Opinion
E067115
06-26-2018
THE PEOPLE, Plaintiff and Respondent, v. EDWARD L. SADDLER, Defendant and Appellant.
Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI1404210) OPINION APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed as modified. Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant Edward L. Saddler repeatedly punched his wife and dragged her by her hair during an argument in a parking lot while witnesses watched. A jury found defendant guilty of kidnapping (Pen. Code, § 207, subd. (a); count 1) and inflicting corporal injury on a spouse (§ 273.5, subd. (a); count 2). In a bifurcated proceeding, the trial court found true that defendant had suffered two prior strike convictions (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)), one prior serious felony conviction (§ 667, subd. (a)), and two prior prison terms (§ 667.5, subd. (b)). Defendant was subsequently sentenced to an indeterminate term of 25 years to life, plus a determinate term of 16 years in state prison as follows: 25 years to life on count 1, a consecutive eight years on count 2, plus three years for three prior prison terms, plus five years for the prior serious felony conviction.
All future statutory references are to the Penal Code unless otherwise stated.
The trial court's findings on the prior allegations reflected in the reporter's transcript are confusing. During the trial on the priors, the court initially found two prior serious felonies true under section 667, subdivision (a), then stated it found only one true. Approximately 18 months later at sentencing, the court again stated there were two prior serious felony convictions, but "one . . . is stricken." The court imposed sentence on only one prior serious felony conviction under section 667, subdivision (a).
The first amended information alleged two prior serious felony convictions for a 1987 robbery conviction (case No. CR83685) and a 1991 robbery conviction (case No. CR116605). However, there was only one prior serious felony that could be found true, the 1987 robbery conviction in case No. CR83685, since at the court trial on the priors, the prosecutor informed the court he was unable to obtain anything to support the prior conviction pertaining to defendant's 1991 robbery conviction in case No. CR116605.
We note that the trial court had found two prior prison terms true, not three.
Sentencing in this case was delayed pending the outcome of defendant's Proposition 47 petition to the San Diego Superior Court. At sentencing, the court accepted defense counsel's oral representation and the prosecutor stipulated that defendant's two prior felony convictions for a 1990 petty theft with a prior (§ 666) in case No. CR116605 and a 1996 second degree burglary (§ 459) in case No. SCN054287 were reduced to misdemeanors.
On appeal, defendant contends (1) two one-year prior prison term enhancements must be stricken because the prior prison terms were reduced to misdemeanors under Proposition 47; (2) one prior prison term must be stricken because the trial court adjudicated only two prior prison terms, not three; (3) the prosecutor committed misconduct during closing argument in violation of his due process rights; and (4) the trial court abused its discretion and violated his constitutional right to due process in denying his motion to strike one of his two prior strike convictions. We agree with the parties that defendant's prior prison terms must stricken, and will modify the judgment accordingly. We reject defendant's remaining contentions and affirm.
II
FACTUAL AND PROCEDURAL BACKGROUND
R.R. and defendant were married in July 2014. In October 2014, R.R. discovered defendant was having an affair, and she moved from San Diego to Victorville. In November 2014, defendant and R.R. reconciled and defendant moved to Victorville.
On November 9, 2014, while defendant was driving R.R. in his car, they began arguing about defendant's infidelity. Defendant pulled into a parking lot at Brentwood Park in Victorville and R.R. got out of the car. R.R. walked to a grassy area and sat on the grass under a tree. Defendant drove away, returned about 10 minutes later, and told R.R. to get in the car. R.R. refused, and defendant drove his car onto the grass towards R.R. Defendant chased R.R. with his car around a tree.
Defendant eventually exited his vehicle. Defendant was upset, cussed at R.R., and told her to get in the car. R.R. refused, and defendant tried to force her into the car. Defendant pulled R.R.'s arm and hair, and hit her in the face and body. R.R. still refused, and defendant left the area and drove to the parking lot. Defendant returned a short time later and, as R.R. was sitting with a group of women, told R.R. to get in the car. R.R. told one of the women that defendant had her keys and all her stuff and that she was afraid of defendant. After R.R. again refused, defendant grabbed and pulled R.R. R.R. fell to the ground, and defendant dragged her toward the car by her foot. One of the women took a video of the incident with her cell phone. At some point, R.R. ran toward defendant's car. Defendant chased R.R., grabbed her, pushed her in the car, and then drove away.
Several witnesses observed the incident and saw defendant drive his car at R.R. around a tree. Defendant was driving "very fast" and came "[v]ery close" to hitting R.R. One of the witnesses called 911. Witnesses also saw defendant get out of his car, chase R.R., throw her to the ground, repeatedly punch her in the face and body, and drag her towards his car. R.R. tried to get away. In addition, witnesses observed defendant exit his car and drag R.R. to the car by her hair and by her feet while R.R. was screaming. Witnesses also saw defendant grab R.R. by the back of her head and push her in the car.
When defendant drove past their residence, R.R. became scared, climbed out of the passenger window, and ran from the car. San Bernardino County Deputy Richard Rees found defendant and R.R. a couple miles from Brentwood Park. Defendant's car was parked on the road. R.R. was walking and defendant was about 15 yards behind her. Defendant was pointing his finger at R.R. and yelling at her. R.R. was shaking and seemed afraid. R.R.'s neck was red and had fresh scratch marks. R.R. did not want to talk to the deputy. R.R. later told another deputy that she was afraid of defendant and that she feared defendant would see her cooperating with law enforcement and send people to her house to harm her.
At trial, R.R. testified that defendant pulled her hair and dragged her by the feet but he did not punch or slap her. She also testified that she got up and walked to the car and that she was embarrassed and wanted to leave the park. She also stated that she was scared of defendant. R.R. acknowledged having testified at the preliminary hearing that she did not feel she was kidnapped. R.R. also acknowledged having written an affidavit stating she did not feel she was kidnapped, but she believed domestic violence had occurred.
III
DISCUSSION
A. Prior Prison Terms
As described, the trial court found true that defendant had suffered two prior prison terms within the meaning of section 667.5, subdivision (b). Subsequently, defendant's prior convictions for petty theft with a prior and second degree burglary were redesignated as misdemeanors prior to his sentencing. Regardless, the trial court imposed three one-year enhancements under section 667.5, subdivision (b), for three prior prison terms.
Defendant argues the trial court erred when it declined to strike the two prior prison term enhancements that had been reduced to misdemeanors. He also asserts the trial court erred in imposing three one-year enhancements because the court only made true findings as to two prior prison term enhancements. The People concede that all three of the prior prison term enhancements must be stricken. We also agree.
On November 4, 2014, California voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47 or the Act), which went into effect the next day. (Cal. Const., art. II, § 10, subd. (a); People v. Rivera (2015) 233 Cal.App.4th 1085, 1089.) The Act reduced certain felonies to misdemeanors for eligible offenders. It created two separate mechanisms for redesignating the conviction as misdemeanors, depending on whether the offender is currently serving a sentence for an eligible felony conviction or has completed his sentence. (People v. Abdallah (2016) 246 Cal.App.4th 736, 743-744 (Abdallah).) Relevant to the instant appeal, section 1170.18, subdivision (f), authorizes the court to redesignate convictions for defendants who have already completed their sentences. (Abdallah, at pp. 743-744.) Based on its authority under section 1170.18, subdivision (f), the San Diego County Superior Court redesignated defendant's prior convictions for petty theft with a prior and second degree burglary to misdemeanors.
Section 667.5, subdivision (b), imposes a one-year enhancement for a prior separate prison term served on a felony conviction. Section 1170.18, subdivision (k), provides that once redesignated, prior convictions "shall be considered a misdemeanor for all purposes" except as it relates to possession or control of a firearm, an exception not applicable here. Because defendant's prior convictions were redesignated as misdemeanors prior to his sentencing in September 2016 in this case, the enhancements pursuant to section 667.5, subdivision (b), cannot be imposed. Appellate courts have held that the plain language of the statute and its " 'for all purposes' " requirement precludes the imposition of the prior prison term enhancements under these circumstances. (People v. Call (2017) 9 Cal.App.5th 856, 865 (Call); People v. Kindall (2016) 6 Cal.App.5th 1199, 1205 (Kindall); Abdallah, supra, 246 Cal.App.4th at p. 746.)
The application of Proposition 47 to sentencing enhancements under Penal Code section 667.5, subdivision (b), is currently under review by the California Supreme Court in People v. Valenzuela (2016) 244 Cal.App.4th 692, review granted March 30, 2016, S232900, as well as several other cases in which review has been granted and held pending resolution of Valenzuela. Pending final resolution of the issue, the courts of appeal have attempted to grapple with its various permutations.
In Abdallah, supra, 246 Cal.App.4th 736, the defendant was tried and convicted prior to the enactment of Proposition 47, but sentenced thereafter. (Abdallah, at p. 739.) The trial court imposed a prison sentence including, among other things, a one-year enhancement for a felony prison prior (§ 667.5, subd. (b)), just after it had reduced the felony underlying that enhancement to a misdemeanor pursuant to Proposition 47. (Abdallah, at p. 740.) The Court of Appeal found error, holding that the reduction of a prior felony to a misdemeanor pursuant to Proposition 47 precludes the trial court from subsequently relying upon it as the basis for imposing an enhancement under section 667.5, subdivision (b). (Abdallah, at p. 746.) As Abdallah points out, the California Supreme Court has described the elements required to qualify for a prison prior enhancement as follows: "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." (People v. Tenner (1993) 6 Cal.4th 559, 563; see Abdallah, at p. 742.) And as Abdallah concludes, the first of those required elements is eliminated when the defendant's prior conviction is redesignated a misdemeanor " 'for all purposes' " under section 1170.18, subdivision (k). (Abdallah, at p. 746.)
In People v. Jones (2016) 1 Cal.App.5th 221 (Jones), review granted September 14, 2016, S235901, this court affirmed the trial court's order denying the defendant's motion to strike a prison prior enhancement of his sentence based on the circumstance that the underlying felony conviction had been reclassified as a misdemeanor after his conviction was final and he had begun serving his prison sentence. (Id. at p. 228.) We held that "section 1170.18, subdivisions (a), (b), (f), and (g) explicitly allow offenders to request and courts to grant retroactive designation of offenses . . . but no provision allows offenders to request or courts to order retroactively striking or otherwise altering an enhancement based on such a redesignated prior offense." (Jones, at p. 230.) We found that "the direction of section 1170.18, subdivision (k) that any redesignated conviction 'shall be considered a misdemeanor for all purposes,' applies, at most, prospectively to preclude future or non-final sentence enhancements based on felony convictions redesignated as misdemeanors under Proposition 47." (Jones, at p. 230.)
Together, Abdallah and Jones teach that once a conviction is reduced to a misdemeanor pursuant to Proposition 47, it may not subsequently be used as the basis for enhancing a new sentence, but section 1170.18 does not provide a mechanism for recall of a sentence and resentencing solely to strike an enhancement that is part of a sentence that is otherwise final. Defendant successfully petitioned for redesignation prior to sentencing here. Accordingly, we apply Proposition 47 relief prospectively, as was done in Call, supra, 9 Cal.App.5th 856, Kindall, supra, 6 Cal.App.5th 1199, Jones, supra, 1 Cal.App.5th 221, and Abdallah, supra, 246 Cal.App.4th 736. It follows that the trial court had no authority to impose a prior prison term enhancement based on a felony conviction that had been previously designated as a misdemeanor pursuant to Proposition 47. (Abdallah, at p. 746.) The trial court also erred in imposing three one- year enhancements because it had made true findings only on two prior prison term enhancements.
Based on the foregoing, we strike the three one-year prior prison term enhancements pursuant to section 667.5, subdivision (b).
B. Prosecutorial Misconduct
Defendant argues reversal is required because the prosecutor committed prejudicial misconduct during closing argument. Defendant specifically asserts that the prosecutor committed misconduct by telling the jurors "not to over think" or " 'look for outside things,' " equating the reasonable doubt standard to "common sense," and asking jurors to "take a stand against domestic violence."
1. Relevant Background
The first instance of prosecutorial misconduct defendant complains about occurred at the beginning of the prosecutor's argument, when the prosecutor argued to the jury, "Sometimes in these cases it's important to remember that it's good not to over think things." Defense counsel did not object to that statement.
The second incident occurred when the prosecutor stated: "When you look at the jury instruction itself, it says only, that you must have an abiding conviction that the charge is true. Considering what that means, I ask you all to use your common sense. Don't try to grasp straws over here or over there. Everyone was picked for this jury because they seemed to have common sense. And I ask everyone to apply that common sense in looking at the evidence in this case." Defense counsel objected on the ground that the prosecutor's argument "minimize[ed] the standard of beyond a reasonable doubt." The court did not sustain or overrule the objection, but admonished the jury as follows: "Ladies and gentlemen, what the attorneys say about the law is not going to make a determination for you in what the law is that applies. The Court has given you the instructions on the law. They can argue what they want to as long as you understand you have to follow my instructions on the law that applies. [¶] If [the prosecutor] is saying anything that in any way is asking you to do something other than meet the standard of proof beyond a reasonable doubt as I explained it—I don't believe he has, [defense counsel]. [¶] . . . [¶] . . . But if he has in any way misstated the requirements, then you have to go by the law as I explained it to you."
The third comment by the prosecutor which defendant complains about is the prosecutor's statement to the jury "don't try to look for outside things." Defense counsel did not object to that statement.
The fourth instance defendant complains of occurred during the prosecutor's rebuttal argument to the jury when the prosecutor commented "Now, ladies and gentlemen, today we are asking you to take a stand against domestic violence." Defense counsel objected to the statement. The court sustained the objection and admonished the jury: "You don't decide this case based upon public opinion or anything other than the facts. It's not against domestic violence. We've already said the law is against domestic violence. The issue is just making a decision on what happened in this particular case." The prosecutor then concluded his rebuttal argument by stating to the jury "We are asking you to take a stand against the domestic violence in this case, ladies and gentlemen, and we are asking you to return a verdict of guilt on both Count 1 and Count 2. Thank you."
2. Applicable Principles
We begin with the well-settled law on prosecutorial misconduct. "A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.] A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' [Citations.]" (People v. Cole (2004) 33 Cal.4th 1158, 1202 (Cole); see People v. Cortez (2016) 63 Cal.4th 101, 130 (Cortez); People v. Parson (2008) 44 Cal.4th 332, 359; Darden v. Wainwright (1986) 477 U.S. 168, 181.)
Counsel during closing argument are given significant leeway to discuss the legal and factual merits of a case. (People v. Centeno (2014) 60 Cal.4th 659, 666 (Centeno).) "A prosecutor may fairly comment on and argue any reasonable inferences from the evidence." (People v. Woods (2006) 146 Cal.App.4th 106, 112 (Woods).) A prosecutor also may comment on the " ' "state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses. [Citations.]" [Citations.]' " (People v. Lewis (2009) 46 Cal.4th 1255, 1304, quoting People v. Vargas (1973) 9 Cal.3d 470, 475). It is also permissible for a prosecutor to urge the jurors to use their "common sense" and experience when evaluating the weight of all of the evidence presented during trial, consistent with their role under the law as factfinders. (People v. Venegas (1998) 18 Cal.4th 47, 80 ["jurors are permitted to rely on their own common sense and good judgment in evaluating the weight of the evidence presented to them"]; People v. Rich (1988) 45 Cal.3d 1036, 1091 [no misconduct where prosecutor's remarks on psychiatric evidence were for the purpose of encouraging the jury to " 'use [its] own common sense' "]; see CALCRIM No. 226 ["In deciding whether testimony is true and accurate, use your common sense and experience"].)
However, it is improper for counsel to misstate the law in closing argument and, in particular, for a prosecutor to attempt to absolve the prosecution of its burden at trial of proving each element of an offense beyond a reasonable doubt. (Cortez, supra, 63 Cal.4th at p. 130; In re Winship (1970) 397 U.S. 358, 364.) It is also improper to shift the burden of proof or persuasion to the defense by asserting that the defense has an " 'obligation' " to call witnesses. (Woods, supra, 146 Cal.App.4th at p. 113.)
"To establish misconduct, a defendant need not show that the prosecutor acted in bad faith." (Cortez, supra, 63 Cal.4th at p. 130.) Instead, when the defendant challenges statements made by the prosecutor before the jury, the defendant must show " '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.]' " (Centeno, supra, 60 Cal.4th at p. 667.) "If the challenged comments, viewed in context, 'would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.' [Citation.]." (Cortez, at p. 130.) " 'In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citation.]' [Citation.]" (Centeno, at p. 667.)
3. Forfeiture
As an initial matter, the People contend that defendant forfeited certain of his claims of prosecutorial misconduct on appeal by failing to contemporaneously object in the trial court to such statements and request an admonition.
Generally, a defendant may not complain of prosecutorial misconduct on appeal unless the defendant raised a timely objection in the trial court on that ground and requested that the jury be admonished to disregard the impropriety. (Centeno, supra, 60 Cal.4th at p. 674; People v. Hill (1998) 17 Cal.4th 800, 820.) The failure to request the jury be admonished does not preclude appellate review, however, if " ' "the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request." ' [Citation.]" (People v. Seumanu (2015) 61 Cal.4th 1293, 1328-1329.) A defendant's failure to object and request an admonition also will be excused if such an objection would have been futile or the admonition would not have cured the harm. (Ibid.)
Defense counsel did not make prosecutorial misconduct objections or request admonitions to the two instances where the prosecutor asked the jury "not to over think" the case and not to "look for outside things." Counsel's failure to object to these two instances therefore precludes defendant's appellate claims of misconduct as to these two statements. (People v. Cunningham (2001) 25 Cal.4th 926, 1000; People v. Cain (1995) 10 Cal.4th 1, 48.) Even if all of defendant's claims are not forfeited, his contentions lack merit.
4. Analysis—As to the First Three Instances of Purported Misconduct
Defendant argues that the prosecutor's argument impermissibly lowered the People's burden of proof by (1) telling jurors "not to over think" the case, (2) telling jurors not to "try to look for outside things," and (3) equating the standard of proof to common sense. Defendant believes the prosecutor's statements "suggested that if the prosecution made a prima facie case, that was good enough" and "[t]here was no reason to look for reasonable doubt." We disagree.
As previously stated, in reviewing claims of misconduct during closing argument, "we must view the statements in the context of the argument as a whole. [Citation.]" (Cole, supra, 33 Cal.4th at p. 1203.) The prosecutor did not commit misconduct when he advised the jurors to use their "common sense," "not to over think things," and not "to look for outside things." The prosecutor made these comments in the midst of arguing the overwhelming evidence in this case, pointing out the "whole bunch of independent witnesses" and the video in this case, and to not believe defendant's version of events. The prosecutor's argument was similar to CALCRIM No. 226 as given in this case: "You alone, must judge the credibility or believability of the witnesses. In deciding whether testimony is true and accurate, use your common sense and experience. You must judge the testimony of each witness by the same standards, setting aside any bias or prejudice you may have. You may believe all, part, or none of any witness's testimony. Consider the testimony of each witness and decide how much of it you believe." (Italics added.)
"To tell a juror to use common sense and experience is little more than telling the juror to do what the juror cannot help but do. In approaching any issue, a juror's background, experience and reasoning must necessarily provide the backdrop for the juror's decisionmaking, whether instructed or not. CALCRIM No. 226 does not tell jurors to consider evidence outside of the record, but merely tells them that the prism through which witnesses' credibility should be evaluated is common sense and experience. . . . CALCRIM No. 226 does not instruct jurors to use their common sense and experience in finding reasonable doubt, which could potentially conflict with the beyond a reasonable doubt standard, but only in assessing a witnesses' credibility." (People v. Campos (2007) 156 Cal.App.4th 1228, 1240 (Campos).)
The prosecutor did not misstate the reasonable doubt standard, equate the reasonable doubt standard with common sense, or attempt to undermine the People's burden of proving defendant's guilt beyond a reasonable doubt. Instead, the prosecutor properly urged the jury to use common sense in determining the evidence in the case. (See, e.g., People v. Romero (2008) 44 Cal.4th 386, 416 [prosecutor's argument urging jury "to 'decide what is reasonable to believe versus unreasonable' " and to " 'accept the reasonable and reject the unreasonable' " did not lessen prosecution's burden of proof].) The prosecutor did not urge the jury to use its common sense as a substitute for evidence of defendant's guilt. "To tell a juror to use common sense and experience is little more than telling the juror to do what the juror cannot help but do." (Campos, supra, 156 Cal.App.4th at p. 1240.)
In support of his position, defendant relies on Centeno, supra, 60 Cal.4th 659. In Centeno, the defendant was convicted of two counts of multiple offenses for sexually assaulting a seven-year-old child, who gave inconsistent testimony and refused to answer many questions at trial. (Id. at pp. 662-664.) On appeal, the defendant argued the prosecutor committed prejudicial misconduct by misstating the burden of proof in closing rebuttal argument. The defendant, conceding his attorney had failed to object, raised ineffective assistance as an alternative argument. (Id. at p. 674.) The Supreme Court reversed the defendant's convictions after finding the prosecutor misstated the burden of proof in rebuttal argument and held defense counsel was prejudicially ineffective for failing to object. (Id. at pp. 669-674.)
The California Supreme Court in Centeno reviewed the prosecutor's rebuttal argument and determined the prosecutor misstated the burden of proof in two separate instances. In the first instance, the prosecutor misstated the burden of proof by using a visual display depicting the outline of the state of California and giving hypothetical testimony from hypothetical witnesses who described various cities and landmarks. (Centeno, supra, 60 Cal.4th at p. 665.) The prosecutor had argued that even though the information provided was incomplete, there was no reasonable doubt the evidence described the state of California. (Id. at pp. 665-666.) The Supreme Court held the use of the visual image misstated the burden of proof, misled the jury into believing its task was analogous to solving a picture puzzle unrelated to the evidence, and failed to accurately portray the state of the evidence presented at trial. (Id. at pp. 669-670.)
In the second instance, the prosecutor in Centeno had argued: " 'Is it reasonable to believe that a shy, scared child who can't even name the body parts made up an embarrassing, humiliating sexual abuse, came and testified to this in a room full of strangers or the defendant abused Jane Doe. That is what is reasonable, that he abused her. [¶] Is it reasonable to believe that Jane Doe is lying to set-up the defendant for no reason or is the defendant guilty?' She continued: 'Is it reasonable to believe that there is an innocent explanation for a grown man laying on a seven year old? No, that is not reasonable. Is it reasonable to believe that there is an innocent explanation for the defendant taking his penis out of his pants when he's on top of a seven-year-old child? No, that is not reasonable. Is it reasonable to believe that the defendant is being set-up in what is really a very unsophisticated conspiracy led by an officer who has never met the defendant or he['s] good for it? That is what is reasonable. He's good for it.' " (Centeno, supra, 60 Cal.4th at pp. 671-672, italics added.)
The Supreme Court concluded the italicized parts of the prosecutor's argument misstated the burden of proof because they "left the jury with the impression that so long as [the prosecutor's] interpretation of the evidence was reasonable, the People had met their burden." (Centeno, supra, 60 Cal.4th at p. 672.) The prosecutor did not simply urge the jury to accept the reasonable and reject the unreasonable in evaluation of the evidence. "Rather, [the prosecutor] confounded the concept of rejecting unreasonable inference with the standard of proof beyond a reasonable doubt. She repeatedly suggested that the jury could find defendant guilty based on a 'reasonable' account of the evidence. These remarks clearly diluted the People's burden." (Id. at p. 673, italics omitted.)
The prosecutor's arguments in this case bear no resemblance to those found in Centeno to be error. Here, in its entirety, the prosecutor told the jury: "Sometimes in these cases it's important to remember that it's good not to over think things. When you see somebody running away from the car and somebody else grabs them and throws them in the car and then drives off, what is that? That's kidnapping. [¶] When you have a whole bunch of independent witnesses who don't know the couple involved but oversee a couple fighting, punching each other, actually the defendant punching the victim in the park and grabbing her hair and slapping her when independent witnesses see all this, and when it happens between spouses, that's domestic violence. It's important not to over think these cases, ladies and gentlemen. [¶] Now, you actually saw the video in this case, a part of what happened, and you heard independent witnesses that told you about what they saw. It's important not to over think. As the judge said, my burden in this case is to prove this beyond a reasonable doubt. What does that mean? Well, the judge only tells you one thing. It means that in your mind I must prove this case. You must have an abiding conviction that the charge is true. [¶] Now, defense may get up there and they may tell you some sort of story about what that means. They may give you some sort of background, or something like that. But if you look at the jury instruction itself—and again, I remind you, that is all that you have to guide you is the instructions that the judge gave you. [¶] When you look at the jury instruction itself, it says only, that you must have an abiding conviction that the charge is true. Considering what that means, I ask you all to use your common sense. Don't try to grasp straws over here or over there. Everyone was picked for this jury because they seemed to have common sense. And I ask everyone to apply that common sense in looking at the evidence in this case."
To find prosecutorial error, we must view the challenged statements in the context of the entire argument and the jury instructions to determine whether there was a reasonable likelihood the jury understood or applied the comments in an improper or erroneous manner. (Cortez, supra, 63 Cal.4th at pp. 130-131.) "If the challenged comments, viewed in context, 'would have been taken by a juror to state or imply nothing harmful, [then] they obviously cannot be deemed objectionable.' " (Id. at p. 130.) " '[W]e "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (People v. Covarrubias (2016) 1 Cal.5th 838, 894.) When viewed in the context of the entire argument, the prosecutor's comments do not, as defendant asserts, equate the beyond a reasonable doubt burden of proof with common sense and reasonability and suggesting the jury could find defendant guilty if the prosecutor's interpretation of the evidence was reasonable.
Thus, in the context of the entire argument, this case differs from Centeno. The Supreme Court in Centeno concluded it was reasonably likely that the prosecutor's hypothetical about the state of California together with the "accompanying argument" likely misled the jury. (Centeno, supra, 60 Cal.4th at p. 674.) Here, the prosecutor did not present an objectionable hypothetical or argue a bare prima facie case was good enough to find defendant guilty or state the jury did not have to find defendant guilty beyond a reasonable doubt. In fact, the prosecutor repeatedly informed the jurors that the People's "burden in this case is to prove this [case] beyond a reasonable doubt." The prosecutor also told the jury, "The burden is on me to prove beyond a reasonable doubt. And the judge breaks [the kidnapping charge] down into four separate elements. I have to prove each and every one beyond a reasonable doubt." The prosecutor also stated "the elements of spousal battery. Same sort of thing. We have three elements in this particular one. I have to prove every single element beyond a reasonable doubt." The court had previously reminded the jury that if the prosecutor was asking them to do something other than meet the standard of proof beyond a reasonable doubt that they must follow the law as it had been explained to them. Before closing argument, the court instructed the jury that the prosecutor had the burden of proof, to ignore any contrary statements, and to follow the law as instructed by the court. Defense counsel also reminded the jury that the burden of proof was guilt beyond a reasonable doubt. Furthermore, the prosecutor never argued that the jury could use their common sense as a substitute for requiring the prosecution to meet its burden of proof. The prosecutor told the jury to use their common sense "in looking at the evidence in this case." As such, there is no reasonable likelihood the jury construed the prosecutor's remarks at issue here as improperly suggesting the People's burden of proof was less than guilt beyond a reasonable doubt.
In determining whether the prosecutor committed error, it is significant that the trial court correctly defined the reasonable doubt standard in the jury instructions. (Cortez, supra, 63 Cal.4th at p. 131.) The trial court instructed the jury: "A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt unless I specifically tell you otherwise. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] . . . Unless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty." (CALCRIM No. 220.) The court instructed the jury on direct and circumstantial evidence, and "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the defendant guilty has been proved, you must be convinced that the People have proved each fact essential to that conclusion beyond a reasonable doubt." (CALCRIM No. 224.) The court instructed the jurors that if they could draw two or more reasonable conclusions from the circumstantial evidence, they had to accept the one pointing to innocence. The court told the jurors they may use their common sense and experience in determining whether the witnesses were credible and whether their testimony was true and accurate. (See CALCRIM Nos. 224, 226, 318.)
The jury instructions left no doubt about the prosecution's burden of proof, the proper application of each juror's common sense and experience, and the role of reasonableness in reaching a verdict. To the extent the prosecutor's statements were inconsistent with the instructions, the jury was instructed to follow the latter. The trial court instructed the jury: "You must follow the law as I explain it to you, even if you disagree with it. If you believe that the attorneys' comments on the law conflict with my instructions, you must follow my instructions." (See CALCRIM No. 200.) The court told the jury that "[n]othing that the attorneys say is evidence" and "their remarks are not evidence." (See CALCRIM No. 222.)
In reaching its verdict, we presume the jury followed the court's instructions rather than any conflicting comments by counsel. (Cortez, supra, 63 Cal.4th at p. 131; People v. Prince (2007) 40 Cal.4th 1179, 1295; People v. Morales (2001) 25 Cal.4th 34, 47.) " '[J]uries generally understand that counsel's assertions are the "statements of advocates." ' " (Cortez, at p. 131.) Considered " '[i]n the context of the whole argument and the [jury] instructions,' " the jury in this case could not have understood the prosecutor's comments as diminishing the prosecution's burden of proof. (Centeno, supra, 60 Cal.4th at p. 667.) We therefore conclude the prosecutor did not commit misconduct when he asked the jury to not "over think" the case, to apply "common sense," and to not look for "outside things."
5. Analysis—Stand Against Domestic Violence
Defendant also argues that the prosecutor's argument telling jurors to take a stand against domestic violence was improper because it "encourage[d] jurors to send a public message or signal with the verdicts" and diverted the jury from their duty to find the facts and apply the law. Defendant relies on a series of federal cases that hold it is improper for a prosecutor to encourage a guilty verdict in the service of some larger social purpose not directly related to the defendant's guilt or innocence. Initially, we note state courts are not bound by decisions of the lower federal courts, even on federal questions. (People v. Cleveland (2001) 25 Cal.4th 466, 480.)
Regardless, the prosecutor did not ask the jury to send a message to the community but to send a message to defendant himself. When the prosecutor initially asserted "today we are asking you to take a stand against domestic violence," defense counsel objected. After the court admonished the jury that the jury should not decide the case "based upon public opinion or anything other than the facts," the prosecutor stated, "We are asking you to take a stand against the domestic violence in this case, ladies and gentlemen, and we are asking you to return a verdict of guilt on both Count 1 and Count 2." The prosecutor's argument in its entirety was reasonably based on the evidence and not calculated to incite the emotions of the jury. It did not place on defendant the burden of ameliorating society's woes. The prosecutor merely asked the jury to find defendant guilty if, and only if, it concluded that he was, in fact, guilty.
Additionally, any appeal the prosecutor may have made to the jury to act as the community's conscience in putting a stop to defendant's domestic violent behavior was grounded in the facts of the case. (See People v. Lucero (2000) 23 Cal.4th 692, 734 ["It was proper for the prosecutor to describe the jurors as the 'conscience of the community.' "].) Unlike the arguments at issue in the federal circuit court cases defendant relies on, the prosecutor did not appeal to broader community interests that were irrelevant to defendant's case or likely to incite or mislead the jury with respect to its role as the fact-finder. (See United States v. Sanchez (9th Cir. 2011) 659 F.3d 1252, 1256-1257 [prosecutors " 'may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking. The evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence' "; the prosecutor's " 'send a memo' " statement was improper because "the prosecutor was encouraging the jury to come to a verdict based not on [the defendant's] guilt or innocence, but on the 'potential social ramifications' of the verdict"]; United States v. Solivan (6th Cir. 1991) 937 F.2d 1146, 1153 [It is not improper per se for a prosecutor to appeal to the jury as the community's conscience, but "[a] prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking"]; United States v. Monaghan (D.C. Cir. 1984) 741 F.2d 1434, 1441-1442 [although "[a] prosecutor may not urge jurors to convict a criminal defendant in order to protect community values, preserve civil order, or deter future lawbreaking," the prosecutor's plea to condemn the defendant did not constitute misconduct because it did not mislead the jury and noted that "[e]very criminal conviction is a 'public condemnation' of the person convicted"], italics omitted; United States v. Barker (6th Cir. 1977) 553 F.2d 1013, 1025 [prosecutor committed misconduct when she told the jury that if it could not convict the defendant of bank robbery, "we might as well open all the banks and say, 'Come on and get the money, boys, because we'll never be able to convict them.' "].) The prosecutor did not suggest that the jury had a direct stake in the outcome of defendant's case. Rather, he reminded the jury of its role as the fact-finder. The prosecutor's argument cannot reasonably be construed to suggest that defendant committed violence against anyone but R.R. In light of the foregoing, this portion of the prosecutor's argument was proper.
Moreover, after the jury heard closing arguments, the trial court instructed the jury that the statements made by the attorneys are not evidence. Accordingly, it is not reasonably likely the jury construed the prosecutor's comment to take a stand against domestic violence in this case in an objectionable fashion. (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
6. Any Prosecutorial Misconduct was Harmless
Even assuming, arguendo, that the disputed comments amounted to prosecutorial misconduct, we find the error harmless. "Error with respect to prosecutorial misconduct is evaluated under Chapman v. California (1967) 386 U.S. 18, to the extent federal constitutional rights are implicated, and People v. Watson (1956) 46 Cal.2d 818 [(Watson)] if only state law issues were involved. [Citation.] Chapman is implicated if the prosecutor's conduct renders the trial so fundamentally unfair that due process is violated. [Citations.] Watson applies where the prosecutor uses ' " ' deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' [Citation.]" (People v. Fernandez (2013) 216 Cal.App.4th 540, 564.)
Here, the prosecutor's comments were so brief and fleeting that we do not believe they could have "undermine[d] the fundamental fairness of the trial and contribute[d] to a miscarriage of justice. [Citation.]" (United States v. Young (1985) 470 U.S. 1, 16, fn. omitted.) We also have no doubt that the jury's verdict was unaffected by the prosecutor's comments. Contrary to defendant's argument, the evidence of defendant's guilt was overwhelming. Four independent eyewitnesses described how defendant chased R.R. with his car and how defendant punched R.R. in the face and body. The witnesses also described how defendant grabbed R.R. by the hair and dragged her to the car and how defendant pushed R.R. in to his car and drove away. In addition, an officer testified that he had observed recent scratch marks on R.R.'s neck, and R.R. had informed police she was afraid of defendant. Moreover, the incident of defendant dragging R.R. to his car and pushing her in the car was video recorded by an eyewitness and shown to the jury. Furthermore, the jury deliberated for only one hour before finding defendant guilty of kidnapping and spousal abuse.
The evidence of defendant's guilt in this case was overwhelming. There is no reason to think that the outcome of the trial would have changed had the alleged prosecutorial misconduct not occurred. (See People v. Medina (1995) 11 Cal.4th 694, 758 ["prosecutor's [improper] statement that 'no case I have ever seen' had such overwhelming evidence" was harmless error "in light of the strong ballistic evidence linking defendant to the . . . offense"]; see People v. Sanchez (1995) 12 Cal.4th 1, 66, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 ["although the prosecutor may have, at times, pushed the limits of proper advocacy, any misconduct that did occur could not have contributed to the verdict and was thus rendered harmless"]; People v. Fields (1983) 35 Cal.3d 329, 363 [improper appeal to jury's sympathy and passion was harmless error under Watson because "evidence of defendant's guilt . . . was overwhelming" and there was "no reasonable probability [the misconduct] affected the verdict"].)
In sum, we conclude there was no prosecutorial misconduct in this case but, even if there had been, any error was necessarily harmless given the overwhelming evidence of defendant's guilt
C. Denial of Motion to Strike Prior Conviction
Defendant also claims the trial court violated his constitutional right to due process and abused its discretion in denying his motion to dismiss at least one of his prior strike convictions because both strikes arose from a single case in 1987 and they were remote in time. We disagree.
Defendant was convicted of two counts of armed robbery against two different victims in 1987. In the present case, the trial court found true that these convictions were strike convictions. Prior to sentencing, defendant filed a motion to strike one of his prior strike convictions pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero). The People opposed the motion.
At the hearing on the motion, defense counsel asked the court to exercise its discretion and dismiss one of the prior strikes because they occurred in the same criminal transaction. Defense counsel also reminded the court that in the current case the victim did not sustain physical injuries. The prosecutor argued that the two prior strike convictions were based on defendant robbing two separate victims. The prosecutor also pointed out that defendant had an extensive criminal history. The trial court denied the motion, explaining: "I remember this case—Mr. Saddler's case very well. And it's just amazing that no one was seriously injured in this case, but that doesn't mean this wasn't a serious and violent crime. [¶] And so, Mr. Saddler, in my opinion, based upon his total criminal history and based upon the facts of this case and the fact that he's now a three-striker is richly deserving in possession of a life sentence that goes along with such a conviction, coupled with his prior two strikes having been found true."
Section 1385 gives the trial court authority to order an action dismissed, "in furtherance of justice." (§ 1385, subd. (a).) Under this authority, the court may vacate a prior strike conviction for purposes of sentencing under the Three Strikes law, "subject, however, to strict compliance with the provisions of section 1385." (Romero, supra, 13 Cal.4th at p. 504.) The decision to strike a prior conviction is reviewed under an abuse of discretion standard. (People v. Carmony (2004) 33 Cal.4th 367, 374 (Carmony).)
Dismissal of a strike is a departure from the sentencing norm. As such, in reviewing a Romero decision, we will not reverse for abuse of discretion unless the defendant shows the decision was "so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at p. 377.) Reversal is justified where the trial court was unaware of its discretion to strike a prior strike or refused to do so, at least in part, for impermissible reasons. (Id. at p. 378.)
In ruling on a Romero motion, the trial court "must consider whether, in light of the nature and circumstances of his present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the scheme's spirit, in whole or in part, and hence should be treated as though he had not previously been convicted of one or more serious and/or violent felonies." (People v. Williams (1998) 17 Cal.4th 148, 161.)
Here, the trial court considered the evidence adduced at trial in the current case, arguments of counsel, the motions filed by the parties, the intent and spirit of the law, and defendant's criminality, which included the facts surrounding the priors, the remoteness of the priors and defendant's failure to lead a crime-free life. Despite the remoteness of the priors, the court declined to exercise its discretion to strike any prior strikes. The record supports the trial court's conclusion.
Defendant's criminal history dates back over 28 years. He began a life of crime in 1986 when he committed two counts of armed robbery against two separate victims. Subsequently, in 1987, defendant was convicted of burglary while armed, two counts of robbery with a gun use enhancement, and unlawful driving or taking a motor vehicle. As a result, defendant was sentenced to state prison for 80 months and paroled in April 1990. About five months later, in September 1990, he was charged with battery, petty theft with a prior, and robbery with a prior. In January 1991, he was convicted of the three offenses and sentenced to state prison for 16 months and 189 days in county jail. In October 1993, defendant committed misdemeanor vandalism and was convicted and placed on probation for a period of three years. In December 1996, defendant committed second degree burglary with priors, and in January 1998, he was convicted of that offense and sentenced to 25 years to life in state prison. Following the passage of Proposition 36, defendant was subsequently resentenced to eight years in state prison for the 1996 burglary conviction. Finally, defendant committed the instant felony offenses of kidnapping and spousal abuse in November 2014.
Defendant accumulated numerous felony convictions, albeit some have been reduced to misdemeanors pursuant to Proposition 47, and several misdemeanor convictions between 1986 and 2014. Countless prison terms, jail terms, and grants of probation and parole did not persuade defendant to change his criminal ways. His 28-year criminal record, in short, made him "the kind of revolving-door career criminal for whom the Three Strikes law was devised." (People v. Gaston (1999) 74 Cal.App.4th 310, 320 (Gaston).) The denial of his Romero motion was not an abuse of discretion. The court was aware of its discretion, properly considered the relevant facts and factors, and there is nothing on this record that removes defendant from the three strikes scheme.
Relying on the California Supreme Court's decision in People v. Vargas (2014) 59 Cal.4th 635 (Vargas), defendant contends that the trial court abused its discretion in imposing a third strike sentence because the record shows his two prior strike convictions arose from the same case and a single, continuing course of conduct. In Vargas, our Supreme Court considered "whether two prior convictions arising out of a single act against a single victim can constitute two strikes under the Three Strikes law," and concluded "they cannot." (Vargas, at p. 637.) The Vargas court stated that "[t]he typical third strike situation . . . involves a criminal offender who commits a qualifying felony after having been afforded two previous chances to reform his or her antisocial behavior, hence the law's descriptive baseball-related phrase, ' "Three Strikes and You're Out." ' [Citation.]" (Id. at p. 638.) The court noted, however, that "in a case in which an offender's two previous qualifying felony convictions were for crimes so closely connected in their commission that they were tried in the same proceeding, we held that such convictions can nevertheless constitute two separate strikes because the Three Strikes law does not require that prior convictions, to qualify as strikes, be brought and tried separately. [Citation.] Similarly, in a case in which the offender's previous two crimes could not be separately punished at the time they were adjudicated because they were committed during the same course of conduct (§ 654), we held such close factual and temporal connection did not prevent the trial court from later treating the two convictions as separate strikes when the accused reoffended." (Vargas, at p. 638.)
The Vargas court found that the case before it "present[ed] a more extreme situation: Defendant's two prior felony convictions—one for robbery and one for carjacking—were not only tried in the same proceeding and committed during the same course of criminal conduct, they were based on the same act, committed at the same time, against the same victim." (Vargas, supra, 59 Cal.App.4th at p. 638.) The Vargas court concluded that "this is one of the extraordinary cases . . . in which the nature and circumstances of defendant's prior strike convictions demonstrate the trial court was required to dismiss one of them because failure to do so would be inconsistent with the spirit of the Three Strikes law." (Id. at p. 649.)
Subsequently, Division One of this court in People v. Rusconi (2015) 236 Cal.App.4th 273, review denied, noted that Vargas applied "in the unusual circumstance presented when a defendant's single act committed against a single victim gives rise to multiple felony convictions." (Rusconi, at pp. 277-278.) Accordingly, the Rusconi court concluded that "the holding in Vargas does not extend to offenders . . . who have suffered multiple convictions growing out of a single act but who violently injure more than one victim." (Id. at p. 281.) Rusconi reasoned: "[T]he distinction between the culpability of criminals who injure one victim and the far greater culpability of criminals who injure more than one victim, and the latter's subjection to multiple punishments, was well settled long before adoption of the three strikes law in 1994. [Citation.] It is not reasonable to believe the authors of the three strikes law nonetheless intended that, under the new law, violent offenders who injure multiple victims should be treated like offenders who only injure one individual. Such a dramatic and lenient departure from the severe punishment the law had already recognized the perpetrators of multivictim violence deserve would be at direct odds with the overall purpose of the three strikes law." (Id. at pp. 280-281.)
We likewise conclude that Vargas is inapplicable here, where defendant's prior robbery convictions involved more than one victim. Moreover, defendant's prior strike convictions were not based on a single act. As the unpublished appellate opinion in his codefendant's appeal noted, three men entered a market and committed armed robbery. One of the robbers had a small pistol, pointed it at a female checker, and demanded money from the register. Another robber approached a male clerk and struck him in the head with a gun. Defendant was identified as one of the robbers. Hence, either defendant or his codefendant was the direct perpetrator as to one of the robbery victims, and either defendant or his codefendant aided and abetted the other as to the other victim. Accordingly, the holding in Vargas does not extend to defendant's case.
Defendant also argues that the trial court abused its discretion by failing to dismiss one or both of his prior strike convictions because they were remote. Courts have routinely rejected arguments where the defendant did not live a crime-free life between his or her strike prior and current crimes. (E.g., Gaston, supra, 74 Cal.App.4th at p. 321 [abuse of discretion to strike 17-year-old prior where the defendant's "continuous crime spree . . . substantially spanned his entire adult life"]; People v. Barrera (1999) 70 Cal.App.4th 541, 554-555 [refusal to dismiss 14-year-old strike justified where the defendant's criminal activity " 'continued unabated' " upon his release from prison, " 'despite . . . the drug rehabilitation efforts' " he claimed to have made]; People v. Humphrey (1997) 58 Cal.App.4th 809, 813 [reversing the dismissal of a 20-year-old prior].) "In determining whether a prior conviction is remote, the trial court should not simply consult the Gregorian calendar with blinders on." (Humphrey, at p. 813.) A remote prior may properly be stricken where the record establishes "a crime-free cleansing period of rehabilitation after a defendant has had the opportunity to reflect upon the error of his or her ways." (Ibid.) That was not the case here. Here, as in the above cases, defendant's 28-year criminal record renders the remoteness of his prior strike "not significant." (Gaston, at p. 321.)
Given defendant's criminal history, his inability to avoid criminal activity for a substantial period of time, and his violent behavior, the trial court was well within its discretion to find that defendant fell within the spirit of the Three Strikes law. Thus, we conclude the trial court did not abuse its discretion in declining to strike one or both of defendant's prior strike convictions.
IV
DISPOSITION
The judgment is modified to strike three one-year prior prison term enhancements pursuant to section 667.5, subdivision (b). The trial court is directed to forward an amended and corrected abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: MILLER
Acting P. J. FIELDS
J.