Opinion
E070123
04-06-2020
THE PEOPLE, Plaintiff and Respondent, v. JAMES ONEAL BELVINS, Defendant and Appellant.
Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Gerald A. Engler, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel, A. Natasha Cortina, and Amanda E. Casillas, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. FWV17003993) OPINION APPEAL from the Superior Court of San Bernardino County. Ingrid Adamson Uhler, Judge. Affirmed with directions. Edward Mahler, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters and Gerald A. Engler, Chief Assistant Attorneys General, Julie L. Garland, Assistant Attorney General, and Melissa Mandel, A. Natasha Cortina, and Amanda E. Casillas, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Defendant and appellant, James Oneal Belvins, was charged by information with one count of second degree robbery, tried by a jury, and convicted. (Pen. Code, § 211.) In a bifurcated court trial following the conviction, the trial court found true the allegation that defendant had a prior prison offense. (§ 667.5, subd. (b).) Defendant was sentenced to four years in state prison and appealed.
All further statutory references are to the Penal Code unless otherwise indicated.
On appeal, defendant argues that the prosecutor engaged in prejudicial prosecutorial misconduct by asking a series of questions designed to imply the existence of facts which the prosecutor did not intend to prove true. We affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
On October 20, 2017, defendant entered a Target store in South Fontana, where he tried but failed to steal an iPhone. Loss prevention employees at this Target sent a photo of defendant and their suspicion regarding his attempted theft to the loss prevention employees of nearby Target locations, including Marc T.
On October 21, 2017, defendant entered a different Target located in Fontana that sold smartphones with the intention of stealing a phone. Sometime thereafter, a loss prevention employee for the store, Marc T., was alerted that someone was acting suspiciously near the display case for the phones. Marc T. went to the electronics section and observed a person who he later identified as defendant acting suspiciously. Marc T. observed defendant for an hour to an hour and a half and saw defendant try to remove the phone from its anti-theft display a number of different ways.
Defendant was eventually successful in removing the phone. Marc T. then told his fellow loss prevention coworkers via cell phone to go outside the exit of the store in case defendant attempted to leave the store with the phone. After freeing the phone from its display, defendant proceeded directly to the store exit, bypassing the registers and not attempting to pay for the phone. The exit to the store had double doors with a vestibule between the interior and exterior set of doors. Defendant proceeded through the interior doors into the vestibule, at which point Marc T. instructed the other two loss prevention personnel to confront him.
The other two loss prevention personnel approached defendant and announced they were security personnel. They were wearing clothing identifying them as security. Marc T. approached from behind defendant at the same time, and also verbally identified himself as a member of the store's security team.
After Marc T. identified himself, defendant turned to look at him before attempting to run past the other two security personnel. Marc T. grabbed defendant's shirt from behind. Both Marc T. and defendant, along with the other security personnel, ended up outside the store. Defendant struggled against Marc T. by throwing his elbows back, though he did not actually hit Marc T. The other two security personnel grabbed defendant. All three security personnel repeatedly told defendant they were security and instructed him to stop resisting. Defendant continued to struggle with the security personnel by pushing them and swinging his arms. This included swinging his arms with closed fists, though defendant apparently never made contact with the personnel.
At some point all four people involved fell over a large red decorative ball placed outside the store. One of the security personnel suffered cuts to his hand as well as a broken cell phone. All three security personnel struggled to physically move him to the security office while defendant resisted. Defendant continued to struggle all the way to the security office, including by crossing his arms to prevent the Target security personnel from handcuffing him. Once they got him to the security office, it took the efforts of all three personnel to eventually handcuff defendant's arms behind his back. They were then able to handcuff him to a bench, at which point he became relatively calm.
Marc T. described the incident as one of the "very few" fights he had participated in as a security officer, and that this one was particularly aggressive. Another of the security personnel that testified at trial said that defendant was "probably the most aggressive we've had," given how long it took to subdue him and the strength of his resistance.
A police officer arrived at the security office, and defendant told the officer that he intended to purchase the phone.
Defendant took the stand at trial and gave a slightly different account of events. Defendant admitted that he entered the store with the intent to steal the phone, and described how he did so. However, he denied that the security personnel ever identified themselves as such and denied using force to attempt to escape or resist. He explained that when Marc T. grabbed him from behind, he lost his balance and "leaned back kind of swinging [his] arms a little because [he] was off." He also testified that he may have thrown his elbows back while he was trying to run away, or because the security personnel were handling him such that he was losing his balance. He denied that he fell over the decorative ball or caused anybody else to fall. He also denied resisting, and instead actively put his hands behind his back. According to defendant, he never swung his fists or otherwise swung at or resisted anyone. Defendant could not explain why one of the security personnel had cuts on his hand and a broken phone.
The San Bernardino County District Attorney charged defendant by information with second degree robbery. The information also alleged that defendant had committed two prior prison offenses.
On January 16, 2018, a jury found defendant found guilty on the sole count. A bifurcated court trial was held as to the two prior prison offense allegations. The trial court found both allegations true, but considered only one of them for sentencing purposes as the court granted defendant's motion under section 1170.18 as to one of them. The trial court sentenced defendant to a total of four years in prison consisting of the midterm of three years for the robbery and an additional year for the prior prison offense.
"Section 1170.18 . . . provides that persons who have completed felony sentences for offenses that would now be misdemeanors under Proposition 47 may file an application with the trial court to have their felony convictions 'designated as misdemeanors.'" (People v. Rivera (2015) 233 Cal.App.4th 1085, 1093.) By granting defendant's motion under section 1170.18, defendant's prior prison offense was reduced to a misdemeanor and could not be used to impose a one-year prior prison enhancement. (See People v. Evans (2016) 6 Cal.App.5th 894, 901.)
Defendant timely appealed.
III. DISCUSSION
Defendant argues that the People engaged in misconduct during their cross-examination of defendant by seeking to impeach him in inappropriate ways. Specifically, defendant argues the People questioned him about inadmissible prior arrests and about his prior offenses without a good faith belief in an affirmative response or intention to prove the facts the questions implied. In supplemental briefing, defendant argues that recent changes in the law require us to vacate the additional one-year term imposed for his prior prison offense.
A. Relevant Background
Before trial, the trial court granted defendant's motion to bifurcate the issue of his two prison priors, but also ruled that "should the defendant testify he would be able to be impeached with those two prior convictions." Defendant does not contend that either of these rulings were in error.
Defendant did opt to testify on his own behalf. During this testimony, defendant admitted that he had previously been arrested for and convicted of thefts. Defendant denied that he used force or violence in any of these past incidents.
During cross-examination, the People asked several questions about defendant's prior criminal history, beginning with an alleged arrest in 2013 for stealing jewelry. The People asked whether defendant recalled being "caught stealing at a Kmart in 2013." Defendant responded affirmatively. The People then asked defendant what he stole. Defense counsel successfully objected to this question as improper impeachment. In response to further questioning on the incident, defendant denied that he made up a story after being caught.
Nevertheless the People continued to ask about this incident, including asking whether defendant went "to a jewelry aisle with a pair of scissors that [he] brought to the stores . . . and [took] $10,000 worth of earrings and jewelry . . . ?" Defense counsel successfully objected to this question as improper impeachment. The People attempted to defend the question by arguing that they were trying to refresh defendant's recollection, but the court rejected this argument and again sustained the objection. Despite this, the People asked defendant "[d]o you remember stealing a bunch of earrings?" Defense counsel again objected, and the court instructed the People to move on to any statement defendant made. The People, apparently reading from a police report, then asked defendant "what [he] meant when [he] said 'I'm not leaving the store,'" while his "pockets [were] stuffed with tens of thousands of dollars worth of jewelry?" Defense counsel objected, but defendant answered, denying he had "tens of thousands" worth of jewelry in his pockets. The People asked how much he did have, and defendant simply denied leaving the store. Shortly after, defense counsel successfully objected to the question as lacking foundation, argumentative, calling for hearsay, and calling for speculation. The People continued to question defendant about this incident, with defendant again denying making up any false story after being caught.
After completing his line of questioning regarding the first Kmart incident, the People asked defendant if he recalled going back to the same Kmart eight days later. Defense counsel successfully objected to this question as improper impeachment. The People then continued to ask a series of questions about the underlying facts of this incident, including whether defendant went back to steal more, and whether he stole a car to go there. Defense counsel objected to each question as improper impeachment, and each objection was sustained. Finally, the People asked defendant about specific statements made during this second Kmart incident, including whether he made up a story when caught in a stolen car and whether he recalled telling the police that he bought the stolen car for $300 from an unknown individual. These questions were allowed, and defendant denied having made the statements.
In response to defendant's denials, the People asked "[i]f an officer came in and said that you made up that story about being caught in a stolen car and you said you bought it for $300, would that be a lie?" Defense counsel objected to the question, and this objection was sustained. The People asked defendant whether he knew "why an officer might come in and say that?" Defense counsel again objected, and the objection was again sustained.
Eventually the People moved on to questions about a later alleged incident. The People asked defendant whether he remembered stealing cell phones from a T-Mobile store. Defense counsel objected that this question constituted improper impeachment, and the trial court sustained the objection and struck the question from the record. The People nevertheless asked defendant whether he lied about stealing the phones. Defense counsel did not object to this question, and defendant answered "[w]ell, if I got caught, I didn't lie about it cause I got caught." The People asked defendant whether he broke into a display at the T-Mobile store, which drew another improper impeachment objection from defense counsel. The trial court sustained this objection.
The People moved on to ask defendant a series of questions regarding whether he had any explanation for why the security personnel who testified against him would lie about his actions. The trial court sustained objections to this entire line of questioning and told the People that "we're not going down that road."
The People also asked defendant whether he recalled committing a burglary in December 2011. After asking for clarification, defendant responded "[b]ut I don't burglary—what do you mean burglary? I've never—," before being cut off by the Peoples' next question: "[d]id you resist arrest and resist a peace officer when you got caught stealing?" Defendant denied having done so. In response, the People questioned whether defendant believed it would be a lie "[i]f that's in your history." Defense counsel objected on the basis that the question was argumentative, called for speculation, was asked and answered, and constituted improper impeachment. The trial court sustained the objections. Nevertheless, the People asked nearly the exact same question, which defense counsel again objected to successfully.
Finally, the People asked defendant whether he "consider[ed] breaking into people's houses to be violent." Defendant denied ever breaking into someone's house. However, defense counsel objected to this question as argumentative, and the trial court sustained the objection and struck defendant's answer.
After the conclusion of the People's cross-examination, defendant moved for a mistrial on two independent bases. The first of these bases is not being challenged on appeal. The second concerned the same issues present here on appeal: namely, whether the People engaged in prosecutorial misconduct in continuing to ask improper impeachment questions. In ruling on the motion, the trial court said it agreed that the People "should not have gotten into the circumstances and facts of each of the felony convictions." It also admonished the People for raising the specter of arrests for other crimes not considered by the court in its initial ruling that defendant's prior two convictions were admissible. Nevertheless, the trial court noted that defendant's arrest for simple battery and resisting arrest was proper impeachment given defendant's "statement that he's never been violent."
Ultimately, the court denied the motion for mistrial, stating it felt "the conduct of [the People] [did] not rise to the level of prosecutorial misconduct rendering the criminal trial fundamentally unfair." The trial court reasoned that "even if the jurors were able to consider the facts supporting the prior conviction . . . it's tailored to [defendant's] defense. [Defendant] admit[s] . . . [h]e steals. . . . [¶] So in terms of the prejudicial effect of [the People's] examination, I don't think it discredited [defendant's] defense whatsoever or prevents [defendant] from arguing to the jury that the defendant is not guilty of using force or fear."
However, the court did agree to admonish the jury that it was their job, not the job of the defendant or attorneys, to decide the credibility of a witness. The court did so instruct the jury, as well as instructing them that the specific facts underlying defendant's prior convictions are irrelevant.
B. The Alleged Misconduct was Not Prejudicial
"'"A prosecutor's conduct violates a defendant's constitutional rights when the behavior comprises a pattern of conduct so egregious that it infects '"the trial with unfairness as to make the resulting conviction a denial of due process."'"'" (People v. Sanchez (2014) 228 Cal.App.4th 1517, 1528, quoting People v. Hamilton (2009) 45 Cal.4th 863, 920.) Even if misconduct does not reach the threshold to present a deprivation of constitutional due process "it may still violate California law if it involves the '"use of 'deceptive or reprehensible methods' when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted."'" (Sanchez, at p. 1528, quoting People v. Dykes (2009) 46 Cal.4th 731, 760.)
Defendant alleges two separate bases for his claim of prosecutorial misconduct. First, defendant argues the People engaged in prosecutorial misconduct by inquiring about defendant's previous arrests. Second, that the People engaged in prosecutorial misconduct by inquiring about the underlying facts of defendant's previous arrests and convictions. We do not address whether either of these alleged examples of misconduct rise to the level of reviewable prosecutorial misconduct, as it is ultimately not reasonably probable a more favorable outcome would have resulted absent the alleged misconduct.
1. Defendant Did Not Forfeit His Right to Challenge His Conviction on the Basis of Prosecutorial Misconduct
Preliminarily, we address the People's argument that defendant has forfeited his right to challenge his conviction on the basis of prosecutorial misconduct. As the record demonstrates, defense counsel timely objected, on numerous occasions, that the People were asking questions constituting improper impeachment. Defendant also brought a timely motion for mistrial on many of the same bases defendant asserts here on appeal. Though a motion for mistrial brought after the fact is not enough, on its own, to satisfy defense counsel's obligation to make a timely objection, in this case the motion convinced the trial court to reverse its earlier decision and admonish the jury regarding its ultimate authority in determining credibility and the irrelevance of the underlying facts of defendant's convictions. (See, e.g., People v. Collins (2010) 49 Cal.4th 175, 198 [finding that defendant forfeited prosecutorial misconduct claim for failure to timely object, but that the appellate court could review the trial court's denial of the mistrial motion].) In short "[d]efense counsel's objections to the admissibility of the evidence for impeachment purposes sufficed to preserve this issue for appeal." (People v. Pearson (2013) 56 Cal.4th 393, 434; see People v. Young (2005) 34 Cal.4th 1149, 1186 [holding that though defendant "did not request an assignment of misconduct or an admonition that the jury disregard the impropriety, through his relevance objection he gave the trial court an opportunity to correct the asserted abuse"].)
Therefore, defendant did not forfeit his right to challenge his conviction on this basis, and we address defendant's claims on the merits.
2. The People's Alleged Misconduct Was Not Prejudicial
Next, we consider whether defendant was prejudiced, assuming the People committed prosecutorial misconduct as alleged. "A defendant's conviction will not be reversed for prosecutorial misconduct . . . unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct." (People v. Crew (2003) 31 Cal.4th 822, 839.) In this case defendant argues that the misconduct alleged prejudiced him because his defense rested on a credibility determination. Namely, defendant claims that his defense turned on whether the jury believed him that he did not use violence while stealing the phone, and that the prosecutor's alleged misconduct impermissibly called this credibility into question.
Contrary to defendant's claim, this case did not turn solely on credibility determinations. Video footage of the incident appears to show defendant using force in attempting to retain possession of the object, which the trial court itself recognized. This footage corroborated the eyewitness accounts of two store employees. In addition, at least one of these employees sustained an injury, which was documented in photographs shown to the jury.
This distinguishes the present case from the case defendant relies on, People v. Wagner (1975) 13 Cal.3d 612. In that case "[t]he evidence against defendant consisted primarily of the testimony of the two arresting state narcotics agents and codefendant." (Id. at p. 620.) The lack of physical evidence tying defendant to the crime was central to that court's prejudice analysis "[s]ince the resolution of defendant's guilt or innocence turned on his credibility vis-a-vis that of the prosecution witnesses." (Id. at p. 621.) Given the additional physical evidence here which contradicts defendant's testimony, Wagner does not necessarily counsel in favor of finding prejudice.
Even if defendant's case did turn on credibility determinations, the record shows that defendant might have done enough damage to his own credibility even without the alleged misconduct. Defendant's defense centered on admitting that he intended to steal the phone, but denying he used force. When the People asked defendant what story he told the questioning police officer on the day of the crime, he responded that he "told [the officer] the exact story I'm telling you." But only moments later defendant admitted he told the officer that he was "'debating whether [he] wanted to make payments on it or put a down payment on it because [he] was going to buy that phone.'" Defendant later attempted to clarify that he "intended to steal it. . . . But that don't [sic] mean I can't think about buying it at the same time."
This was not the only discrepancy in defendant's testimony. Defendant admitted that the day prior to the incident, he went to a different Target location with the intent to steal an iPhone. Defendant denied that he chose a different store the next day because he was afraid of being caught if he returned to the first store. Instead defendant claimed that the Fontana Target he entered on October 21, 2017, was the nearest Target to his home in San Bernardino. When pressed, defendant admitted that there was probably a closer Target, and changed his story to say that he was in the Fontana area because he was visiting a friend prior to the incident.
Nor did the discrepancies stop there. Defendant also testified that he had a greater and more detailed recollection of his 2015 theft than the 2017 theft which had occurred only three months prior to trial, in an apparent attempt to avoid admitting that he used similar techniques in both thefts. Perhaps most damningly, defendant himself admitted that in the past he had lied to cover his tracks. Thus, defendant may have damaged his credibility in the eyes of the jury even absent the prosecutor's alleged misconduct.
Even without defendant's own credibility issues, the alleged misconduct's effect was limited simply because much of it was successfully objected to, the questions and responses stricken, the jury admonished to disregard it, and the People admonished not to raise it any further. For instance, prior to instructing the jury, the court stated that it "felt [it] made a mistake yesterday afternoon," and that "when [the People were] questioning [defendant] about whether or not loss prevention officer[s] were lying, I should have sustained the objection. So I'm going to . . . sustain [defense counsel's] objection to those questions and the responses by [the defendant], and this is stricken from the record." The court also stated that "any reference to specific facts underlying [defendant's] prior convictions also is irrelevant. . . . So any reference to the underlying facts to support the conviction through examination of [defense counsel] and [the People] will be irrelevant and those will be stricken from the record." Where the People make improper statements or ask improper questions, but "a trial court sustains defense objections and admonishes the jury to disregard the comments, we assume the jury followed the admonition and that prejudice was therefore avoided." (People v. Bennett (2009) 45 Cal.4th 577, 598; see People v. Jones (1997) 15 Cal.4th 119, 168, overturned on another ground by People v. Hill (1998) 17 Cal.4th 800.) Any prejudice was therefore cured by defense counsel's timely objections and the court's unequivocal admonitions. (See People v. Riggs (2008) 44 Cal.4th 248, 299 [finding that even if prosecutor made impermissible references to defendant's exercise of his right to remain silent during a police interview, "the trial court's admonition to disregard any mention of the first interview was adequate to eliminate any possible prejudice because we assume the jury followed the admonishment and that prejudice was therefore avoided"].)
C. Defendant's Prison Prior Enhancement Must Be Stricken
In supplemental briefing, defendant argues that a recent change in the law makes defendant's prior prison offense no longer eligible to be used to enhance a felony sentence and must therefore be stricken. The People agree, but request that we remand the case to the trial court for resentencing. We agree with the parties that defendant's one-year enhancement for a prior prison offense must be stricken but find remand unnecessary.
Senate Bill No. 136 (Senate Bill 136) was passed into law in October 2019 and became effective January 1, 2020. (2019-2020 Reg. Sess.; Cal. Const., art. IV, § 8, subd. (c)(2).) Senate Bill 136 amends section 667.5, subdivision (b), to allow the imposition of an additional one-year term for prior prison offenses only when the prior prison offense was for a sexually violent offense as defined in Welfare and Institutions Code section 6600, subdivision (b). (Stats 2019, ch. 590, § 1.) It is undisputed that none of defendant's prior convictions was for a sexually violent offense. Accordingly, under section 667.5, subdivision (b), as amended, defendant would not qualify for the imposition of the one-year enhancement for any of his prior prison terms.
Defendant's conviction was not final as of the effective date of this change. (See People v. Vieira (2005) 35 Cal.4th 264, 306 ["for the purpose of determining retroactive application of an amendment to a criminal statute, a judgment is not final until the time for petitioning for a writ of certiorari in the United States Supreme Court has passed"].) Because defendant's conviction was not final until after the effective date of the amendment, and because the amended statute leads to a reduced sentence, the amendment to section 667.5, subdivision (b), will apply retroactively. (See People v. Garcia (2018) 28 Cal.App.5th 961; In re Estrada (1965) 63 Cal.2d 740, 745.) Accordingly, the one-year sentence enhancement imposed must be stricken.
We would ordinarily remand for resentencing so the trial court could reconsider the entire sentencing scheme when striking the one-year enhancement for defendant's prior prison offense. (See People v. Hill (1986) 185 Cal.App.3d 831, 834 [on remand for resentencing a trial court is "[n]ot limited to merely striking illegal portions" of a sentence but "may reconsider all sentencing choices," "because an aggregate prison term is not a series of separate independent terms, but one term made up of interdependent components"]; People v. Hubbard (2018) 27 Cal.App.5th 9, 13.)
However, remand for resentencing is not necessary here. The statutory punishment for second degree robbery is two, three, or five years in state prison. (§§ 212.5, subd. (c); 213, subd. (a)(2).) The trial court sentenced defendant to the midterm, plus the one-year enhancement, for a total of four years. On remand a trial court may reconsider all relevant factors and re-sentence "subject only to the limitation that the aggregate prison term could not be increased." (People v. Burbine (2003) 106 Cal.App.4th 1250, 1256.) While the court found two prior prison offenses true, neither was a sexually violent offense and one was found to not be a prior conviction for sentencing purposes pursuant to a motion under section 1170.18.
Therefore, even if remanded, the sentencing court could not impose the five-year aggravated term because this would exceed the original aggregate sentence of four years. Nor could the court add an additional year for any other prior prison offense. Because remand for resentencing is unnecessary, we exercise our independent authority to strike the one-year prior prison offense enhancement and reduce the aggregate sentence to three years.
IV. DISPOSITION
We modify defendant's sentence to strike the one-year prior prison term imposed under section 667.5, subdivision (b), reducing defendant's sentence to an aggregate term of three years. We remand the matter for the limited purpose of directing the trial court to ensure a corrected abstract of judgment is prepared and forwarded to the California Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. CODRINGTON
J.