Opinion
F068131
10-19-2018
THE PEOPLE, Plaintiff and Respondent, v. JAMES TILTON RUFF, Defendant and Appellant.
Suzanne M. Morris, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Sarah J. Jacobs, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. BF142935A, BF143806A, BF146935A, SF016996A)
OPINION
APPEAL from a judgment of the Superior Court of Kern County. Michael E. Dellostritto, Judge. Suzanne M. Morris, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna, Sarah J. Jacobs, and Lewis A. Martinez, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
James Tilton Ruff (defendant) stands convicted, following a jury trial, of second degree robbery. (Pen. Code, § 212.5, subd. (c); see § 211.) He was found to have served multiple prior prison terms. (§ 667.5, subd. (b).) On September 18, 2013, he was sentenced to five years in prison for the robbery, plus a consecutive one-year term for two of the enhancements, for a total of seven years.
All statutory references are to the Penal Code unless otherwise stated.
The trial court struck the punishment on the other prior prison term enhancements.
Case No. BF146935A is defendant's conviction from which he appeals. Cases Nos. BF142935A, BF143806A, and SF016996A are separate convictions. Defendant was found in violation of probation in each of those cases based on his commission of robbery in case No. BF146935A. The trial court imposed concurrent sentences in each of those cases. After his notice of appeal was filed in case No. BF146935A, defendant petitioned this court for an order adding cases Nos. BF142935A, BF143806A, and SF016996A to his appeal. That petition was granted. Subsequently, the trial court, on application of defendant pursuant to section 1170.18, subdivision (f), reduced those separate convictions to misdemeanors and struck all section 667.5, subdivision (b) allegations. In each of those cases, the trial court sentenced defendant to one year, all to run concurrently, and gave him credit for one year. Defendant does not challenge the rulings in those cases.
On November 4, 2014, voters enacted Proposition 47, "the Safe Neighborhoods and Schools Act" (Proposition 47 or the Act), which went into effect the next day. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) The Act reduced certain felony or wobbler drug- and theft-related offenses to misdemeanors, unless committed by an ineligible defendant. (People v. Lynall (2015) 233 Cal.App.4th 1102, 1108; see § 1170.18, subd. (i).) Insofar as is pertinent here, it also provided a mechanism by which a person who had completed his or her sentence for a conviction of a felony that was made a misdemeanor by the Act, could apply to the trial court that entered the judgment of conviction and have the felony offense designated as a misdemeanor. (§ 1170.18, subds. (f), (g).) While defendant's appeal was pending, the convictions underlying all but one of the prior prison term allegations found true by the court, including one for which a one-year enhancement was imposed in the current case, were designated as misdemeanors under the Act.
This case now comes before us a second time. We originally held: (1) The trial court did not err by refusing to instruct the jury on self-defense; (2) The trial court properly denied defendant's motion for a new trial based on juror misconduct; and (3) A previously imposed sentence enhanced by a section 667.5, subdivision (b) prior prison term is not altered by the granting of a Proposition 47 application reducing the felony that gave rise to that prior prison term to a misdemeanor. Accordingly, we affirmed.
Justice Gomes was part of the panel that originally heard this matter. He passed away on March 6, 2018. Justice Levy was assigned to this case in his stead.
The California Supreme Court granted review, and transferred the matter back to us with directions to vacate our decision and reconsider the cause in light of People v. Buycks (2018) 5 Cal.5th 857 (Buycks). We have done so, and conclude defendant is entitled to have stricken one of the prior prison term enhancements for which sentence was imposed. We will modify the judgment accordingly, but adhere to our original analysis in all other respects.
FACTS
Joshua Ortiz and Dessmar Ayala were cashiers at a Chevron gas station in downtown Bakersfield. At approximately 1:30 a.m. on February 24, 2013, they were working when defendant entered the store. Ortiz was in the "C store" area, which was enclosed on three sides by a counter and was where all the cashiering was done. A variety of cigarettes were displayed along the back wall of the enclosed area. Ayala was headed toward the restrooms to clean them.
Defendant entered the store and went toward the bathroom. Ayala told him the bathrooms were closed for cleaning. Defendant replied, "I don't give a shit. I'm going to take a piss." He then kicked open the unlocked door and went inside. Not wanting to cause a problem, Ayala let him go in and went back to the counter to talk to Ortiz.
A little over a minute later, defendant exited the restroom and walked toward the C store counter area. An unlocked swinging gate allowed access from the main part of the store to that area; however, customers were not allowed to enter. When defendant got close to the gate, Ortiz moved over to guard the gate by positioning his body in front of it, and he told defendant that no one was allowed in that area.
Store surveillance video of the incident was played for the jury. We have also viewed the video.
According to Ortiz, defendant lunged toward him with both hands toward Ortiz's neck. Defendant's fist contacted the left side of Ortiz's lower lip, causing Ortiz to go backwards. Ortiz told defendant he was not supposed to be over there, he needed to leave, and Ortiz was going to call the police. Defendant said he was going to come in there and get what he wanted, and he did not care. Defendant then entered the C store area and proceeded to move toward Ortiz's face. Ortiz grabbed him and began to hit him. Ortiz felt "very violated" and afraid.
Defendant grabbed a pack of cigarettes and put them in his pocket. Ayala came over to help Ortiz. Defendant started to exit the C store area as Ayala reached the gate. Defendant shoved Ayala, who backed up because defendant had started swinging at him. Ayala was afraid.
Ortiz told defendant they were going to call the police. Defendant said to call them, that he did not care. Defendant then left the store. Although he did not pay for the cigarettes, Ortiz did not try to prevent him from leaving with them. Ortiz was unaware of any Chevron policy about apprehending someone who committed an offense within the store. He was required to report the incident to his supervisor and did so.
Ayala called the police. Bakersfield Police Officer McIntyre responded within a few minutes. He obtained a description of the perpetrator from Ortiz and Ayala, and broadcasted it over radio channels. He subsequently was informed officers had located a similar-looking person about half a mile away. McIntyre transported Ortiz to that location, where Ortiz identified defendant. When contacted by the officers, defendant had a brand new, unopened pack of cigarettes on his person. Ortiz identified the cigarettes.
DISCUSSION
I
REFUSAL TO INSTRUCT ON SELF-DEFENSE
A. Background
Defendant moved, in limine, to be permitted to voir dire prospective jurors on self-defense. The trial court granted the request, but warned it did not know whether self-defense instructions would ultimately be given, as it did not know what the evidence would show. It noted that self-defense was not normally a defense to robbery, although it acknowledged there might be instances where it could be.
At the conclusion of the evidentiary portion of trial, defendant requested that the trial court instruct on self-defense (CALCRIM No. 3470). Defense counsel argued self-defense had been the defense theory all along, and there was evidence supporting it. The People opposed the request, arguing that self-defense is not a defense to robbery, and giving the instruction would require the People to prove an element they normally would not be required to prove under the robbery instruction, namely that the crime was not committed in self-defense.
The trial court refused to give CALCRIM No. 3470. It acknowledged that "on some level," defendant was relying on self-defense. It stated, however: "[T]his is a case where I just don't see any evidence of self[-]defense, let alone substantial evidence of self[-]defense. Basically, the clerk walks over with his arms folded. He just basically unfold[s] his arms, and then the next thing he's being pushed across the booth there by the defendant. And as the defendant is holding him with one hand and he's grabbing the cigarettes with the other, so — and I do appreciate — and I did allow you to voir dire on this, but I did warn you that you may not get this instruction, and I'm going to refuse this instruction. I just don't see any evidence of self[-]defense in this case based on what's been presented to the jury. [¶] Certainly, if there is some — if there is no — by any stretch of imagination it can't be, so I'm going to refuse that instruction 3470 . . . ."
Defendant now contends the trial court erred by refusing to instruct on self-defense. We disagree. B. Analysis
Section 211 defines robbery as "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." Thus, "[r]obbery is larceny with the aggravating circumstances that 'the property is taken from the person or presence of another . . .' and 'is accomplished by the use of force or by putting the victim in fear of injury.' [Citation.] In California, '[t]he crime of robbery is a continuing offense that begins from the time of the original taking until the robber reaches a place of relative safety.' [Citation.]" (People v. Anderson (2011) 51 Cal.4th 989, 994.) Accordingly, the offense is robbery even when the property was peacefully acquired if force or fear was used to retain it or to carry it away. (Ibid.; People v. Bradford (2010) 187 Cal.App.4th 1345, 1349.)
The intent required for robbery is the specific intent permanently to deprive the victim of the property. (People v. Anderson, supra, 51 Cal.4th at p. 994.) Because " '[a]s a general rule, no crime is committed unless there is a union of act and either wrongful intent or criminal negligence' " (ibid.), " 'the act of force or intimidation by which the taking is accomplished in robbery must be motivated by the intent to steal . . . .' [Citation.]" (Ibid.) Although all the elements of robbery must be satisfied before the crime is completed, "no artificial parsing is required as to the precise moment or order in which the elements are satisfied." (People v. Gomez (2008) 43 Cal.4th 249, 254.) Nevertheless, if "the intent to steal arose only after force was used, the offense is theft, not robbery. [Citations.]" (People v. Turner (1990) 50 Cal.3d 668, 688; accord, People v. Bradford (1997) 14 Cal.4th 1005, 1055-1056.)
"It is well settled that a defendant has a right to have the trial court, on its own initiative, give a jury instruction on any affirmative defense for which the record contains substantial evidence [citation] — evidence sufficient for a reasonable jury to find in favor of the defendant [citation] — unless the defense is inconsistent with the defendant's theory of the case [citation]." (People v. Salas (2006) 37 Cal.4th 967, 982.) Similarly, "[a] trial court need only give those requested instructions supported by evidence that is substantial. [Citation.]" (People v. Bacigalupo (1991) 1 Cal.4th 103, 125, vacated and remanded on other grounds sub nom. Bacigalupo v. California (1992) 506 U.S. 802.)
The trial court's duty to instruct on defenses is often phrased in the disjunctive, "arising 'only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant's theory of the case.' [Citations.]" (People v. Barton (1995) 12 Cal.4th 186, 195, italics added; see, e.g., People v. Nguyen (2015) 61 Cal.4th 1015, 1052; People v. Booker (2011) 51 Cal.4th 141, 179; People v. Sedeno (1974) 10 Cal.3d 703, 716, overruled on another ground in People v. Breverman (1998) 19 Cal.4th 142, 165, disapproved on another ground in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.) As the California Supreme Court made clear in Flannel, however, such phraseology is incorrect. (People v. Flannel, supra, at pp. 684-685, fn. 12.)
"In determining whether the evidence is sufficient to warrant a jury instruction, the trial court does not determine the credibility of the defense evidence, but only whether 'there was evidence which, if believed by the jury, was sufficient to raise a reasonable doubt . . . .' [Citations.]" (People v. Salas, supra, 37 Cal.4th at pp. 982-983.) "The court must 'take the proffered evidence as true, "regardless of whether it was of a character to inspire belief. [Citations.]" [Citation.] " 'Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.' [Citations.]" ' [Citation.] On appeal, we independently review the court's refusal to instruct on a defense. [Citation.]" (People v. Orlosky (2015) 233 Cal.App.4th 257, 270.)
"[A]n offensive touching, although it inflicts no bodily harm, may nonetheless constitute a battery, which the victim is privileged to resist with such force as is reasonable under the circumstances." (People v. Myers (1998) 61 Cal.App.4th 328, 335; see §§ 242, 693.) "A person attacked is not bound to retreat but is entitled to stand and defend himself and act as a reasonable man under the circumstances as they appear to him. [Citation.]" (People v. Duchon (1958) 165 Cal.App.2d 690, 693.) For a battery to be in self-defense, however, "the defendant must actually and reasonably believe in the need to defend. 'Although the belief in the need to defend must be objectively reasonable, a jury must consider what "would appear to be necessary to a reasonable person in a similar situation and with similar knowledge . . . ." [Citation.]' " (People v. Jefferson (2004) 119 Cal.App.4th 508, 518; see People v. Humphrey (1996) 13 Cal.4th 1073, 1082.)
"Self-defense is not . . . a recognized defense to a charge of robbery." (People v. Costa (1963) 218 Cal.App.2d 310, 316.) We assume, for the sake of argument, that evidence of self-defense could be used somehow to show the intent to steal arose only after force was used, or that the force was not motivated by the intent to steal. (See People v. Anderson, supra, 51 Cal.4th at p. 994; People v. Turner, supra, 50 Cal.3d at p. 688.)
Here, however, there was no substantial evidence defendant was acting in self-defense, that he only formed the intent to take the cigarettes after the altercation concluded, or that he used force to defend himself against a perceived threat instead of to take. The surveillance video clearly shows defendant approach the C store area, stick his head and part of his upper body over the gate and into the area, and look down at the inside of the gate where a latch or lock was likely to be. The evidence at trial suggested no reason why he would seek to enter the C store area other than to take something. According to the video, Ortiz walked over to the gate. As he uncrossed his arms and started to hold out his hands, defendant burst through the gate and started fighting with Ortiz. Defendant did not try to get away, but drove Ortiz to the other end of the C store enclosure, then held him with a hand to his throat area while grabbing a pack of cigarettes. In addition, the evidence was uncontradicted that defendant said he was going to come in and get what he wanted and he did not care. Regardless of when, during the course of the altercation, that statement was made, it and the video establish defendant's intent from the outset was to steal a pack of cigarettes, and thus the intent to steal motivated defendant's use of force. (See People v. Gomez, supra, 43 Cal.4th at pp. 264-265; People v. Estes (1983) 147 Cal.App.3d 23, 28.) There was no substantial evidence of self-defense and, under the circumstances, instructing on it would have added a nonexistent element to the offense of robbery. Accordingly, the trial court properly refused to give CALCRIM No. 3470. (See People v. Anderson, supra, 51 Cal.4th at p. 999.)
II
DENIAL OF NEW TRIAL MOTION
A. Background
After the guilty verdict was returned, the jury was polled. All jurors confirmed that was their personal verdict, although the trial court agreed with defense counsel that Juror No. 11 was a bit slower to say yes than the other jurors.
Defendant subsequently moved for a new trial based on (1) the trial court's refusal to instruct on self-defense and (2) juror misconduct. In support, he attached a declaration from Juror No. 11, who stated that after trial, he told defense counsel he still felt there was reasonable doubt. Juror No. 11 represented that he initially voted not guilty, but eventually changed his verdict to guilty even though he felt there was reasonable doubt, and that he voted guilty because he felt pressured by the other jurors. He stated that after watching the video, he told the other jurors that the clerk used force first, but everyone said he was wrong, so he changed his vote to guilty. However, he believed that the clerk started the physical fight and defendant defended himself. It might have helped had there been instructions on self-defense. Juror No. 11 also related that during deliberations, some of the jurors said things like " 'Well, what if that was your kid.' " Defendant also attached a declaration from Juror No. 8, who stated the guilty verdict was her own decision and was not pressured, and that she felt defendant used force to defend against the clerk trying to stop him from stealing. She stated that an instruction on self-defense might have helped; she may have reached the same conclusion, but such an instruction "would have clarified it."
The People opposed the motion. The prosecutor argued evidence of jurors' mental processes was barred by Evidence Code section 1150, subdivision (a); defendant had not made a strong enough showing of juror misconduct to support an evidentiary hearing; and there was no misconduct that would raise a presumption of bias.
At the hearing on the motion, defense counsel argued the statement noted by Juror No. 11 was the equivalent of jurors placing themselves in the victim's shoes, and was conduct prohibited by law. Counsel also observed that jurors sent out a note requesting an additional explanation concerning "force," but then returned a verdict a few minutes later. Counsel argued this confirmed Juror No. 11 was intimidated by other jurors. Finally, she argued that had the jury been given a self-defense instruction, the outcome of trial would have been different. The prosecutor essentially reiterated what was in his written response, and asked the court to find that the basis for the claim of misconduct was simply the jurors' mental processes and so was inadmissible.
The jury first retired to deliberate at 2:02 p.m. on July 9, 2013. Shortly after 4:00 that afternoon, jurors sent out a note that read, "please define the word or use of the word 'FORCE' as it [a]ppears in Pen Code 211 #4." The court and counsel were discussing that note at approximately 4:35 p.m., when the jury sent out a second note, indicating a verdict had been reached. The jury was brought back the next morning for the taking of the verdict, and the foreperson confirmed they had indeed reached a verdict.
The trial court stated it had reviewed the trial testimony and store video, and it did not see any basis for self-defense instructions. As to the jury misconduct issue, the court found the juror declarations amount to the jurors' subjective reasoning or thought processes for the most part. As for the statement made during deliberations, the court saw no basis to hold an evidentiary hearing, because assuming the statement was made and was admissible, it did not amount to misconduct. The court found defendant received a fair trial, and so denied the motion for a new trial.
Defendant now says the trial court erred. We conclude the motion for a new trial was properly denied. B. Analysis
"When a verdict has been rendered . . . against the defendant, the court may, upon his application, grant a new trial . . . [¶] . . . [¶] 3. When the jury has . . . been guilty of any misconduct by which a fair and due consideration of the case has been prevented; [¶] . . . [¶] 5. When the court has misdirected the jury in a matter of law . . . ." (§ 1181.)
"The trial court is vested with broad discretion to act upon a motion for new trial. [Citation.]" (People v. Dykes (2009) 46 Cal.4th 731, 809.) Thus, generally speaking, " ' "[a] trial court's ruling on a motion for new trial is so completely within that court's discretion that a reviewing court will not disturb the ruling absent a manifest and unmistakable abuse of that discretion." ' [Citations.]" (People v. Thompson (2010) 49 Cal.4th 79, 140.) When the motion is based on jury misconduct, however, "the reviewing court should accept the trial court's factual findings and credibility determinations if they are supported by substantial evidence, but must exercise its independent judgment to determine whether any misconduct was prejudicial. [Citations.]" (People v. Dykes, supra, 46 Cal.4th at p. 809.)
In determining whether the trial court erred, we — as did the trial court — must first determine to what extent, if any, the affidavits supporting the new trial motion were admissible. As the California Supreme Court has explained:
"Evidence Code section 1150, subdivision (a), provides: 'Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be received as to statements made, or conduct, conditions, or events occurring, either within or without the jury room, of such a character as is likely to have influenced the verdict improperly. No evidence is admissible to show the effect of such statement, conduct, condition, or event upon a juror either in influencing him to assent or to dissent from the verdict or concerning the mental processes by which it was determined." ([Original italics].)
"This statute distinguishes 'between proof of overt acts, objectively ascertainable, and proof of the subjective reasoning processes of the individual juror, which can be neither corroborated nor disproved . . . .' [Citation.] 'This limitation prevents one juror from upsetting a verdict of the whole jury by impugning his own or his fellow jurors' mental processes or reasons for assent or dissent. The only improper influences that may be proved under [Evidence Code] section 1150 to impeach a verdict, therefore, are those open to sight, hearing, and the other senses and thus subject to corroboration.' [Citations.]" (People v. Steele (2002) 27 Cal.4th 1230, 1260-1261.)
Among the overt acts that are admissible under Evidence Code section 1150, subdivision (a) are statements. (In re Stankewitz (1985) 40 Cal.3d 391, 398; People v. Engstrom (2011) 201 Cal.App.4th 174, 183-184.) Even when such evidence may be received, however, "it must be admitted with caution." (In re Stankewitz, supra, 40 Cal.3d at p. 398.) Our state high court has "emphasize[d] that, when considering evidence regarding the jurors' deliberations, a trial court must take great care not to overstep the boundaries set forth in Evidence Code section 1150. The statute may be violated not only by the admission of jurors' testimony describing their own mental processes, but also by permitting testimony concerning statements made by jurors in the course of their deliberations." (People v. Hedgecock (1990) 51 Cal.3d 395, 418-419.) "Statements have a greater tendency than nonverbal acts to implicate the reasoning processes of jurors — e.g., what the juror making the statement meant and what the juror hearing it understood." (In re Stankewitz, supra, 40 Cal.3d at p. 398.) "In rare circumstances a statement by a juror during deliberations may itself be an act of misconduct, in which case evidence of that statement is admissible. [Citation.] But when a juror in the course of deliberations gives the reasons for his or her vote, the words are simply a verbal reflection of the juror's mental processes. Consideration of such a statement as evidence of those processes is barred by Evidence Code section 1150." (People v. Hedgecock, supra, 51 Cal.3d at p. 419.)
With these principles in mind, we turn to the juror declarations submitted in support of defendant's new trial motion. With one possible exception, which we discuss post, the declarations ran afoul of Evidence Code section 1150, subdivision (a) and so were inadmissible. " ' "[A] verdict may not be impeached by inquiry into the juror's mental or subjective reasoning processes, and evidence of what the juror 'felt' or how he [or she] understood the trial court's instructions is not competent." ' [Citations.]" (People v. Lindberg (2008) 45 Cal.4th 1, 53; accord, People v. Steele, supra, 27 Cal.4th at p. 1261.) "The mere fact that such mental process was manifested in conversation between jurors during deliberations does not alter this rule. [Citation.]" (People v. Sanchez (1998) 62 Cal.App.4th 460, 476.) Similarly, the reasons Juror No. 11 changed his vote to guilty were "demonstrative only of [his] mental processes and the subjective considerations which influenced [his] verdict," and were also inadmissible. (People v. Peavey (1981) 126 Cal.App.3d 44, 51.)
We assume (as did the trial court) the statement recounted by Juror No. 11, " 'Well, what if that was your kid,' " was admissible. We next determine whether it constituted misconduct. In this regard, "[a]n accused has a constitutional right to a trial by an impartial jury. [Citations.] An impartial jury is one in which no member has been improperly influenced [citations] and every member is ' "capable and willing to decide the case solely on the evidence before it" ' [citation]." (In re Hamilton (1999) 20 Cal.4th 273, 293-294.) "When the overt event is a direct violation of the oaths, duties, and admonitions imposed on . . . jurors, such as when a juror . . . shares improper information with other jurors, the event is called juror misconduct. [Citations.]" (Id. at p. 294.)
" 'Misconduct by a juror . . . usually raises a rebuttable "presumption" of prejudice. [Citations.]' [Citation.] However, '[t]he introduction of much of what might strictly be labeled "extraneous law" cannot be deemed misconduct. The jury system is an institution that is legally fundamental but also fundamentally human. Jurors bring to their deliberations knowledge and beliefs about general matters of law and fact that find their source in everyday life and experience. That they do so is one of the strengths of the jury system. It is also one of its weaknesses; it has the potential to undermine determinations that should be made exclusively on the evidence introduced by the parties and the instructions given by the court. Such a weakness, however, must be tolerated. "[I]t is an impossible standard to require . . . [the jury] to be a laboratory, completely sterilized and freed from any external factors." [Citation.] Moreover, under that "standard" few verdicts would be proof against challenge.' [Citation.] 'The safeguards of juror impartiality . . . are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote.' [Citation.]" (People v. Danks (2004) 32 Cal.4th 269, 302-303.)
Defendant contends the statements by other jurors pressuring Juror No. 11 to think about the store clerk as if the clerk were Juror No. 11's own child were an appeal to bias and showed jurors disregarded the court's instruction to follow the law and not to "let bias, sympathy, prejudice or public opinion influence" their decision. We reject this reading of the juror's declaration. It is not clear whether the statement referred to one of the store clerks or to defendant. Even assuming it referred to a clerk, it lacks any context. At most, it appears to be an attempt to persuade, rather than an indication of violation of the court's instructions. " '[J]urors can be expected to disagree, even vehemently, and to attempt to persuade disagreeing fellow jurors by strenuous and sometimes heated means.' [Citation.]" (People v. Thompson, supra, 49 Cal.4th at p. 141.) The comment did not rise to the level of misconduct. (Compare In re Stankewitz, supra, 40 Cal.3d at p. 396 with People v. Thompson, supra, 49 Cal.4th at pp. 140-141.)
The trial court was not required to hold an evidentiary hearing to determine the meaning or context of the statement. Such a hearing "should be held only when the defense has come forward with evidence demonstrating a strong possibility that prejudicial misconduct has occurred." (People v. Hedgecock, supra, 51 Cal.3d at p. 419, italics added.) Defendant did not do so here.
The trial court properly denied the motion for a new trial.
III
PROPOSITION 47'S EFFECT ON PRIOR PRISON TERM ENHANCEMENTS
A. Background
The information in this case alleged, and the trial court found, defendant had suffered the following enhancements under section 667.5, subdivision (b):
— A conviction for violating Health and Safety Code section 11377, subdivision (a), suffered on or about March 8, 2007, in Kern County Superior Court case No. BF116218A.
— A conviction for violating section 69, suffered on or about March 8, 2007, in Kern County Superior Court case No. BF115630A.
— A conviction for violating Health and Safety Code section 11377, subdivision (a), suffered on or about July 6, 2010, in Kern County Superior Court case No. SF015607A.
— A conviction for violating Health and Safety Code section 11377, subdivision (a), suffered on or about January 6, 2012, in Kern County Superior Court case No. SF016331A.
— A conviction for violating Health and Safety Code section 11377, subdivision (a), suffered on or about October 31, 2012, in Kern County Superior Court case No. BF143806A.
Defendant was sentenced on September 18, 2013. At sentencing, the court found defendant served a single prison term in cases Nos. BF116218A and BF115630A. Accordingly, it struck the punishment as to case No. BF116218A, and imposed a one-year term for case No. BF115630A. It explained that case No. BF115630A was a conviction for violating section 69, and so involved some sort of violence. The court also imposed a one-year term for defendant's prior conviction in case No. SF016331A, but struck the punishment for defendant's prior convictions in cases Nos. SF015607A and BF143806A. The court explained it felt a seven-year total term was a just punishment under the circumstances of the case, and in light of defendant's mental health issues.
Proposition 47 went into effect on November 5, 2014. (Cal. Const., art. II, § 10, subd. (a).) On December 18, 2014, defendant filed petitions under section 1170.18 in cases Nos. BF116218A, BF143806A, SF015607A, and SF016331A. On April 6, 2015, the petitions were granted. As relevant here, the court reclassified the conviction in case No. SF016331A as a misdemeanor "for all purposes." It expressly ordered no further parole or sentence modification.
The issue before us is whether the additional one-year term imposed by the trial court pursuant to section 667.5, subdivision (b), for defendant's prior conviction in case No. SF016331A must now be stricken because, subsequent to defendant's September 18, 2013, sentencing in the current case, that prior conviction was reduced to a misdemeanor pursuant to section 1170.18, subdivision (f). We conclude the answer is yes. B. Analysis
Defendant originally claimed the trial court imposed enhancements in the current case based on allegations three and five, i.e., cases Nos. SF015607A and BF143806A. That assertion was based on a misreading of the record. As shown by pages 457 and 458 of the reporter's transcript, the trial court imposed one enhancement based on defendant's conviction and service of a prison term, in case No. BF115630A, for violating section 69; and a second enhancement for defendant's conviction and service of a prison term, in case No. SF016331A, for violating Health and Safety Code section 11377, subdivision (a). As defendant recognizes, Proposition 47 had no impact on section 69, for which defendant was convicted in case No. BF115630A. Accordingly, the one-year enhancement imposed, pursuant to section 667.5, subdivision (b), with respect to that case is not affected by Proposition 47.
The Attorney General initially contended defendant forfeited his Proposition 47 claim by failing to raise it in the lower court. The Attorney General argued: "[Defendant's] petition for recall of his sentence below did not mention the section 667.5, subdivision (b), enhancements imposed in his case. [Citation.] Neither he nor his appointed counsel challenged the enhancements at the lower court hearing. [Citation.] He never invoked section 1170.18, subdivision (f), to seek reclassification of any of his prior felony convictions." To the contrary, defendant's petitions in cases Nos. BF116218A, SF015607A, and SF016331A all expressly requested that his felony convictions be reduced to misdemeanors under section 1170.18, subdivisions (f) and (g). More importantly, defendant had already filed his notice of appeal, and his appeal was pending, in the case in which the section 667.5, subdivision (b) enhancements were imposed. While the lower court had jurisdiction to rule on defendant's section 1170.18 applications, it had no jurisdiction to alter the sentence imposed in defendant's current robbery case while that case was on appeal. (People v. Alanis (2008) 158 Cal.App.4th 1467, 14721473 & cases cited; cf. People v. Superior Court (Gregory) (2005) 129 Cal.App.4th 324, 331332.) Thus, it would have been futile for defendant to challenge the enhancements in the hearing on his applications. Accordingly, we reject any claim of forfeiture.
Section 1170.18, enacted as part of Proposition 47, provides in pertinent part:
"(f) A person who has completed his or her sentence for a conviction . . . of a felony . . . who would have been guilty of a misdemeanor under this act had this act been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in his or her case to have the felony conviction or convictions designated as misdemeanors.
"(g) If the application satisfies the criteria in subdivision (f), the court shall designate the felony offense or offenses as a misdemeanor."
Defendant was convicted, in case No. SF016331A, of possession of a controlled substance in violation of Health and Safety Code section 11377, subdivision (a). At the time, the offense was a "wobbler," meaning it could be a felony or a misdemeanor, depending on the punishment imposed. (Former Health & Saf. Code, § 11377, subd. (a); see § 17, subd. (a).) As defendant served a prison term for the offense, it was classified as a felony. (See § 17, subd. (b).) Post-Proposition 47, Health and Safety Code section 11377, subdivision (a) is a misdemeanor, punishable "by imprisonment in a county jail for a period of not more than one year," unless the offender has certain specified prior convictions. According to the probation officer's report, defendant has no such prior convictions, and the Attorney General does not claim otherwise. Thus, had the Act been in effect at the time defendant committed the violation of Health and Safety Code section 11377, subdivision (a) for which he was convicted in case No. SF016331A, he could only have been convicted of a misdemeanor.
The prior convictions enumerated in the statute are "for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 of the Penal Code or for an offense requiring registration pursuant to subdivision (c) of Section 290 of the Penal Code." (Health & Saf. Code, § 11377, subd. (a).)
Subdivision (k) of section 1170.18, provides in pertinent part:
"Any felony conviction that is . . . designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6."
The specified statutes contain restrictions and prohibitions on firearm possession for certain persons. --------
Defendant argues his conviction in case No. SF016331A is now "a misdemeanor for all purposes" except certain firearm restrictions; hence, the section 667.5, subdivision (b) enhancement that was based on that conviction must be stricken, even though the conviction was not reduced to a misdemeanor until after the enhancement was imposed in defendant's current case. Recently, the California Supreme Court agreed.
In Buycks, supra, 5 Cal.5th 857, the California Supreme Court concluded that "a successful Proposition 47 petitioner may subsequently challenge, under subdivision (k) of section 1170.18, any felony-based enhancement that is based on that previously designated felony, now reduced to misdemeanor, so long as the judgment containing the enhancement was not final when Proposition 47 took effect." (Id. at p. 879.) The court explained:
"[I]n describing the elements required for the imposition of a section 667.5, subdivision (b) enhancement, we have stated it 'requires proof that the defendant: (1) was previously convicted of a felony; (2) was imprisoned as a result of that conviction; (3) completed that term of imprisonment; and (4) did not remain free for five years of both prison custody and the commission of a new offense resulting in a felony conviction.' [Citation.]
"With this understanding, the resentencing of a prior underlying felony conviction to a misdemeanor conviction negates an element required to support a section 667.5 one-year enhancement. A successful Proposition 47 petition or application can reach back and reduce a defendant's previous felony conviction to a misdemeanor conviction because the defendant 'would have been guilty of a misdemeanor under' the measure had it 'been in effect at the time of the offense.' (§ 1170.18, subds. (a), (f).) Therefore, if the 'felony conviction that is recalled and resentenced . . . or designated as a misdemeanor' conviction becomes 'a misdemeanor for all purposes,' then it can no longer be said that the defendant 'was previously convicted of a felony' [citation], which is a necessary element for imposing the section 667.5, subdivision (b) enhancement. Instead, 'for all purposes,' it can only be said that the defendant was previously convicted of a misdemeanor.
"Consequently, section 1170.18, subdivision (k) can negate a previously imposed section 667.5, subdivision (b), enhancement when the underlying felony attached to that enhancement has been reduced to a misdemeanor under the measure." (Buycks, supra, at pp. 889-890, fn. omitted.)
The Attorney General concedes the one-year prior prison term enhancement based on case No. SF016331A, that was imposed as part of defendant's sentence in his current case, must be stricken under Buycks. In Buycks, the California Supreme Court noted that "when part of a sentence is stricken on review, on remand for resentencing 'a full resentencing as to all counts is appropriate, so the trial court can exercise its sentencing discretion in light of the changed circumstances.' [Citation.]" (Buycks, supra, 5 Cal.5th at p. 893.) The court found this rule applicable in the Proposition 47 context. (Buycks, supra, at pp. 893-894.) It further found, however, that where the sentencing court had imposed the maximum possible term, regardless of whether the enhancement at issue was stricken, there was "no need to remand the matter to the trial court to exercise its sentencing discretion anew." (Id. at p. 896, fn. 15.) We see no need for a remand here, where the trial court would be without discretion, under Buycks, to impose any of the section 667.5, subdivision (b) enhancements for which it previously struck the punishment.
DISPOSITION
The one-year enhancement imposed, pursuant to Penal Code section 667.5, subdivision (b), for defendant's conviction in Kern County Superior Court case No. SF016331A, is stricken. As so modified, the judgment is affirmed.
The trial court is directed to cause to be prepared an amended abstract of judgment reflecting said modification, and to forward a certified copy of same to the appropriate authorities.
/s/_________
DETJEN, J. WE CONCUR: /s/_________
LEVY, Acting P.J. /s/_________
POOCHIGIAN, J.