Opinion
C084563
09-18-2019
THE PEOPLE, Plaintiff and Respondent, v. TERRENCE LAMAR WILBURN, 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NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. No. 16FE018825)
A jury found defendant Terrence Lamar Wilburn guilty of assault with a deadly weapon, but did not sustain an allegation that he inflicted great bodily injury. It then sustained an allegation of a prior "serious" felony conviction in 2002. In sentencing defendant, the trial court struck the prior conviction for purposes of an otherwise mandated statutory doubling of defendant's sentence (Pen. Code, § 667, subd. (e)(1)), because it was remote and defendant had otherwise led a blameless life (§ 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497), and imposed the midterm with an enhancement of five years for the prior conviction (§ 667, subd. (a)). Defendant appealed in April 2017.
Undesignated statutory references are to the Penal Code.
Defendant completed his initial round of briefing in February 2019. He then sought supplemental briefing, which was completed in June 2019.
Defendant's original briefing challenged only the exclusion of the testimony of a defense witness. His supplemental briefing sought a remand in order to benefit from legislation that came into effect during the lengthy pendency of his appeal, under which a trial court now has discretion to strike the five-year enhancement; he also belatedly raised two claims of ineffective assistance of counsel that were apparent on the record at the time he filed his original briefing. We shall affirm the conviction but remand for resentencing.
This haphazard "oh, by the way" style of appellate briefing does not lend itself to the timely resolution of a defendant's claim of error underlying a conviction.
FACTUAL AND PROCEDURAL BACKGROUND
The assault took place in Chavez Plaza in downtown Sacramento on September 27, 2016. There were two witnesses to the assault, one who is a city project manager and the other who is a deputy district attorney.
The project manager was walking north on 9th Street on the sidewalk adjacent to the park, perusing his cellphone. He heard yelling, and looked up from his phone. He saw two men, defendant and the victim, about 45 feet in front of him. He was not sure whether both were yelling or just defendant. Defendant was facing the project manager and the victim was sitting on a bicycle facing or sideways toward defendant. A few seconds later, the project manager saw defendant hit the victim in the head with a baseball bat. He did not see the victim lunge at the defendant before defendant attacked him. He did not see the victim with any sort of weapon. There was an audible "crack" as the bat hit the victim's head. The project manager could see that the victim was visibly wounded as a result. The victim fell off his bicycle and sat on the grass, where bystanders attended to him. Defendant wandered into the park, still yelling. The project manager called for assistance on his phone. Defendant remained in the park until the police arrived.
The deputy district attorney was across the street from the park, walking south. He heard yelling. Looking across the street, he saw defendant yelling, and then hit the victim—who was facing away from defendant—with a bat. The deputy district attorney did not recall seeing a bicycle. He particularly focused on whether the victim had any sort of weapon, and did not see one. He did not see the victim make any sort of advance at defendant. The victim collapsed on the ground, with defendant still swinging the bat at him and continuing to yell. Defendant then rolled a cart into the park, still agitated. The deputy district attorney crossed the street and stood next to a person who appeared to be phoning for assistance. Both waited for the police to arrive.
The victim also called for assistance in his own behalf. In his call, he said that he had been talking to someone and defendant came over and hit him on the head with a bat. Defendant was still present and still yelling. The victim's head injury required both stitches and surgical staples to seal. The responding officer tending to the victim did not find any weapons on his person. She did not search the area for any weapons other than the baseball bat.
The victim did not testify. His absence from trial is not explained.
Defendant testified in his own behalf. He had been sleeping in the G Street alley on the morning of the assault. After spending time in the county law library at 9th and F Streets, he was heading to a convenience store on K Street. Around 9th and G Streets, he made eye contact with the victim. Defendant continued down 9th Street and the victim rode off on his bicycle down G Street. When defendant approached the crosswalk at 9th and I Streets, he again saw the victim across the street, standing next to his bicycle. Robotically, defendant kept repeating in his testimony that "I believe I saw a taser in his hand." (During cross-examination, he repeated this litany 11 times without any elaboration when the prosecutor attempted to ascertain the facts that led him to this belief, before stating on redirect that the taser was somewhere on the left side of the victim near his hand, where a jacket partially obscured defendant's view.) Defendant nonetheless crossed the street toward the victim and pulled out his bat. The victim turned away to flee. Defendant then hit the victim with the bat because he believed the victim was going to tase him. He went and sat in the park because he wanted to wait for the police to find the taser. He admitted that he was angry at the victim because of their continuing confrontations and because the victim had told people defendant was a child molester, which led to attacks on defendant.
Defendant testified that the victim had tried to sell him a taser in a light blue holder around Easter 2016. (Although the parties were apparently unable to ascertain that date in court, it was March 27.) On September 16, shortly before the assault, defendant had had another confrontation with the victim, during which the victim departed and then returned with the light blue taser holder (although defendant did not see the actual taser). Defendant told him that if the victim tased him, he would report it to the police. The victim responded that he would spread the word that defendant was a "cop caller," a term apparently of opprobrium in the homeless community. In an abundance of caution, defendant left the scene and went to the apartment of a former girlfriend for safety. He reported the incident to the police, although he did not have any record of the contact. Defendant also asserted that the victim had assaulted him on September 24 as defendant was walking down I Street.
Defendant claimed the bad blood between them arose out of a claim by the victim at Easter 2016 that defendant owed him money, at which time the victim tried to hit him with a bicycle lock. The two were also rivals for the attentions of a woman.
DISCUSSION
1.0 The Exclusion of Defense-proffered Testimony was Harmless
Before trial, the prosecution moved in limine to exclude the testimony of a defense witness, the former paramour of defendant (to whose home he went after the September 16 incident), as being primarily hearsay and also irrelevant. Appended to the motion was a summary of a conversation that a defense investigator had with the witness. She attested to the ongoing friction between defendant and the victim (as well as others), without indicating that she had firsthand knowledge of most of these facts. However, she had said that in August 2016, she was waiting in the distance by her apartment when the victim returned on his bicycle with a taser (after defendant struck him) and tried to tase defendant, who fled toward the former girlfriend (who escorted him into the apartment). Defendant was living with her until three days before the assault.
After a discussion in chambers, the court indicated on the record that the former girlfriend would be allowed to testify about matters as to which she was a percipient witness. After defendant testified, counsel announced his intention to call the former girlfriend as a witness. Counsel represented that she would testify that she saw a taser on September 16. Counsel then acknowledged that she would say only that she saw a "shiny implement" in the victim's hand that she assumed was a taser because of the manner in which defendant reacted. The court expressed its doubt about the relevance, since neither defendant nor the proposed witness could actually say the victim had a taser on September 16 (as opposed to a taser holder or a shiny object). It concluded that the testimony would simply be speculation as to the nature of the object that the victim was holding, and therefore it would not allow the testimony. Defendant contends the trial court abused its discretion in excluding this evidence, which constituted reversible error.
The testimony of the proposed witness is relevant only on one point: to corroborate defendant's claim that the victim was wielding some type of item on September 16 in their confrontation. It manifestly does not corroborate defendant's testimony that the victim had a taser holder in hand, let alone a taser. As such, the proposed speculative testimony did not have any relevance whatsoever as to whether the victim was wielding a taser on September 27, as defendant claimed, that could have justified defendant's preemptive attack. Accordingly, we cannot conclude that the trial court abused its discretion in excluding this proposed testimony. (People v. Chism (2014) 58 Cal.4th 1266, 1291 [standard of review]; People v. Rundle (2008) 43 Cal.4th 76, 130, fn. 23 [exclusion of speculative testimony not an abuse of discretion].) In any event, we cannot conclude that this proposed testimony would have had any effect on the outcome of the trial such that its exclusion was prejudicial. We therefore reject this argument.
2.0 Trial Counsel Was Not Ineffective
2.1 Purported Prosecutorial Misconduct
In the course of closing argument on the issue of self-defense and the absence of any reasonable fear of imminent harm to defendant, after discussing the complete lack of corroboration of defendant's account the prosecutor remarked, "in this case we don't have any lunging, we don't have any weapon, we don't have . . . any aggressive movements of any kind. There is no imminent danger here. The defendant was not in imminent danger."
Conceding, as he must, that there were witnesses who supported this view of the facts—in contrast with defendant's testimony—defendant still asserts trial counsel was ineffective for failing to object to this argument as a "mischaracterization" of evidence. We reject this argument out of hand.
A prosecutor has "wide latitude" in discussing the evidence at trial and inferences to be drawn from it, and may even term contrary evidence as a lie, a step the present prosecutor did not expressly take; whether such characterization of the evidence is accurate is for the jury to determine. (People v. Dennis (1998) 17 Cal.4th 468, 522.) As the remark was clearly within the prosecutor's power to characterize the evidence, it did not fall below prevailing professional norms for trial counsel not to object to it. (People v. Lopez (2008) 42 Cal.4th 960, 966 [in any event, failure to object rarely establishes ineffective assistance on direct appeal]; People v. Ledesma (1987) 43 Cal.3d 171, 215.) Trial counsel is not obligated to raise meritless objections to forestall an appellate claim of ineffective assistance of counsel. (People v. Anderson (2001) 25 Cal.4th 543, 587; People v. Riel (2000) 22 Cal.4th 1153, 1202 ["no duty to object simply to generate appellate issues"]). We therefore reject the argument.
2.2 Failure to Request Pinpoint Instruction
Defendant contends trial counsel was ineffective for failing to request the trial court to include an optional "pinpoint" portion of the pattern instruction on self-defense that provides, "Someone who has been threatened or harmed by a person in the past is justified in acting more quickly or taking greater self-defense measures against that person." (See CALCRIM No. 3470.) For purposes of direct appeal, we do not find that trial counsel fell below prevailing professional norms, because we may posit a plausible tactical basis for failing to request this portion of the instruction. (People v. Pope (1979) 23 Cal.3d 412, 425.)
People v. Garvin (2003) 110 Cal.App.4th 484, 489 (Garvin). --------
The evidence showed defendant approached the victim, from across the street, rather than simply avoid him if he truly feared him. No witness or evidence corroborated defendant's claim that the victim "lunged" at him, or had a taser on his person. Defense counsel's theory was simply that defendant responded reasonably to aggression from the victim, not that he had a hair-trigger response time as a result of their past encounters. As the People point out, emphasis on the past encounters would not necessarily corroborate defendant's claim that the victim was armed, and could in fact ricochet into leading the jury to believe defendant was the aggressor because he had enmity toward the victim. (Garvin, supra, 110 Cal.App.4th at p. 490.) Under these circumstances, reasonable counsel could conclude that the optional language was not to defendant's advantage. We therefore reject the argument.
3.0 Remand for Resentencing
Effective January 1, 2019, the trial court now has discretion under section 1385 to strike a five-year enhancement imposed pursuant to section 667, subdivision (a) as the result of amendments to both statutes. (See Stats. 2018, ch. 1013, §§ 1, 2.) This court has previously held that these amendments are retroactive and therefore apply to cases pending on appeal—a proposition the People concede—and therefore a remand for resentencing is required unless the record clearly indicates that the trial court would not in any event exercise this new discretion in defendant's favor. (People v. Franks (2019) 35 Cal.App.5th 883, 892-893; People v. Jones (2019) 32 Cal.App.5th 267, 272-273.) Both parties agree that on the present record, where the trial court imposed a middle term and declined to double it based on its belief of the presence of mitigating factors, we cannot find that a remand would be futile. We agree. We will accordingly vacate the present sentence and remand for its reconsideration.
DISPOSITION
The convictions are affirmed. The sentence is vacated and the matter remanded for the trial court to exercise its discretion whether to strike the recidivist enhancement. After resentencing, the trial court shall prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
/s/_________
Butz, J. We concur: /s/_________
Robie, Acting P.J. /s/_________
Hoch, J.