Opinion
C082646
06-26-2018
THE PEOPLE, Plaintiff and Respondent, v. TIMOTHY JAMES SMITH, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. STK-CR-FE-2015-0006306, SF131365A)
In March 2015, defendant Timothy James Smith shot and killed Joshua Harrison. The People theorized defendant shot Harrison's girlfriend, Konrada Navarro, and then shot and killed Harrison. Defendant's theory was self-defense. He claimed Harrison shot and attacked Navarro during an argument and then attempted to kill him when he came to Navarro's defense. According to defendant, he shot and killed Harrison after Harrison shot at him. Despite being shot in the face, Navarro survived.
A jury found defendant guilty of first degree murder (Pen. Code, § 187; statutory section references that follow are to the Penal Code unless otherwise stated), attempted murder (§§ 664/187), and mayhem (§ 203). The jury also found true multiple firearm enhancement allegations (§§ 12022.5, subd. (a), 12022.53, subd. (d)), and defendant personally inflicted great bodily injury (§ 12022.7, subd. (a)). In a bifurcated proceeding, the trial court found true the allegations defendant had a prior conviction within the meaning of the three strikes law (§§ 1170.12, subd. (b); 667, subd. (a)) and a prior serious felony conviction (§ 667, subd. (b)). The trial court sentenced him to an aggregate term of 121 years to life in prison.
On appeal, defendant contends the trial court prejudicially erred in excluding evidence. He claims the trial court's exclusion of testimony from witnesses who would have testified to Harrison's motive to harm or kill Navarro was reversible error. Defendant further contends that, in light of the recent amendments to sections 12022.5 and 12022.53, this matter must be remanded to permit the trial court to consider whether it should exercise its discretion to strike the firearm enhancements imposed under these provisions. We affirm the judgment of conviction. However, we will remand the matter for the purpose of allowing the trial court to exercise its discretion whether to strike or dismiss any of the firearm enhancements imposed under sections 12022.5 and 12022.53.
FACTS AND PROCEEDINGS
In March 2015, Navarro was Harrison's girlfriend. According to Navarro, she and Harrison really loved each other and were so close they told people they were married. Navarro, however, admitted they argued about everything and had a tumultuous relationship. She said they would sometimes hit each other when they argued. Navarro also admitted she frequently threatened to call the cops on Harrison to "piss him off," and she threatened to call his parole officer to get him in trouble.
On March 8, 2015, Navarro met defendant for the first time when he picked her up from her parents' house in Sacramento. Harrison, who was with defendant, introduced defendant as Timothy or Tim. Defendant drove Navarro and Harrison to the Stevens Motel. However, before doing so, he stopped at a house in Lodi, picked up "quite a few" guns, and then dropped off some of the guns at an apartment complex in Lodi or Stockton.
While they were at the Stevens Motel, Navarro, Harrison, and defendant used methamphetamine. Around 9:00 or 10:00 p.m., defendant and Harrison left the motel after Navarro and Harrison got into an argument during which Navarro swore at Harrison and threw "shit" at him. Navarro subsequently called defendant and told him she would call the cops if he or Harrison came back to the room, which "pissed" defendant off.
Later that night, defendant came back to the room alone to retrieve a pair of shoes. When he did so, Harrison was on the phone with Navarro. Harrison started "tripping" and "flipped out." He told Navarro not to open the door for defendant. Navarro yelled and "bitch[ed]" at defendant but allowed him to retrieve his shoes.
When Harrison arrived at the room 15 minutes later, defendant was gone. Harrison, however, kicked in the door because he thought defendant was trying to hurt Navarro. The people staying next door called the police. When the officers arrived, Harrison was gone. Navarro was allowed to stay at the motel after she explained to the officers what had happened and promised the manager she would fix the door. Navarro told the officers that Harrison was paranoid and thought someone was trying to kill her.
After the officers left, Harrison returned to the room. He started pacing back and forth. When Navarro told him he needed to stop using drugs, he replied, "No, no, they really are going to try to kill us." Harrison placed a chair and desk against the door and stayed up all night looking out the window. According to Navarro, Harrison had a revolver and was "really tripping" and paranoid about defendant. When Navarro asked Harrison why defendant would want to hurt her, he said, "Because you keep saying you're going to call the cops. People don't like that shit."
The next morning, Navarro and Harrison got into an argument because Harrison would not allow her to go to court for her felony case in Lodi. He told Navarro that it was unsafe for her to do so. During the argument, Navarro threw "stuff" at Harrison and he got mad.
After Navarro and Harrison used methamphetamine, they walked to an apartment complex called the "crab shack." They arrived around 12:30 p.m. and stayed there all day trying to get a ride to Sacramento. While they were at the crab shack, they used more methamphetamine and argued again. According to Navarro, the arguing was not unusual; it was "an everyday thing."
At some point on March 9, 2015, Navarro saw defendant and Harrison "with a bunch of handguns." She saw Harrison holding a small gun and a big gun. However, she did not see Harrison with more than one gun that night. At trial, Harrison's estranged wife testified that she saw Harrison with two handguns a couple of days before he was shot; one was a revolver and the other was an automatic pistol.
Around 9:00 p.m., Navarro and Harrison were dropped off at a motel in downtown Lodi. While they were at the motel, they argued again. Around 10:00 p.m., defendant picked up Navarro and Harrison and drove them to the Wal-Mart in Lodi. Navarro stole various items, including a couple pairs of gloves that Harrison and defendant wanted.
As they were leaving Wal-Mart, Navarro noticed that Harrison's face was "so white." Harrison repeatedly said he wanted to get away from defendant because defendant was "acting funny."
After stopping at a nearby McDonald's, defendant drove around for about two hours on country roads. During the drive, Navarro and Harrison argued. At one point, defendant indicated to Harrison that he was going to shoot him or Navarro. He asked Harrison, "[Y]ou or her?" Harrison responded, "Me." Thereafter, defendant pulled over on the side of a frontage road near Highway 99. Harrison then told Navarro to "[get] the fuck out of the car." Before doing so, Navarro dialed 911 and put her phone in her pocket because she felt like "something was going to happen." Navarro was unsure whether defendant saw her take a picture of his license plate. However, after she took the picture, defendant said, "What the fuck [are] you doing, Bitch?"
Once outside the car, Navarro walked behind the car and took a picture of the license plate She then walked a short distance from the car, turned around, and headed back toward the car. At that moment, defendant got out of the car, approached Navarro, and fired two shots at her head. The first bullet went through Navarro's arm, which she had raised up to block the light from the car's headlights. The second bullet hit Navarro in the face; it entered underneath her chin and exited near her eye. Navarro lost consciousness.
The next thing Navarro remembered was someone kicking her in the back of the head and banging her head into the ground. Navarro screamed and begged the person who was attacking her to stop. Although she did not see who was attacking her and never saw Harrison get out of the car, she thought Harrison was the person attacking her because the voice telling her to "[s]hut the fuck up" sounded like his voice. She said, "Josh, stop. I love you. Josh, stop, stop. I love you. Stop. Don't do this."
After she was shot, Navarro called 911. The entire 911 call was played for the jury. During the call, Navarro told the 911 operator she had been shot in the head and identified the shooter as the guy who "dropped [her] off." At trial, Navarro testified she was referring to defendant. The 911 call was made on March 10, 2015, at 12:30 a.m. and ended at 12:33 a.m. At the conclusion of the 911 call, Navarro screamed. Navarro explained she screamed because that was the moment when either Harrison or defendant started "stomping" her.
Shortly after Navarro was shot, Harrison was shot twice; one bullet struck his left arm and the other struck the left side of his face near his ear. The bullet that struck Harrison's face hit his brain stem, causing immediate unconsciousness and death within a few minutes. Navarro did not see or hear Harrison get shot.
After hearing two gunshots and a louder third gunshot, a woman living nearby called 911. Officers from the San Joaquin County Sheriff's Department arrived at the scene at 12:38 a.m. They found Harrison lying face up with a lot of blood on his left side. He had a small bag of methamphetamine in his right hand. He did not have any injuries on his hands but had minor blunt force injuries to his face, left lateral torso, and knees. A bullet casing was found underneath his body. It was a rimless casing, likely from a semiautomatic firearm.
When the paramedics arrived, they performed basic lifesaving support on Harrison but were unsuccessful. He was declared dead at the scene. As the paramedics were preparing to leave, they were informed that there was a second victim. They drove their ambulance about 100 to 150 yards to Navarro's location. Navarro was placed in the ambulance and taken to San Joaquin County General Hospital. She was subsequently transferred to UC Davis Medical Center.
Before Navarro was placed in the ambulance, she told a police officer her boyfriend and "her friend" shot her in the head. During the ambulance ride, Navarro told another officer Harrison and his "friend" shot her in the head. She also said Harrison kicked her in the head, Harrison's friend shot him, and she had a picture of "a suspect" and the license plate of the suspect's vehicle in her phone.
When asked at trial why she thought Harrison shot her, Navarro testified a man she had never met named Larry King (aka Mousey) repeatedly told Harrison he was going to kill her and Harrison. According to Navarro, Mousey told Harrison he was going to kill Harrison if Harrison did not bring Navarro to him. Navarro further explained, after the shooting she initially thought defendant was Mousey and Harrison tried to help Mousey kill her because Mousey and Harrison believed she was going to "snitch" on them for stealing a van. Navarro also said Mousey supposedly wanted to kill her because she broke a mirror inside the van during a fight with Harrison. According to Navarro, Harrison "freaked out" and said Mousey would kill both of them when he found out she called Mousey about the van. At trial, Navarro testified defendant was the person she initially thought was Mousey, and defendant, not Mousey, was with her and Harrison on the night of the shooting. She also admitted she threatened to call the cops numerous times throughout the day and evening before she was shot.
The police were unable to locate Navarro's cell phone. However, they found a glove containing DNA from both Harrison and defendant. They also found a .357 revolver 400 feet away from where Navarro was found. Harrison's body was an additional 150 feet away from Navarro. There were six "expent" casings inside the revolver, i.e., all the bullets had been fired.
A senior criminalist from the Department of Justice analyzed the two bullets retrieved from Harrison's body as well as a third bullet found in Navarro's sweatshirt. He determined all three bullets were .40-caliber bullets. He opined that all the bullets were fired from the same .40-caliber handgun, which was likely a semiautomatic handgun.
After the shooting, detectives interviewed Navarro three times. The interviews were recorded or videotaped and played for the jury. In the first interview, Navarro initially identified "Timmy" as the shooter and indicated he drove on the night of the shooting and was mad at her and Harrison because they were fighting. However, when she was shown a picture of Mousey, she indicated he was the shooter. After clarifying that Timmy and Mousey were the same person, she indicated both Mousey and Harrison shot her, Harrison kicked her in the head, and Mousey shot Harrison. However, she later indicated she did not see Mousey shoot Harrison. She surmised she was shot because Mousey and Harrison found out she was going to "snitch" on them. She noted she was shot in the location where she was found. At trial, one of the detectives who conducted the first interview with Navarro testified it was unclear whether Mousey was the person who shot Navarro because Navarro was in and out of consciousness during the interview.
In the subsequently conducted interview, Navarro identified defendant from a photographic lineup as the person who shot her. She said defendant was the person she referred to as Mousey in the first interview and defendant and Mousey are different people. She also said only defendant and Harrison were present when she was shot, and defendant was the person who shot her. When asked why she was shot, she said people thought she was a snitch because she was always threatening to call the cops. Navarro told the detectives they should check the video footage from the cameras at Wal-Mart if they wanted to know who shot her.
When interviewed by the police, defendant initially denied he knew Navarro or Harrison. He also denied he was involved in the shooting. He claimed, at the time of the shooting he was on a "run" with his brother, a long haul truck driver. He also claimed he never possessed or shot a handgun before. When he was confronted with a video recording of him with Navarro and Harrison at Wal-Mart on the night of the shooting, he admitted he met Harrison one time in the past and was with Harrison and Navarro at the Wal-Mart. A redacted version of the recording of the interview was played for the jury. At trial, defendant admitted he lied to the police during the interview. He said he changed his story after the police told him there was a video of him with Navarro and Harrison on the night of the shooting.
Defendant testified as follows: He did not know Harrison very well and met Navarro the day before the shooting. He gave Navarro and Harrison a ride to the Stevens Motel and saw Harrison with a couple of handguns. On the night of the shooting, Harrison and Navarro argued in his car. The argument was about a stolen van and Navarro "ratting" on Harrison and Mousey. Defendant said Harrison called Navarro a "rat bitch" and she slapped him in the face. Harrison then "tried to get [Navarro]" but defendant stopped him. At Harrison's direction, defendant stopped his car. Harrison and Navarro got out and continued to argue. Defendant described the argument as intense; Navarro was screaming and Harrison was yelling.
After hearing two gunshots, defendant got out of the car to see what was happening. He saw Harrison stomping on Navarro about 10 feet from the car and heard Navarro yell, "Josh, you're killing me." At that moment, he "rushed" Harrison and "torpedoed" him, causing both of them to fall to the ground. A physical fight ensued. Harrison and defendant exchanged blows to the head. During the fight, defendant was able to wrestle Harrison's gun away from him. He then took cover behind his car, while Harrison fired another gun at him, hitting him once on the thumb of his right hand.
Defendant claimed that he fired two to five bullets at Harrison in self-defense. When he "didn't hear nothing else," he shot two more times in Harrison's direction to scare him off, and fled in his car. According to defendant, he could not see Harrison and did not know whether any of the bullets struck Harrison. During the exchange of gunfire, he claimed he was located behind his car on the driver's side while Harrison was in front of his car on the right side.
After leaving the scene, defendant tossed his gun into a dumpster. He did not report the incident to the police or seek medical attention because he was scared he would be blamed for what happened.
At trial, a doctor testified that the wound on defendant's thumb was consistent with a "graze" gunshot wound. Defendant's father testified that defendant had an injury to his thumb and knots on the back of his head when he came home on the night of the shooting. Defendant's father also said defendant's car had a "U" shaped crease on one of the doors caused by a bullet.
DISCUSSION
I
The Exclusion of Evidence
Defendant contends the trial court prejudicially erred in excluding evidence. He claims the trial court's exclusion of testimony from witnesses who would have testified to Harrison's motive to harm or kill Navarro was reversible error.
Prior to trial, defendant filed a motion requesting permission to elicit testimony from six witnesses to show Harrison had a motive to harm or kill Navarro. According to defendant, this evidence was relevant to his claim of self-defense.
In support of his motion, defendant summarized the testimony he intended to elicit from the witnesses. If called to testify, the witnesses would say, among other things, Harrison and Navarro argued a lot and were always fighting, Navarro was crazy, Harrison dumped Navarro, Navarro gave Harrison a black eye and tried to stab him, Navarro beat Harrison up and stole from him, Navarro said she hated Harrison and did not want to be around him, Harrison abused Navarro physically, sexually, and mentally, Navarro frequently threatened Harrison, including threatening to call his probation officer and the police, and Navarro recently threatened to call the police and tell them how Harrison conducted a robbery. In addition, defendant sought to elicit testimony Harrison put a gun to Navarro's head and threatened her, Harrison said he believed certain people were going to kill him because he and Navarro had stolen their van and Navarro had demanded money from them, Harrison had made statements to the effect of, "This bitch is ruining my life. I need to get away from her," Harrison said Navarro was "going to be the one that gets [him] killed," Harrison told Navarro he was going to "get [her] a ride away from [him]," and, when Navarro threatened to call the police on someone associated with Harrison, Harrison said, "he either had to get rid of Navarro or it would be on him."
At the hearing on the motion, the trial court ruled most of the evidence defendant sought to introduce was inadmissible hearsay, improper character evidence, and/or inadmissible under Evidence Code section 352. In so ruling, the court reasoned Navarro's state of mind and character were not at issue, and additional evidence regarding Harrison's relationship with Navarro would be cumulative given that Navarro would testify about her relationship with Harrison, including that she did not get along with him and he was physically abusive and difficult. The court said defense counsel would be allowed to thoroughly question Navarro about her relationship with Harrison, and some evidence of Navarro's violent character may be admissible to explain the type of relationship she had with Harrison. The court stated it was undisputed Harrison and Navarro had a bad relationship, and it was unnecessary for multiple witnesses to provide testimony to this effect. The court left an opening to defendant and said if Navarro denied threatening Harrison, threatening to call the police or his parole officer, or doing anything to him, defendant could call witnesses to rebut such testimony.
We need not decide whether evidence was improperly excluded because any error was harmless. Defendant contends the trial court's exclusion of evidence deprived him of his constitutional right to a fair trial. He therefore argues the federal constitutional standard of prejudice under Chapman v. California (1967) 386 U.S. 18 applies. We disagree. Application of ordinary rules of evidence does not implicate any of defendant's rights under the federal Constitution, and thus we review his allegations of error under the reasonable probability standard set forth in People v. Watson (1956) 46 Cal.2d 818. (People v. Harris (2005) 37 Cal.4th 310, 336.)
On this record, we conclude it is not reasonably probable defendant would have received a more favorable outcome had the trial court admitted the testimony he sought to elicit regarding Harrison's motive to harm or kill Navarro. There was ample evidence presented at trial showing Harrison had a motive to harm or kill Navarro. The excluded evidence relevant to Harrison's motive was cumulative and similar in kind to the evidence presented at trial. The record reflects Navarro was questioned about her relationship with Harrison. During her testimony, Navarro admitted she and Harrison had a tumultuous relationship. She said they argued on a daily basis and sometimes hit each other. Navarro admitted she threatened to call Harrison's parole officer to get him in trouble, and frequently threatened to call the police on him to "piss him off." There was evidence Navarro and Harrison argued multiple times during the two days leading up to the shooting, Navarro threatened to call law enforcement officers numerous times throughout the day and evening prior to the shooting, and Navarro and Harrison had an intense argument about a stolen van and Navarro "snitch[ing]" on Harrison and Mousey shortly before Navarro was shot.
There was also evidence Mousey wanted to kill Navarro, and Mousey told Harrison he would kill Harrison if Harrison did not bring Navarro to him. In addition, there was evidence that while Navarro only saw defendant shoot her, Navarro thought Harrison also shot her because she had threatened to snitch on him and Mousey for stealing the van. Under the circumstances, we are convinced any evidentiary error was harmless, particularly in light of the other evidence presented at trial implicating defendant in the murder of Harrison and the attempted murder of Navarro.
II
The Firearm Enhancement
In a supplemental brief, defendant contends that, under the recent amendments to sections 12022.5 and 12022.53, this matter must be remanded to the trial court so it may consider whether to strike the firearm enhancements imposed in this case. The People agree that defendant is entitled to the benefit of the recent changes to the law because the amendments provide discretion to impose a lesser sentence, and because there is nothing in the amendments to suggest the Legislature intended them to apply prospectively only. However, the People argue that remand is not appropriate because any order striking the enhancements would constitute an abuse of the trial court's discretion.
On October 11, 2017, the Governor signed into law Senate Bill No. 620 (2017-2018 Reg. Sess.) (hereafter Senate Bill 620), which amended sections 12022.5, subdivision (c) and 12022.53, subdivision (h), effective January 1, 2018 (Stats. 2017, ch. 682, §§ 1-2, respectively). Prior to the enactment of Senate Bill 620, and at the time defendant was sentenced by the trial court, these provisions required mandatory imposition of sentencing enhancements in certain enumerated situations. As amended, these provisions now state: "The court may, in the interest of justice pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement otherwise required to be imposed by this section. The authority provided by this subdivision applies to any resentencing that may occur pursuant to any other law." (§§ 12022.5, subd. (c) & 12022.53, subd. (h).)
For the reasons stated by this court in People v. Woods (2018) 19 Cal.App.5th 1080, 1090-1091, we conclude that the recent amendments to sections 12022.5 and 12022.53 are retroactive and apply to this case. However, we are not persuaded by the People's contention that, given the egregious facts of this case, remand to the trial court would constitute an idle act because any order striking the firearm enhancements would constitute an abuse of discretion. In making this argument, the People refer to the fact that a trial court's discretion to strike prior felony conviction allegations under section 1385 is limited by the concept that the dismissal must be "in furtherance of justice," which " ' "requires consideration both of the constitutional rights of the defendant, and the interests of society represented by the People, in determining whether there should be a dismissal. [Citations.]" [Citations.] At the very least, the reason for dismissal must be "that which would motivate a reasonable judge." ' " (People v. Superior Court (Romero) (1996) 13 Cal.4th 497, 530-531.) The People, however, do not develop any argument regarding the limits of the trial court's discretion under Senate Bill 620. The case relied on by the People does not involve Senate Bill 620 and does not convince us that remand is not appropriate.
While the trial court imposed the maximum possible sentence and referred to the crimes as the "most serious charges . . . under the law," the record is silent as to the trial court's thoughts regarding the firearm enhancements. The record does not clearly indicate that remand would be futile because the trial court would not have exercised its discretion to strike any of the firearm enhancements had it known it had such discretion. (See People v. Gutierrez (1996) 48 Cal.App.4th 1894, 1896 [remand not required where trial court's comments at sentencing and sentence itself show that "no purpose" would be served by a remand].) The amendments effected by Senate Bill 620 give the trial court discretion to strike, among others, enhancements under section 12022.53, subdivision (d), which involve the discharge of a firearm resulting in death or great bodily injury. Thus, the Legislature has determined that it might be appropriate to strike a firearm enhancement even in serious cases. We express no opinion as to how the trial court should exercise its newly granted discretion on remand. We only conclude that, under the circumstances of this case, the trial court should be provided the opportunity to exercise its discretion in the first instance. (See People v. Brown (2007) 147 Cal.App.4th 1213, 1228 [noting that it is generally appropriate to remand for resentencing when a court proceeded through sentencing erroneously believing it lacked discretion to act in a certain way].)
DISPOSITION
The judgment of conviction is affirmed. The matter is remanded to the trial court to exercise its discretion whether to strike any of the firearm enhancements imposed under sections 12022.5 and 12022.53, and, if appropriate, to resentence defendant.
HULL, J. We concur: RAYE, P. J. MAURO, J.