions in this matter.
A. Background
1. The Prior Reduction of Two Felony Convictions
In 2015, defendant had two felony convictions reduced to misdemeanors under Proposition 47. Those convictions occurred in 2009 and involved receiving stolen property (§ 496, subd. (a)) and petty theft with a prior (§ 666). Defendant was resentenced. A third felony conviction stemming from the same matter, fleeing in vehicle from a peace officer in a willful or wanton disregard for safety (Veh. Code, § 2800.2), was designated as the new principal term.
2. The Prosecution Seeks to Impeach Defendant
Prior to trial in this matter, the prosecutor filed a motion seeking permission to impeach defendant's credibility with his prior convictions if he testified at trial. The motion listed the following: (1) defendant's 2004 felony conviction for first degree burglary (§ 460, subd. (a)); (2) his 2009 felony conviction for receiving stolen property; (3) his 2009 felony conviction for petty theft with a prior; (4) his 2009 felony conviction for fleeing in a vehicle in disregard for safety; and (5) his 2016 misdemeanor conviction for resisting a peace officer (§ 148, subd. (a)(1)).
At the hearing on this matter, the trial court asked the prosecutor if defendant had stayed out of custody after his 2004 conviction. The prosecutor stated that defendant had been convicted of three felonies in 2009. The court ruled that the prosecution could use defendant's felony convictions in 2004 and 2009 to impeach his credibility.
3. The Relevant Trial Testimony
During defendant's direct examination at trial, he admitted that he had been previously convicted of burglary and resisting arrest. During cross-examination, defendant admitted he had been convicted in 2004 for felony-first-degree burglary. He also admitted he had been convicted in 2009 of felony receiving stolen property, petty theft with priors, and another felony for evading a peace officer. Finally, he admitted a 2016 misdemeanor conviction for resisting arrest.
4. The Closing Argument
On May 12, 2017, closing arguments occurred in this matter. During closing argument, the prosecutor reminded the jury that defendant had been convicted of four prior felonies. Defense counsel objected and said, "I don't think that's accurate." The trial court asked defense counsel, "[W]as that not adduced by you, also, on direct examination?" Defense counsel answered, "But not - not four felonies." The court met with counsel in chambers. When trial resumed, the prosecutor was instructed to continue her closing argument. She told the jury that "defendant has been convicted of four felonies, first-degree burglary, petty theft with priors, receiving stolen property, evading police officers, and he has one misdemeanor conviction for resisting arrest. Consider that when you're thinking about witness credibility ...."
5. Defense Counsel Alerts the Court About This Issue
On May 16, 2017, the next court date, the court was notified that the jury had reached its verdicts. Just before the jury was brought out to announce its verdicts, defense counsel renewed his concern that the prosecutor had erroneously told the jury that defendant had four prior felonies. Defense counsel asserted that two of defendant's priors had been reduced to misdemeanors. The court said that issue would be addressed, if necessary, after the verdicts were rendered. The court noted that the prosecution could still prove the prior convictions for purposes of sentencing.
After the jury's verdicts were read and the jurors were excused, the court revisited this issue. Defense counsel stated that defendant had disclosed to him that he did not have four prior felonies as argued in closing. The court indicated its belief that, despite Proposition 47, the prosecution could still prove those convictions as prison priors for purposes of sentencing. The court stated it did not know whether or not the convictions had been reduced to misdemeanors, but they were all alleged as felonies.
B. The Standard of Review
A trial judge has broad discretion to control the duration and scope of closing argument. The court "may ensure that argument does not stray unduly from the mark, or otherwise impede the fair and orderly conduct of the trial." (Herring v. New York (1975) 422 U.S. 853, 862.) Under an abuse standard, we will not disturb the trial court's decision on appeal unless it was exercised in an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice. (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124-1125; Williams, supra, 17 Cal.4th at p. 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].)
C. Analysis
Defendant notes that, when a felony conviction is recalled and resentenced as a misdemeanor under Proposition 47, it is subsequently considered a misdemeanor for all purposes. (§ 1170.18, subd. (k); see also People v. Buycks (2018) 5 Cal.5th 857, 871.) Without raising a claim of prosecutorial misconduct, defendant contends that the prosecutor improperly argued that defendant had four prior felonies. Defendant asserts that the trial court erred in failing to prohibit this argument. We find defendant's assertions unpersuasive. The court did not abuse its discretion and any presumed error was harmless.
1. The Trial Court did not Abuse its Discretion
This record strongly suggests that, before the prosecutor made her disputed comments to the jury, the court was never made aware that two of defendant's prior felony convictions had been reduced to misdemeanors. To the contrary, during his trial cross-examination in this matter, defendant confirmed a felony conviction in 2004 for first-degree burglary. He confirmed three felony convictions in 2009 for receiving stolen property, petty theft with priors, and evading a peace officer. He also confirmed a 2016 misdemeanor for resisting arrest. Defendant did not object when the prosecutor asked him about his prior convictions.
Just before the verdicts were read, defense counsel stated that two of defendant's prior felonies had been reduced to misdemeanors. When the court revisited this issue just after the jury rendered its verdicts, the court noted it did not know whether or not the two convictions had been reduced to misdemeanors. The court commented that they were all alleged as felonies, and the court stated its belief that, despite Proposition 47, the prosecution could still prove those two convictions as prison priors for purposes of sentencing.
Based on this record, an abuse of discretion is not present. Although the prosecutor incorrectly argued to the jurors that defendant had four prior felony convictions, nothing establishes or even suggests that the court was aware of that issue. The court had not made any prior in limine rulings that were contrary to the prosecutor's arguments, and defendant's trial testimony had ostensibly established his four prior felony convictions. Under these circumstances, the court did not exercise its discretion in an arbitrary, capricious or patently absurd manner. As such, an abuse of discretion is not present, and this claim fails. (See People v. Rodrigues, supra, 8 Cal.4th at pp. 1124-1125; Williams, supra, 17 Cal.4th at p. 162 [abuse of discretion review asks whether ruling in question falls outside bounds of reason under applicable law and relevant facts].) In any event, even if error occurred, any presumed error was harmless.
2. Any Presumed Error was Harmless
Defendant contends he was prejudiced by the court's failure to prohibit the prosecutor's argument. Defendant, however, does not set forth the standard we should use to examine the alleged prejudice. In contrast, respondent relies on the state standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836. We can resolve this claim without determining the correct standard of review. Based on this record, we can declare that any presumed error was harmless beyond any reasonable doubt.
The evidence conclusively established defendant's guilt for the charged crimes. Moreover, the jury was properly informed that defendant had prior felony convictions for first-degree burglary and evading police officers. The jury also learned that defendant had a misdemeanor conviction for resisting arrest. Based on the overwhelming evidence of defendant's guilt, and the evidence of his other prior felony convictions, we can determine beyond any reasonable doubt that the court's alleged error did not contribute to the verdicts. (See Chapman v. California (1967) 386 U.S. 18, 24.) The record reveals that this presumed error was unimportant in relation to everything else the jury considered regarding defendant's credibility and guilt. (See Yates v. Evatt (1991) 500 U.S. 391, 403, disapproved on other grounds in Estelle v. McGuire (1991) 502 U.S. 62, 72, fn. 4.) In other words, the guilty verdicts rendered in this trial were surely unattributable to this alleged error. (See Sullivan v. Louisiana (1993) 508 U.S. 275, 279.) As such, prejudice is not present, and this claim fails. V. In Light of Senate Bill 136, We Strike Defendant's Prior Prison Term Enhancements Effective January 1, 2020.
The parties agree, as do we, that defendant benefits from Senate Bill 136. On October 8, 2019, the Governor signed Senate Bill 136 into law. This amends section 667.5, subdivision (b). Under the amendment, a one-year prior prison term enhancement now only applies if a defendant served a prison term for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b).
Defendant was sentenced to three prior prison term enhancements pursuant to section 667.5, subdivision (b). It is undisputed that his prior prison terms were not for sexually violent offenses under Welfare and Institutions Code section 6600, subdivision (b).
We agree with respondent that Senate Bill 136 will become effective on January 1, 2020. Except when passed as an urgency measure, a statute enacted at a regular session of the Legislature generally becomes effective on January 1 of the year following its enactment. (Cal. Const., art. IV, § 8, subd. (c); Gov. Code, § 9600, subd. (a).) Respondent concedes that, when Senate Bill 136 goes into effect, defendant's judgment will likely not be final. Respondent further concedes that this change in law will apply to defendant retroactively. (See In re Estrada (1965) 63 Cal.2d 740, 742.) We agree with respondent.
We are to assume, absent evidence to the contrary, that the Legislature intended an "amended statute to apply to all defendants whose judgments are not yet final on the statute's operative date." (People v. Brown (2012) 54 Cal.4th 314, 323, citing In re Estrada, supra, 63 Cal.2d at pp. 742-748, fn. omitted.) A final judgment will not occur in this matter until 30 days after this opinion is issued. (Cal. Rules of Court, rule 8.366(b)(1).) If one or both parties file a petition for rehearing, the date of finality will be extended further. (Cal. Rules of Court, rule 8.268(b)(1)(A).) The parties will have 10 days after this decision becomes final to petition for review in the California Supreme Court. (Cal. Rules of Court, rule 8.500(e)(1).) Only after a petition for review has been adjudicated in the state court of last resort can a party then petition for a writ of certiorari in the United States Supreme Court. (U.S. Supreme Ct. Rules, rule 13(1) & (3).) For the purpose of determining the retroactive application of an amendment to a criminal statute, a judgment's finality is extended until the time has passed for petitioning for a writ of certiorari in the United States Supreme Court. (People v. Vieira (2005) 35 Cal.4th 264, 305-306.)
It is clear that defendant will not exhaust his appeal rights before January 1, 2020. As such, he benefits from Senate Bill 136. However, we need not remand this matter for resentencing. The trial court imposed the maximum possible sentence against defendant with an upper term in count 1 (§ 69; resisting an executive officer) and a consecutive term in count 3 (§ 243, subd. (c)(2); battery against a peace officer). Thus, there is no need for the trial court to again exercise its sentencing discretion. (People v. Buycks, supra, 5 Cal.5th at p. 896, fn. 15.) Accordingly, we will strike the enhancements imposed in this matter pursuant to section 667.5, subdivision (b). These enhancements will be deemed stricken as of January 1, 2020.
An upper term was imposed in count 2 (§ 69; resisting an executive officer), which was stayed pursuant to section 654. In count 4, defendant pleaded no contest to unlawful possession of drug paraphernalia, a misdemeanor (Health and Saf. Code, § 11364). For this count, the court imposed a concurrent term of 180 days in jail.
DISPOSITION
We strike the three one-year enhancements imposed in this matter pursuant to section 667.5, subdivision (b). The trial court is directed to cause to be prepared an amended abstract of judgment reflecting this modification, with a resulting total sentence of seven years four months. The court shall have a certified copy of the amended abstract forwarded to the appropriate authorities. As so modified, the judgment is affirmed.
We recognize that the amendments to section 667.5, subdivision (b) have not yet taken effect. However, those amendments will be effective at the time this court issues the remittitur returning jurisdiction to the superior court.
/s/_________
POOCHIGIAN, J. WE CONCUR: /s/_________
HILL, P.J. /s/_________
SMITH, J.