Opinion
A156558
12-21-2022
THE PEOPLE, Plaintiff and Respondent, v. MARLON J. BISHOP, Defendant and Appellant.
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. 225040
FUJISAKI, J.
Defendant Marlon Bishop physically attacked Jessica H. at a public park, causing her various injuries including swelling, bruises, abrasions, lip lacerations, and the loss of a front tooth. A jury convicted defendant of mayhem (Pen. Code, § 203), assault with force likely to cause great bodily injury (hereafter force-likely assault; § 245, subd. (a)(4)), and false imprisonment (§ 236), and found true the allegation that defendant had served two prior prison sentences (§ 667.5, subd. (b)), as well as other enhancement allegations. The jury failed to reach a verdict on the other charged counts as well as the great bodily injury allegation (§ 12022.7, subd. (a)) attendant to the force-likely assault count. Defendant was sentenced to a total of 23 years in prison.
Pursuant to California Rules of Court, rule 8.90, governing "Privacy in opinions," we anonymize the names of the victim and witnesses.
Further unspecified section references are to the Penal Code.
On appeal, defendant raises claims of instructional error, prosecutorial misconduct, judicial misconduct, and ineffective assistance of counsel (IAC). He further contends the prison prior term enhancements must be stricken due to the passage of Senate Bill No. 136 (2019-2020 Reg. Sess.) (Senate Bill 136); that he should be resentenced in light of postsentencing changes in the law effected by Assembly Bill No. 518 (2021-2022 Reg. Sess.) (Assembly Bill 518) and Senate No. Bill 567 (2021-2022 Reg. Sess.) (Senate Bill 567); and that this court should independently review the proceedings on his Pitchess motion below.
Pitchess v. Superior Court (1974) 11 Cal.3d 531 (Pitchess).
We conclude defendant has not demonstrated prejudicial error on his claims of instructional error, prosecutorial misconduct, judicial misconduct, and Pitchess error. We further conclude defendant has not carried his burden to establish defense counsel's ineffectiveness on direct appeal for purposes of his IAC claim. We agree, however, that defendant's prison prior term enhancements must be stricken and that he must be resentenced in light of newly effective legislation. Accordingly, we will strike the prison priors and remand for resentencing. In all other respects, the judgment is affirmed.
Factual and Procedural Background
In or around November 2014, Jessica H. (Jessica) was living in a tent with her boyfriend, Fred, in Franklin Square Park. One day, she saw defendant staring at her from a trail. This made Jessica feel uncomfortable, and Fred told defendant to leave. About a week later, Jessica saw defendant again staring at her from the trail. Defendant told Jessica she was pretty, and Jessica mentioned she had a boyfriend. Jessica feared that defendant had a knife because he stared at her with his hands in his pockets for several minutes. Eventually, Fred came and told defendant to leave.
On November 11, 2014, at around 1:30 p.m., defendant again approached Jessica and wanted her to "get high with him." He again told her she was pretty and said he wanted to be her boyfriend. Jessica told defendant to leave her alone. But as she turned to walk away, defendant hit the back of her head with what she believed was his fist. The blow hurt so much that Jessica "lost control of [her] body." Defendant then hit Jessica in the face several times, causing her to fall to the ground. Defendant climbed on top of Jessica and hit her all over her body for about 30 minutes. He placed his hands on her throat, and she struggled to breathe.
Jessica screamed for help. When a member of her camp approached, defendant told the individual to stay back. Defendant commanded Jessica to stop screaming, and she eventually stopped because she felt it was her best option for survival. Defendant put his hand down the back of Jessica's pants and touched her rear end. He eventually flipped Jessica over and let her sit up. She had blood all over her shirt, and her right front tooth was gone. Defendant told Jessica that she was going with him. He picked up a hoodie and told her to wear it and then draped a blanket over head like a hood.
As they walked through the park, defendant held a rock in his hand, and Jessica was scared she was going to die. When exiting the park, defendant told Jessica that he "was going to be a pimp, that [she] wasn't going to cheat on him, and [she] was going to work for him," and that she belonged to him and "was not going to see [her] family and friends again." Jessica assumed the "work" meant prostitution "because he had told me I wasn't going to cheat on him and I was going to be with him, that I was property."
Jessica eventually pushed defendant away and ran across the street. Witness Robert M. heard Jessica screaming for help and called the police. As defendant walked in their direction, Robert M. stayed between defendant and Jessica while talking to the emergency dispatcher. Defendant turned northward but was soon detained by police officers.
San Francisco Police Officer Joe Clark arrived at the scene and saw Jessica sobbing uncontrollably. Clark saw that Jessica's front tooth was missing, her lip was "busted," and her mouth was bleeding profusely. Jessica identified defendant as her attacker. Clark observed spots of blood on defendant's shirt and hands and took pictures of a nearby backpack and a white "Apple charger" and power cord. The charger and power cord appeared to have dried blood on them, but no fingerprints.
Jessica was taken to Saint Luke's Hospital, where the treating physician observed her hand abrasions, lip lacerations, a missing tooth, and some loose teeth. Jessica complained of pain to her hand, face, and head, but declined stiches to her lip because she was "against needles." The physician found no swelling or injuries to her head or hands based on a CT scan and x-rays. Two days later, Jessica went to San Francisco General Hospital where she obtained painkillers and antibiotics and underwent chest x-rays for chest pain. The treating physician, Dr. Eric Issacs, noted soft-tissue swelling on the back of Jessica's head and right temple, abrasions on her forehead, hands, and lips, lacerations and swelling on her lips, a missing tooth, five loose teeth, tenderness on her neck muscles and pelvis, and bruising on her calf. Dr. Issacs's notes documented that Jessica "appears in moderate pain, distress."
Sergeant Antonio Flores interviewed Jessica and reviewed the items taken from defendant, including the nearby backpack and power charger. Flores also searched defendant's residence at a hotel. DNA testing on evidence obtained from the crime scene showed that a reference swab of Jessica's DNA matched swabs taken from defendant's left hand, the power cord, defendant's jacket, and a cardboard box inside defendant's backpack.
Defendant was charged by information with seven counts, and trial was held from June to July 2018. The jury found defendant guilty of counts three (mayhem, § 203), six (force-likely assault, § 245, subd. (a)(4)), and seven (false imprisonment, § 236). However, the jury was deadlocked on counts one (kidnapping with intent to commit robbery or specified sex offenses, § 209, subd. (b)(1)), two (assault with intent to commit mayhem or specified sex offenses, § 220, subd. (a)(1)), four (sexual battery by restraint, § 243.4, subd. (a)), five (assault with a deadly weapon, § 245, subd. (a)(1)), and the great bodily injury allegation attendant to count six (§ 12022.7, subd. (a)), and the trial court declared a mistrial on those counts.
A separate trial was held on the allegations of defendant's prior strike (§§ 667, subds. (d), (e), 1170.12, subds. (b), (c)); two prior prison sentences for selling cocaine base for sale (§ 667.5, subds. (a), (b)); and his commission of the current offenses while on parole (§ 1203.085, subd. (b)). The jury found the allegations to be true.
The trial court sentenced defendant to a total of 23 years in prison: the upper term of eight years for mayhem, doubled to 16 years for the strike prior; five years for defendant's prior serious felony conviction; two years for defendant's two prison priors; and the upper terms of four years for force-likely assault and three years for false imprisonment, doubled to eight and six years, but stayed under section 654.
In January 2020, we granted defendant's motion to stay the appeal pending resolution of his motion to dismiss two of the mistried counts (one and five) as greater offenses of convicted counts six and seven. The trial court eventually granted the motion as to count one but denied it as to count five, and we dissolved the stay in November 2020. According to defendant, hearings to set a retrial were continued several times, and a settlement conference was held in June 2021. We are not aware of any further developments as to retrial of the remaining mistried counts.
Discussion
A. Instructional Error
Defendant argues the trial court gave a jury instruction on count five (assault with a deadly weapon) that was improperly argumentative and lessened the prosecution's burden of proof on count six (force-likely assault) because it effected a mandatory presumption that defendant's use of hands and feet supported a conviction for force-likely assault. Defendant further contends the jury instruction on count six defining "great bodily injury" was ambiguous and, in combination with the prosecutor's closing argument, erroneously instructed the jury that mere moderate harm was sufficient to establish great bodily injury.
1. Additional Background
The trial court instructed the jury that in order to prove defendant's guilt on count six (force-likely assault), the prosecution had to prove "[t]he force used was likely to produce great bodily injury"; that defendant "did that act willfully" and "was aware of facts that would lead a reasonable person to realize that his act by its nature would directly and probably result in the application of force to someone"; and that he had the present ability to apply such force to a person. "Great bodily injury" was defined as "significant or substantial physical injury. It is an injury that is greater than minor or moderate harm." The same definition was given in the jury instruction on the great bodily injury enhancement allegation attendant to counts one, two, five, and six.
During deliberations, the jury submitted a question to the trial court on count five (assault with a deadly weapon) as to whether "any of the following items could be considered an object, instrument or weapon, within the definition of a deadly weapon other than a firearm: fist, the gr[oun]d, a ring on a fist, a foot, a shoe, the weight of a human body." After discussing the matter with counsel, with each side presenting proposed responses, the court issued a responsive instruction that mostly tracked the prosecution's proposed language. As relevant here, the final two sentences of the responsive instruction read: "You are instructed that hands and feet do not constitute deadly weapons. [¶] However, the use of hands and feet may support a conviction on the theory of assault by means of force likely to cause great bodily injury."
During closing arguments, the prosecutor told the jury it could "find that [Jessica's injuries were] more than minor or moderate harm, which is how great bodily injury is defined. [¶] Dr. [Issacs] deemed it-in his medical opinion . . . as moderate pain that she was in, or moderate distress. He's not speaking from a legal definition. You are the deciders, not any doctor, about what you think is great bodily injury. [¶] It's defined for you, but you get to decide what is more than something minor or trivial. It's substantial injury. If not the back of the head, then certainly the loss of the tooth."
2. Analysis
"Instructional error claims are reviewed de novo." (People v. Medellin (2020) 45 Cal.App.5th 519, 534 (Medellin).) We ask "whether it is reasonably likely the jury understood the challenged instruction in a way that undermined the presumption of innocence or tended to relieve the prosecution of the burden to prove defendant's guilt beyond a reasonable doubt." (People v. Paysinger (2009) 174 Cal.App.4th 26, 30.) In making this determination, we view the instructions as a whole and assume the jurors are capable of understanding and correlating all instructions given. (People v. Richardson (2008) 43 Cal.4th 959, 1028 (Richardson).)
A mandatory presumption" 'tells the trier of fact that it must assume the existence of the ultimate, elemental fact from proof of specific, designated basic facts.'" (People v. Roder (1983) 33 Cal.3d 491, 498.) "[T]he prosecution may not rest its case on a mandatory presumption unless 'the basic fact proved compels the inference of guilt beyond a reasonable doubt.'" (People v. Reyes Martinez (1993) 14 Cal.App.4th 1412, 1416.) In Reyes Martinez, the contested issue was whether a kidnapping victim was moved" 'for a substantial distance,'" and the jury was instructed that "movement of 500 feet or more 'is sufficiently substantial to sustain a kidnapping conviction.'" (Id. at p. 1417.) The appellate court held the instruction created an impermissible mandatory presumption because "a reasonable juror not only could, but almost certainly would, interpret these instructions together to mean the People established the element of substantial distance if they proved the victim was moved 500 feet or more." (Ibid.)
Here, the jury was instructed that the use of hands and feet "may support a conviction" for force-likely assault. In addition to this permissive phrasing, the instruction on count six explained the People had to prove that defendant used force "likely to produce great bodily injury" and did so with awareness of facts that would lead a reasonable person to realize that the act by its nature would directly and probably result in the application of force to someone. The jury was also instructed that great bodily injury means significant or substantial physical injury. Construing the instructions as whole (Richardson, supra, 43 Cal.4th at p. 1028), we conclude a reasonable juror would not have believed a conviction for force-likely assault was mandated if the prosecution merely proved that defendant used his hands and feet. Nor was the prosecution's burden of proof lessened, as the instructions did not remove from the jury's consideration the key question of whether defendant used force likely to produce significant or substantial injury if it merely found that he used his hands and feet.
Whether the last sentence of the responsive instruction was improperly argumentative presents a closer call. True, the responsive instruction drew the jury's attention to a specific piece of evidence (i.e., defendant's use of his hands or feet), and "[i]n a proper instruction, '[what] is pinpointed is not specific evidence as such, but the theory of the defendant's [(or the prosecution's)] case.'" (People v. Wright (1988) 45 Cal.3d 1126, 1137.) However, the sentence in question was an accurate statement of the law (People v. Aguilar (1997) 16 Cal.4th 1023, 1028 [use of hands and feet alone may support conviction for force-likely assault]), and it potentially prevented the jury from overreading the significance of the sentence preceding it.
In any event, even assuming error, it was harmless. Under People v. Watson (1956) 46 Cal.2d 818 (Watson), we assess whether it is reasonably probable a more favorable result would have been obtained absent the argumentative instruction. (People v. Santana (2013) 56 Cal.4th 999, 1012 (Santana).) Here, there was no dispute that defendant was the perpetrator of the attack, and the jury was already attuned to the evidence of defendant's use of hands and/or feet in attacking Jessica. Not only did Jessica's account of the attack refer extensively to defendant's use of his hands, but the jury's question on count five specifically asked about the use of a "fist" or "foot." None of the cited cases on argumentative instructions involved a trial court's response to a jury's request that already pinpointed the specific evidence in question. (See Santana, supra, 56 Cal.4th at p. 1002 [initial instruction by trial court]; People v. Hunter (2011) 202 Cal.App.4th 261, 264 [pinpoint instruction requested by prosecution given by trial court].) On this record, we see no reasonable probability that defendant would have obtained a more favorable result on the force-likely assault count had the court refrained from mentioning the use of hands and feet in its responsive instruction.
Defendant next contends the jury was improperly instructed on count six when it was told that great bodily injury "is an injury that is greater than minor or moderate harm." Relying on Medellin, defendant contends the instruction was ambiguous because it suggested the jurors could find great bodily injury based on evidence of more than minor harm only, or merely moderate harm, and the prosecutor purportedly compounded the ambiguity when arguing that the jurors "get to decide what is more than something minor or trivial."
In Medellin, supra, 45 Cal.App.5th 519, a majority of the court held that CALCRIM No. 875's use of the phrase" 'greater than minor or moderate harm'" to define great bodily injury was ambiguous because the jurors could have convicted the defendant "if they believed either greater than minor harm or greater than moderate harm was sufficient." (Medellin, at p. 534.) Medellin held the ambiguity was compounded by the prosecutor, who "repeatedly" and "plainly misstated the law" in his arguments to the jury (id. at pp. 533, 535-536) by saying," 'An injury that is greater than minor. That is all I need to prove. And we submit that when someone gets stitches, then it is more than minor. We submit that when someone has to go to the hospital, that it is more than minor.... And notice this is "or" right here. And according to the law, it is sufficient.'" (Id. at pp. 531-532.)
Shortly after Medellin was decided, a different panel of the same court disagreed with Medellin's main holding. (People v. Sandoval (2020) 50 Cal.App.5th 357, 360-362, citing People v. Quinonez (2020) 46 Cal.App.5th 457, 466 [finding no ambiguity in definition of great bodily injury under CALCRIM Nos. 875, 860] [force-likely assault on firefighter or peace officer], and 3160 [great bodily injury enhancement].) Sandoval reasoned that the phrase" '[i]njury that is greater than minor or moderate harm' cannot reasonably be read to mean injury that is more than minor but less than moderate. Such an interpretation simply does not make sense, legally or grammatically, particularly when the phrase is preceded by the explanation that great bodily injury means physical injury that is 'significant or substantial.' In our view, there is no reasonable likelihood the jury would parse the instructions in such a tortured way as to create the ambiguity defendant and the Medellin majority find." (Sandoval, at p. 361.)
We agree with and adopt Sandoval's reasoning and holding. We also find Medellin distinguishable in that the prosecutor here did not plainly and repeatedly tell the jury that all the prosecution needed to prove was more than minor harm. Although the prosecutor briefly remarked that the jurors "get to decide what is more than something minor or trivial," he immediately followed this statement by cautioning the jury it had to find a "substantial injury." Additionally, the prosecutor's efforts to distinguish Dr. Issacs's testimony as a medical rather than legal opinion were due to the fact that Dr. Issacs described Jessica's pain as "moderate." These efforts were necessary only if the prosecutor was attempting to prove Jessica suffered more than moderate harm.
In sum, the trial court's responsive instruction on count five, though perhaps arguably argumentative as to count six, was not prejudicial, and its instruction on count six was not otherwise erroneous.
B. Misconduct Claims
Defendant contends the prosecutor committed misconduct by repeatedly using improper speaking objections to denigrate defense counsel in front of the jury; vouching and invoking the prestige of his office; and accusing defense counsel of improper vouching and/or asserting facts not in evidence. Defendant further contends the trial court committed judicial misconduct by unevenly ruling on objections in favor of the prosecution; inappropriately communicating the court's opinion regarding legal and factual disputes in favor of the prosecution; and unreasonably restricting defendant's right to cross-examine witnesses.
1. Forfeiture
As a threshold matter, there is no dispute that defendant failed to assert timely objections or seek admonitions for the claimed instances of prosecutorial misconduct as well as for most of the claimed instances of judicial misconduct, which typically results in forfeiture of such claims unless it appears an objection or admonition could not have cured any resulting prejudice or that objecting would have been futile. (People v. Rivera (2019) 7 Cal.5th 306, 334; People v. Mumin (2021) 68 Cal.App.5th 36, 61.) Defendant argues that objecting would have been futile given the trial court's "marked hostility towards the defense and deference to the prosecution," and in support, he cites several examples of clashes between defense counsel and the court throughout trial.
We note that on at least one occasion, defense counsel successfully prompted the trial court to give a curative admonition to the jury for the court's potentially improper remarks. At the same time, our review of the trial record reveals a measure of tension between the trial court and defense counsel that lends credence to defendant's futility argument. (See People v. Sturm (2006) 37 Cal.4th 1218, 1237 (Sturm) [unfair to require defense counsel to continue objecting and "provoking the trial judge" given evident hostility].) One contentious and concerning exchange occurred outside the presence of the jury during the separate trial on defendant's prior strike and prison priors. The incident concerned an accusation by defense counsel that the trial court and prosecutor had engaged in ex parte communications regarding the jury instructions while defense counsel was meeting with his client in the holding cell. From our review of the transcript, we observe that defense counsel did not initially raise the matter in an inflammatory manner and simply sought to understand the substance of the ex parte communications, but the trial court acted with marked defensiveness and hostility, and eventually both defense counsel and the court lost their composure.
"[O]ur cases have never suggested that a trial court is relieved of its obligation to remain temperate and impartial when confronted with a lawyer's provocative or improper behavior." (People v. Nieves (2021) 11 Cal.5th 404, 482 (Nieves).) Fortunately, the jury was not present to witness this incident, and defendant does not challenge any ruling with regard to this exchange (or the ex parte communications themselves), which occurred at the tail end of trial and after all of the purported instances of judicial misconduct raised in this appeal. Nevertheless, the defensiveness exhibited by the trial court in this instance lends some support for application of the futility exception to the forfeiture rule.
Finally, because judicial economy is a principal rationale of the forfeiture rule, the interests of judicial economy would be better served by addressing the issue on direct appeal rather than in a later habeas corpus claim of IAC for failure to timely object. (People v. Butler (2013) 31 Cal.4th 1119, 1128.) Accordingly, we shall address the merits of defendant's prosecutorial and judicial misconduct claims.
2. Prosecutorial Misconduct
" 'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such" 'unfairness as to make the resulting conviction a denial of due process.'" '" (People v. Friend (2009) 47 Cal.4th 1, 29.) Conduct constitutes prosecutorial misconduct under state law only if it involves"' "the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury." '" (People v. Benavides (2005) 35 Cal.4th 69, 108.)
When a defendant's claim focuses upon prosecutorial comments before the jury, the issue is whether a reasonable likelihood exists that the jury construed or applied any of the complained-of remarks in an objectionable fashion. (People v. Spector (2011) 194 Cal.App.4th 1335, 1403 (Spector).) "A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel." (People v. Hill (1998) 17 Cal.4th 800, 832 (Hill).) "However, 'the prosecutor has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account.'" (People v. Winbush (2017) 2 Cal.5th 402, 484 (Winbush).)
We review misconduct claims "under the de novo standard and on the basis of the entire record." (People v. Williams (2021) 60 Cal.App.5th 191, 202.)" '[W]e "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements." '" (Spector, supra, 194 Cal.App.4th at p. 1403 .)
a. Alleged Denigration of Defense Counsel Through Speaking Objections
Defendant argues the prosecutor committed misconduct by repeatedly making speaking objections that denigrated defense counsel. For instance, defendant claims the prosecutor wrongfully accused defense counsel of knowingly violating a prior in limine ruling; routinely inserted the word "improper" into his speaking objections; and stated that defense counsel "knows" the questions he was asking were objectionable, all of which "unnecessarily [added] a denigrating taint to his legal objections."
In one of the instances highlighted by defendant, Jessica testified on direct examination that she was frightened during her second encounter with defendant because he had his hand in his pocket and she "thought he might have had a knife in there. I have anxiety so I thought that-you know, the worst." On cross-examination, defense counsel asked Jessica if it was true that she "had a history of anxiety." The prosecutor objected, a sidebar was held, and the trial court sustained the objection. Defense counsel then asked Jessica if she had "problems, prior to these events, [of] zoning out?" Jessica responded in the affirmative, but the court sustained the prosecutor's objection and struck the response. Defense counsel then asked Jessica, "Haven't you received a medical diagnosis of bipolar disorder," and the court again sustained the prosecutor's objection, stating, "It is not an area that we have discussed, nor is it relevant, nor is it material at this point in time." The prosecutor then added, "Counsel knows that's an improper question in violation of the Motions in Limine." The court denied defense counsel's request for a sidebar and admonished the jury to disregard the question. Defense counsel continued on, asking "When you went to Saint Luke's on November 11, 2014, you were asked if you were a drug user." The court sustained the prosecutor's objection but denied his request to approach, and the prosecutor remarked, "Then I'm going to make a further objection that Counsel is in violation of the Motions in Limine and knows that's an improper question." The court responded, "Record will so reflect."
We first note that the precise in limine ruling that defense counsel purportedly violated is unclear, as the parties' briefs do not clearly spell out the ruling or cite to the portion of the record containing it. (See Cal. Rules of Court, rule 8.204(a)(1)(C) [briefs must support reference to matters in record by citation to volume and page number]; rule 8.360(a) [with certain inapplicable exceptions, briefs in criminal appeals must comply with rule 8.204]; In re S.C. (2006) 138 Cal.App.4th 396, 406-407 [appellate court is not required to search through record to find matters asserted].) The People suggest the trial court precluded questioning as to Jessica's past drug use and mental health history, but none of the written motions in limine pertained to these subjects. At oral argument, defendant maintained there was no prior ruling that barred such questioning, while the People cited to a portion of the record containing the trial court's order granting a defense motion in limine to exclude certain statements in Jessica's medical records as inadmissible hearsay and legal conclusions. Thus, as far as we can ascertain from the record before us, the prosecutor's objections accusing defense counsel of violating a prior in limine ruling were substantively without merit.
It was only later that the trial court, during a pause in Jessica's testimony, held a sidebar and made a formal ruling denying defense counsel's request to pursue questioning as to Jessica's drug use and mental health.
That said, inasmuch as defendant's claim of misconduct is premised on the denigrating nature of the prosecutor's speaking objections, we conclude the objections, while inappropriate, did not rise to the level of deceptive or reprehensible methods. We do not condone the prosecutor's repeated use of speaking objections, but "[o]bjections constitute misconduct only if they go beyond the charge of legal or procedural violation and directly or by clear inference question the motives or integrity of opposing counsel." (People v. Price (1991) 1 Cal.4th 324, 448 (Price).) Reasonably viewed, the objections- even if substantively without merit for the reasons discussed-did not go beyond the charge of a legal or procedural violation, as the point of the criticism was that defense counsel's questions were precluded by a prior ruling of the court. (See People v. Frye (1998) 18 Cal.4th 894, 978 [finding no misconduct in calling defense counsel "irresponsible" where criticism pointed to lack of evidentiary support for counsel's claim], overruled on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Nor was the prosecutor's use of the word "improper" objectionable, as the focus of the impropriety was on the scope of the questioning, not counsel's motives or integrity. (See People v. Pearson (2013) 56 Cal.4th 393, 432 (Pearson) [calling defense counsel "disingenuous" was not objectionable because focus was on counsel's attempt to elicit hearsay testimony].)
Similarly, it was gratuitous and inappropriate for the prosecutor to add, in several of his objections, that defense counsel "knows" the questions he was asking were improper, all the more so in those instances when the prosecutor offered this unfounded opinion after the trial court had already sustained the prosecutor's objection. But the prosecutor's remarks did not amount to misconduct because the prosecutor did not "directly or by clear inference" question the motives or integrity of defense counsel. (Price, supra, 1 Cal.4th at p. 448.) In this regard, we may not lightly infer that the jury drew damaging implications about defense counsel from these brief, albeit inappropriate, references to defense counsel's state of mind. (Spector, supra, 194 Cal.App.4th at p. 1403.)
b. Vouching and Accusations of Vouching
Defendant raises several challenges that can loosely be described as claims of improper vouching by the prosecutor." 'Improper vouching occurs when the prosecutor either (1) suggests that evidence not available to the jury supports the argument, or (2) invokes his or her personal prestige or depth of experience, or the prestige or reputation of the office, in support of the argument.'" (People v. Rodriguez (2020) 9 Cal.5th 474, 480 (Rodriguez).) "[I]t is misconduct for prosecutors to vouch for the strength of their cases by invoking their personal prestige, reputation, or depth of experience, or the prestige or reputation of their office, in support of it. [Citations.] Specifically, a prosecutor's reference to his or her own experience, comparing a defendant's case negatively to others the prosecutor knows about or has tried, is improper." (People v. Huggins (2006) 38 Cal.4th 175, 206-207.)
Of the many instances cited by defendant as impermissible vouching, we find merit in only one. During closing arguments, the prosecutor told the jury that the offense of kidnapping with intent to rape was proven in this case because defendant was "behaving in a way that we've seen many times" and "has been seen by investigators hundreds and hundreds of times, that occurs all over the world." The People contend the prosecutor was appropriately referencing the evidence adduced at trial, in particular, the expert testimony of Sergeant Flores on human trafficking. However, the prosecutor did not mention Sergeant Flores by name and instead referred to unspecified "investigators" in "hundreds and hundreds of" cases, which was likely to be interpreted as invoking the depth of his office's experiences in other sex offense cases.
Ultimately however, we are satisfied that this single improper remark did not render the trial fundamentally unfair so as to violate federal due process. "[I]mproper comment that 'falls short of rendering the trial fundamentally unfair' is error under state law" and is subject to the Watson standard for prejudice. (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323-1324.) Applying Watson, we find no reasonable probability that the prosecutor's vouching affected the outcome in this case, as the prosecutor's improper remarks clearly pertained to the kidnapping and sex offense counts, and defendant, in the end, escaped convictions for these offenses.
Defendant's remaining claims of improper vouching are unavailing. He contends the prosecutor improperly invoked the prestige of his office by asserting that he alone had the duty "to seek justice." Specifically, the prosecutor argued that defense counsel "is doing his duty for his client. He wanted to talk about lenses that the prosecutor has, that the police have. He wanted to talk about sneaky tactics by myself or the people of the State of California I represent here. I talk about my ethical burden, my job description to seek justice. We can talk about [defense counsel's] ethical duty, his job description to advocate for his client. It's through that lens that I think it's fair for all of us to see the argument you just heard."
We are not persuaded that the prosecutor's remarks impermissibly invoked the prestige of his office or implied that defense counsel had no obligation to the administration of justice. In context, it is clear the remarks were in response to defense counsel's earlier argument that prosecutors and police officers "look at things through prosecutors' and police officer lenses. [¶] To them, the suspect is guilty. Okay? [¶] And you, as jurors, because of the presumption of innocence, you have to turn those lenses around." In other words, the prosecutor was countering defense counsel's suggestions of prosecutorial and law enforcement bias by affirming that his duty was "to seek justice." The prosecutor did not argue or imply that defense counsel was dishonest or unethical. (See People v. Perry (1972) 7 Cal.3d 756, 789-790.)
Defendant next argues the prosecutor committed improper vouching by arguing to the jury that defendant may have hit Jessica with a rock. Defendant contends this argument was not based in the evidence because the prosecution's deadly weapon theory throughout trial was that the object used in the attack was the Apple charger. Again, we find no misconduct. Viewing the prosecutor's argument in context, we observe the prosecutor mentioned use of a rock after asking the jury whether it was "possible" that defendant "used something else" other than the Apple charger. Answering his own question, the prosecutor said, "Possible," but "not reasonable, based upon what we know," then proceeded to say defendant "could . . . have used a rock." In this regard, although Jessica testified that defendant did not hit her with a rock, there was evidence consisting of defense photographs of rocks at the scene of the attack, and other testimony by Jessica that she did not know what defendant used to hit the back of her head and that defendant was carrying a rock as they walked out of the park, causing her to feel scared.
Whether the jury could reasonably infer from such evidence that defendant used a rock to hit Jessica is beside the point. The bottom line is that the prosecutor did not suggest he had knowledge of evidence unavailable to the jury to support his rock theory. (Rodriguez, supra, 9 Cal.5th at p. 480.)
Defendant next points to the following argument by the prosecutor: "There is no evidence that such a serious injury did not occur.... Because the second you see that photo of that tooth, and there is [sic] no witnesses to say the defendant didn't cause that, no evidence in which you can find that that tooth was lost because of a dental hygiene issue, you have no choice if you're reasonably evaluating the evidence, but to find the allegation true." Here, defendant contends the prosecutor impermissibly vouched and misstated the law by arguing to the jury that it had "no choice" but to find the great bodily injury allegation true because Jessica lost a tooth. No basis for relief appears.
Even assuming the prosecutor's argument was erroneous or inappropriate as claimed, there was no prejudice given the jurors' failure to reach agreement on the great bodily injury allegation. Indeed, that the jurors failed to do so undermines the reasonable likelihood that they were led to believe they had "no choice" but to find the allegation true (see People v. Centeno (2014) 60 Cal.4th 659, 667) and instead demonstrates that they understood and followed the court's instruction that they alone must decide the facts of the case based on the evidence presented (see People v. Boyette (2002) 29 Cal.4th 381, 431 (Boyette)).
Next, we turn to defendant's argument that the prosecutor committed misconduct when making objections that accused defense counsel of improper vouching. Strictly speaking, charges of improper vouching typically pertain to the conduct of a prosecutor, not defense counsel (Rodriguez, supra, 9 Cal.5th at p. 480), but we understand the objections in question as accusing defense counsel of asserting facts not in evidence. For the reasons discussed below, we find no misconduct.
Defendant highlights an instance in which defense counsel was addressing DNA exhibits through the testimony of criminalist Sharon Barkwill. Barkwill testified, based on her review of a report by criminalist Erin Dunkley, that there was an "[u]nknown, 34.2" allele at the "D21" locus that could not "reliably be deduced" because "it was unreliable DNA at that low level; therefore, the entire thing is inconclusive." Barkwill further testified that Jessica's two alleles, 33.2 and 34.2, were at that location, but defendant did not have a 34.2 allele at that location in his profile. In arguing that defendant's DNA was not found on Jessica's tailbone, defense counsel stated, "You look at [defendant's] allele. His known allele at that genetic location, he doesn't have the 34.2 allele." The prosecutor objected on the ground that "Counsel is vouching. It's not based on facts in evidence." The trial court told the jury, "Counsel is not permitted to vouch, ladies and gentlemen. Again, I would remind you of your duty with respect to instructions I have given you. You ultimately determine what facts are in this case by way of admitted evidence."
Later, during rebuttal, the prosecutor told the jury that defense counsel "argued many things about what the evidence showed that it didn't. And [defense counsel] said repeatedly, I tell you, I say, I believe, that's vouching. So a lot of what you just heard is [defense counsel] vouching for what the evidence is, what happened that day, what could have happened, et cetera. [¶] If you interpreted my comments as the same, then please refer back to your memory and recollection of what the evidence is. [¶] We're not asking you to speculate or designate [defense counsel] as an expert for the defense. He is not a trained forensic criminalist. Has no background you are aware of in DNA analysis and comparison.... [¶] And you can't take his words or have him vouch for whether these were conclusions or findings of [the witness]. That's vouching. It is not based on the evidence." (Italics added.)
The prosecutor also attempted to address inconsistencies in Jessica's testimony by arguing that defense counsel, "by his own admission in summation several times" did not remember, "[a]nd whether that's sincere or not, it's not his recollection. It is not his credibility even. I don't need to even argue to you that he's so bias [sic] that we don't have to trust his version of what the evidence is because it doesn't matter. He is not allowed to vouch for him."
Defendant further highlights the prosecutor's argument that defense counsel improperly vouched by speculating that the tooth Jessica lost was already weak. Specifically, the prosecutor argued, "And if the argument is, well, no, that's common sense that a person who is homeless has less hygiene, well, you don't know that. Might be an assumption or stereotype, but you need more evidence, either in the form of an expert or actually someone to come in and testify and say that's their condition. So that's one of many ways in which counsel attempted to vouch and testify himself as to what the evidence is or what the potential is."
Having carefully considered the trial record, we are not persuaded that the prosecutor committed misconduct by essentially accusing defense counsel of asserting facts not in evidence. While we are troubled by the prosecutor's repeated accusations that defense counsel was improperly vouching- especially because in some instances, it appears the prosecutor misunderstood the state of the record-we conclude the prosecutor's objections and arguments ultimately pertained to the evidence and did not rise to the level of misconduct. Regarding the 34.2 allele, the gist of the prosecutor's objection was that defense counsel's interpretations of Barkwill's testimony and Dunkley's notes were not evidence, and that the jury was to decide for itself whether defendant's DNA was on Jessica's tailbone. The objection, which resulted in a brief admonition from the trial court to the jury regarding its role as factfinder, was not denigrating to the defense. And as recounted, the prosecutor later advised the jurors that if they interpreted his own comments as evidence, they must refer back to the evidence. The prosecutor's arguments that defense counsel was not an expert or authority on DNA evidence were appropriately directed at defense counsel's arguments and statements, not at him personally.
Likewise, we find no impropriety in the argument that due to defense counsel's "bias," the jury should not "trust his version of what the evidence is." In Winbush, the Supreme Court found no misconduct in even harsher remarks by the prosecutor characterizing defense counsel's arguments as intentionally misleading, noting, "We have upheld prosecutorial arguments suggesting defense counsel's 'job' is to confuse the jury and say anything necessary to obtain a favorable verdict." (Winbush, supra, 2 Cal.5th at p. 484.) Here, the prosecutor's remarks about defense counsel's "bias" in presenting the evidence were less objectionable than the type of arguments upheld in Winbush and were fair comment on defense counsel's arguments and statements.
In short, the prosecutor's sole instance of improper vouching was not prejudicial, and the remaining cited instances did not constitute misconduct.
3. Judicial Misconduct
"' "A criminal defendant has due process rights under both the state and federal Constitutions to be tried by an impartial judge." '" (Nieves, supra, 11 Cal.5th at p. 498.)" '[T]rial judges "should be exceedingly discreet in what they say and do in the presence of a jury"' [citation] and their comments' "must be accurate, temperate, nonargumentative, and scrupulously fair"' [citation].' "Although the trial court has both the duty and the discretion to control the conduct of the trial [citation], the court 'commits misconduct if it persistently makes discourteous and disparaging remarks to defense counsel so as to discredit the defense or create the impression it is allying itself with the prosecution.'" '" (Id. at p. 477.) When the trial judge "intervenes from the bench much more frequently on one side than he does on the other, such criticism may gain credibility among the jury." (Sturm, supra, 37 Cal.4th at p. 1241.)
a. Alleged Uneven Admonishment of Counsel
Defendant claims the trial court unevenly admonished the parties' counsel on their speaking objections and frequently disparaged the defense. For instance, during the defense's cross-examination of Jessica, defense counsel referred her to a transcript of her interview with Sergeant Flores, and the prosecutor objected on the grounds of "improper refreshing recollection, improper impeachment" and then added, "Nor did she say her recollection needs refreshing." The trial court sustained the objections and added, "She's already indicated what she did. And so there is [sic] Rules of Evidence you need to follow." In other cited instances, the trial court added the ground "argumentative" to the prosecutor's objections and admonished defense counsel for making speaking objections.
We are not persuaded that the record shows a clear pattern of uneven conduct by the trial court with regard to speaking objections, as the court often admonished both sides on this score. For instance, after the trial court sustained defense counsel's hearsay objection to the prosecutor's question to Officer Clark, the prosecutor responded, "1240 of the Evidence Code. I think the foundation has been laid for this statement," prompting the trial court to say, "I'll see you at sidebar. No speaking objections, please." In another instance, the prosecutor objected to defense counsel's question, stating, "It's also speculative. When counsel-my quarrel is with the use of the term 'found.'" The court sustained the objection but admonished the prosecutor, "There is only need to say a legal objection. No speaking objections." While it was unnecessary for the court to tell defense counsel that "there is [sic] Rules of Evidence you need to follow," the record suggests comments like this were a matter of the trial judge's" 'personal style, not the result of a belief that any of the attorneys was incompetent or that the defense case lacked merit.'" (Nieves, supra, 11 Cal.5th at p. 483.)
Defendant cites another instance in which defense counsel posed various hypothetical questions to Sergeant Flores. The reporter's transcript reflects that after defense counsel asked one of these questions, the trial court asked, "Is there an objection?" and the prosecutor responded, "Yes." The court told the prosecutor to "[j]ust state the objection," and the prosecutor responded, "Your Honor, at this point-" before the court cut him off and reiterated, "Just, I want to hear the objection. I don't want to hear any speaking objections or any argument. Just simply state your legal objection." The prosecutor then stated, "Argumentative question. And this officer lacks foundation to opine about that." The court sustained the objection, but the prosecutor continued on, saying, "Your Honor, I'm going to make an objection to any questions along this line, which counsel knows the officer has no foundation to opine about, as would be an opportunity for counsel to simply argue the case now." The court overruled this broader objection, stating, "No, that's not true. He's asking a hypothetical of an expert witness that you have asked this Court qualify as an expert witness."
Defendant argues the trial court in this instance "invited" the prosecutor to object to defense counsel's hypothetical question. However, the transcript does not reveal whether the trial judge acted sua sponte or was responding to something he had seen, such as the prosecutor appearing poised to speak. Moreover, the exchange serves as another instance in which the trial court admonished the prosecutor for his own speaking objections, while also rejecting the prosecutor's attempt to broadly cut off hypothetical questioning of Sergeant Flores. Thus, nothing in this incident created the impression that the court was allying itself with the prosecution.
After the above exchange, defense counsel resumed his questioning of Sergeant Flores, adding a new hypothetical detail "that the young lady in question is an almost daily methamphetamine user." The trial court interrupted defense counsel and stated, "by you simply saying, let's just add to the hypothetical, presupposes and presumes that all the other statements that you made are proper. The Court has been sustaining objections and overruling objections. So you have to state the hypothetical in the proper fashion." When defense counsel attempted to restate all of the facts for the hypothetical-including details that the young lady's boyfriend "is big and strong" and the lady was "an almost daily methamphetamine user"-the prosecutor objected that the question was argumentative. The trial court then told defense counsel that "[t]he hypothetical is highly selective in terms of what is being posed. For instance, after the third opportunity he asked the female to get high with him, and subsequently violence erupts. [¶] Well, we know from the testimony that they smoked methamphetamine at 6:00 in the morning. We know from the testimony that this violence occurred approximately between the hours of 1:30 in the afternoon to 2:00 in the afternoon, so there is a passage of approximately seven hours. [¶] Plus . . . there was no evidence that the Court can recall that her boyfriend was big and strong." Defense counsel attempted to correct the court's recitation of the facts, but the court went on to state, "So if you are going to lay out a hypothetical, lay it out specifically that includes all the facts. Otherwise, it's missing salient and relevant facts."
We see no impropriety in the trial court's efforts to control the proceedings by commenting on the form of defense counsel's hypothetical questions. However, the court was not" 'exceedingly discreet'" in its comments before the jury. (Sturm, supra, 37 Cal.4th at p. 1237.) Specifically, the court's remarks drifted beyond just the form of the question and involved making factual recitations that, although couched as part of defense counsel's hypothetical inquiry, were argumentative and could have given the jury the impression that the court was expressing its opinion on the credibility of prior witnesses. Judicial comment "should be 'temperate rather than argumentative'" and the court" 'must not convey to the jury the court's opinion of the witness's credibility.'" (Nieves, supra, 11 Cal.5th at pp. 493494.)
We are satisfied, however, that the trial court cured the impropriety by granting defense counsel's request for a corrective admonition. After the prosecutor completed redirect examination of Sergeant Flores, defense counsel made a motion outside the presence of the jury, arguing that the court's comments about the evidence were "inaccurate" and "prejudicial" to defendant. Defense counsel explained that when the court recounted prior testimony that "they" smoked methamphetamine at 6:00 a.m., "[i]t sounded like you were including [defendant] in that[.]" Defense counsel further argued that "the way you said it seemed to endorse the witness' testimony," and that the court's comment that there was no evidence the boyfriend was not big and strong was belied by Jessica H.'s actual testimony." Defense counsel asked the court to advise the jurors "that they shouldn't be taking your comments about things as comments about the evidence."
The trial court agreed to do so. Once the jury returned to the courtroom, the court issued its clarifying remarks "that the Court was responding to the form of the question as presented in the hypothetical, and it was not the intent of the Court to comment on the evidence or the credibility of witnesses." The court reminded the jury "that no statement, ruling, remark or comment, which I may make during the course of the trial, is intended to indicate any opinion I may have as to how the jury should decide the case, or to influence the jury in its determination of the facts" and that the jurors were triers of fact whose role was to address the credibility of witnesses, "and you're not to be influenced by any comments, remarks or rulings that I may make during the course of the trial." We assume that the jury did as instructed (Boyette, supra, 29 Cal.4th at p. 431), and that the court's detailed admonition, which came shortly after the incident in question, corrected any misconceptions the jury may have formed from the court's earlier remarks.
In another instance cited by defendant, the prosecutor asked Robert M. what he meant when he described Jessica's gait as "staggering." The witness began to explain that he had "seen concussions with people before, and she couldn't walk," prompting defense counsel to interject, "Objection. Come on. This is outside the scope of this witness." The trial court responded, "Counsel, the Court would prefer a legal objection rather than just a colloquial 'come on.' [¶] So the objection is overruled. [¶] [The prosecutor] is attempting to lay the foundation for the witness's ability to testify in the manner he has."
Defendant contends the trial court erred in overruling the objection to a lay witness's medical opinion. To be clear, the issue here is not the propriety of the evidentiary ruling, but instead whether the court's response to defense counsel's objection before the jury was unnecessarily denigrating. (Sturm, supra, 37 Cal.4th at p. 1240.) We think not. Although defendant has a point that Robert M. was perhaps unqualified to suggest that Jessica had a concussion, the trial court did not act improperly in requiring defense counsel to state a formal objection. The court's admonishment appeared even tempered and was directed at the form of the objection, not at defense counsel personally.
Finally, defendant argues that the trial court made multiple erroneous or disparaging speaking objections during defense counsel's closing argument such as "[c]ounsel is not permitted to vouch, ladies and gentleman"; "that's improper argument and you know that"; "Improper argument"; and "[c]ounsel may not misstate or mischaracterize the instructions or the evidence. And that's pursuant to People v. Hill. [¶] And I expect you . . . to stay within the law in terms of oral argument."
We recognize that "the timing of a judge's improper remarks may increase their potential for prejudice, such as comments made during counsel's closing argument." (Nieves, supra, 11 Cal.5th at pp. 499-500.) Here, however, the cited instances reflected that the trial court made brief admonitions as to the form of defense counsel's arguments, consistent with the court's duty and discretion to control the proceedings before it. (Sturm, supra, 37 Cal.4th at pp. 1237-1238.)
In short, after careful review of the examples cited by defendant, we conclude the record does not demonstrate a clear pattern of uneven conduct by the trial court with regard to the parties' speaking objections or in making disparaging comments about defense counsel in front of the jury.
b. Unreasonable Factual Interpretation and Denial of Cross-Examination
Defendant argues the trial court committed judicial misconduct by making a "patently unreasonable" factual interpretation of the evidence to deny him the opportunity to fully cross-examine Sergeant Flores on Jessica's mental health history.
1. Additional Background
As previously observed (ante, fn. 5), during a break in Jessica's trial testimony, the trial court held a reported sidebar in which defense counsel requested permission to explore Jessica's drug use and history of anxiety. The trial court denied the request.
Later, during the cross-examination of Sergeant Flores, defense counsel asked various questions relating to Jessica's credibility. He first asked Flores, "[w]hen you have an important witness to a crime, you want to check and see whether that person's story is consistent, right?" The trial court sustained the prosecutor's objection on the ground of relevance and added, "also argumentative." When defense counsel questioned Flores about the content of his interview with Jessica, the court sustained a hearsay objection and called for a sidebar. Thereafter, the court sustained objections to questions about whether Flores had conducted any investigation on Jessica and held another sidebar. After defense counsel asked Flores, "Did you know that [Jessica] told doctors that she had a history of anxiety attacks," the court told the jury it was taking a break to meet with counsel.
Once the jury had left the courtroom, defense counsel requested that Sergeant Flores be asked to leave as well, but the trial court denied the request, stating "we're not going to be talking about his testimony. [¶] We're going to be talking about your conduct. [¶] And the Court has already admonished you once at sidebar when you asked the questions of the witness previously, and you know better than to ask that question since the Court has already ruled on it. And you continue to violate the Court's orders. And you continue to violate that. [¶] In that sense, your obligation under the State Rules of Professional Conduct to conduct yourself in a manner that is professional, and to abide by the Court's rulings. If you don't like the Court's rulings, then you have remedies available to you by way of taking up a ruling by way of a writ. [¶] But you don't take it upon yourself to continue to ask the questions and disregard the Court's rulings. If you continue in this vein, the Court has, obviously, other avenues available to it with respect to making sure that the Rules of Professional Conduct are abided by counsel and to comport themselves with those rules."
Defendant's suggestion that the trial court kept Sergeant Flores in the courtroom "as an apparent intimidation tactic" appears to be pure speculation on defendant's part.
Defense counsel explained he was not attempting to ask the same questions as before, but was addressing "something that is in the records that the prosecution put in. And it's not redacted out. She told one of the two hospitals that she had a history of anxiety attacks. And that's what I was asking about. [¶] .... I didn't think I was violating the Court's order about a different question and a different foundation for that question."
The prosecutor argued that defense counsel's line of inquiry was still objectionable on the grounds of hearsay and lack of foundation, and that "when Your Honor sustains an objection, and Counsel takes it upon himself . . . to state a fact, . . . that is improper conduct and unethical, and it is an attempt to suggest or argue to the jury what the evidence has shown." Defense counsel responded, "Yeah. That's rich coming from somebody who posed a hypothetical with a foundation that did not exist, accusing me of . . ." before the trial court interjected, "I'm not sure what you're referencing. [¶] Could you speak to the point and not respond by just saying, 'Neener, neener, neener,' and just be specific." Defense counsel then explained his view that whether Flores investigated Jessica's background was "relevant to both his and her credibility." The court reiterated its expectation that defense counsel "follow the Court's rulings" and sustained the prosecutor's objection before indicating that the matter would go into "a little bit longer recess" so that the court could "definitively find out from Madam Reporter" what Jessica said during her testimony.
Returning from recess, and still outside presence of the jury, the trial court stated it had met with the court reporter "with respect to the records of Jessica H. being asked a question with respect to anxiety, and history of anxiety, and . . . zoning out as well. [¶] So with respect to the question of anxiety, on direct examination of Jessica H. by [the prosecutor], the first time anxiety is noted by Madam Reporter is a response by Jessica H. to a question asked by [the prosecutor] in terms of the defendant moving his hand into his pocket." The court acknowledged that "the evidence came in." The court then noted that on cross-examination, defense counsel asked Jessica if she had a history of anxiety, and the prosecutor's objection on relevance grounds was sustained. The court explained that "the difference is she expressed anxiety because of the hand going into the pocket. She didn't say she had a history of anxiety. And [the prosecutor's] reference to People's document, medical record, which is . . . People's Exhibit 17, Saint Luke's Hospital, the very first page - at the bottom of the page, 'Past medical history' is the topic. [¶] And the response is, 'There is no problem listed on file for this patient.' [¶] And then, 'Diagnosis, mental or behavioral problem.' [¶] And there is a line below that indicating 'anxiety attack,' which obviously to the Court's inference is on the events that happened on that date, but not to past history of anxiety. So I wanted to make the record clear on that."
Defense counsel reviewed the copy of People's exhibit 17 (which we note is not in the record on appeal) and stated he "read that as a history of anxiety attacks, not, we're talking about what happened that day." The trial court noted that defense counsel's comment was in the record and summoned the jury back to the courtroom.
2. Analysis
We begin by emphasizing that the above exchange did not occur in the presence of the jury. Thus, the jurors did not hear the trial court's interpretations of Jessica's testimony or People's exhibit 17, its lengthy comments to defense counsel, or its implied threat to sanction counsel for unprofessional conduct.
We also recognize the trial court's rebuke appeared justified under the circumstances due to defense counsel's purported violation of the court's prior ruling denying counsel's request to explore Jessica's substance abuse and mental health history. It is well within a court's discretion" 'to rebuke an attorney, sometimes harshly, when that attorney . . . ignores the court's instructions[.]'" (Nieves, supra, 11 Cal.5th at p. 477.) Even though developments during trial-including Jessica's voluntary statement "I have anxiety"-may have provided cause for seeking reconsideration of the prior ruling (People v. Turner (1990) 50 Cal.3d 668, 708), they were not grounds for defense counsel to ignore the ruling and proceed with questioning about Jessica's anxiety in front of the jury.
While the trial court may have unnecessarily prolonged the exchange, and assuming it was error to do so, we do not believe defendant suffered prejudice from this incident under any standard, as the exchange did not occur in the jury's presence. Moreover, even assuming the trial court had allowed defense counsel to explore Jessica's history of anxiety, the potential evidence was not likely to have a significant impact, as it would have done little to overcome Robert M.'s testimony and the ample medical evidence presented to the jury that defendant physically attacked Jessica. (See People v. Anderson (2001) 25 Cal.4th 543, 608-609 (conc. opn. of Kennard, J.) [mental illnesses that cause hallucinations or delusions are more probative of credibility than conditions causing only depression or anxiety].) Thus, even if the trial court's handling of the incident was lacking in circumspection, it did not constitute prejudicial judicial misconduct.
c. Evidentiary Rulings
Defendant argues the trial court committed misconduct by making numerous unbalanced rulings on evidentiary objections. But the incorrectness of an evidentiary ruling, even on multiple occasions, does not necessarily establish judicial misconduct." 'A trial court's numerous rulings against a party-even when erroneous-do not establish a charge of judicial bias, especially when they are subject to review. [Citations.] [¶] On appeal, we assess whether any judicial misconduct or bias was so prejudicial that it deprived defendant of" 'a fair, as opposed to a perfect, trial.'" '" (Pearson, supra, 56 Cal.4th at p. 447.) Viewing the challenged conduct through this lens, we are unpersuaded that the court's evidentiary rulings constituted judicial misconduct.
During the direct examination of Officer Clark, the prosecutor asked about statements Jessica had made to him in the ambulance, such as whether she told him that defendant strangled her. Defense counsel objected on the ground of hearsay, and the trial court responded, "The Court having considered Evidence Code Sections 1236 and 791, so objection is overruled." Defense counsel then requested an opportunity to "finish stating the grounds" because he had "other grounds," but the court refused, saying, "[w]ell, then we can do it at an appropriate time, but not at this time. The prosecutor later asked Officer Clark, "When the defendant was strangling her, according to Jessica, did he say anything to her?" Defense counsel objected for lack of foundation, hearsay, and under Evidence Code section 352, but the trial court overruled the objections and additionally remarked, "People may admit defendant's statements as an admission under the Evidence Code section [1220]."
Defendant contends that when the trial court did not permit him to state additional grounds for objection, it gave the jury the impression that no grounds would be proper, and that counsel was not sufficiently familiar with the Evidence Code. The latter point is meritless, as the court was simply stating the legal basis for its ruling. As for the court's refusal to allow defense counsel to state additional bases for objection, we acknowledge we can discern no logic behind the court's statement that "we can do it at an appropriate time." However, defendant does not identify what additional grounds he would have stated or how the exclusion of additional testimony on those grounds was so prejudicial that it deprived him of a fair trial. (Pearson, supra, 56 Cal.4th at p. 447.)
Defendant contrasts the above rulings with rulings adverse to him during the cross-examination of Officer Clark. Defense counsel asked Clark, "[Jessica] never told you that [defendant] asked her to get high with him; did she?" The prosecutor objected on hearsay and relevancy grounds, and defense counsel explained that it would be a prior inconsistent statement, but the court said "[t]hat's not true" and sustained the objection. Defendant argues the statement of wanting to "get high" was admissible both as an admission under Evidence Code section 1220 and pursuant to the rule of completeness. But defendant again fails to explain how he was prejudiced by the exclusion of this purported admission. Though defendant maintains that the trial court applied the rules of hearsay inconsistently to favor the prosecution, without more, we cannot say that any contrast between these sets of rulings reflects the court's bias or otherwise deprived defendant of a fair trial. (Pearson, supra, 56 Cal.4th at p. 447.)
In another example, defendant contends the trial court erroneously cut off cross-examination of Officer Clark by sustaining the prosecutor's hearsay objection to the question, "You recall telling her she's missing a tooth, right?" In a subsequent hearing, defense counsel explained that at the preliminary hearing, Clark testified that after he informed Jessica her tooth was missing, "her eyes kind of opened up really wide," and she felt the area of her mouth and "said something to the fact that it's gone or missing, and then she started crying even harder." This was relevant, defense counsel argued, because Jessica had given contradictory testimony that she knew during the attack that her tooth was missing. The trial court sustained the prosecutor's hearsay objection, stating the preliminary transcript passage "does not necessarily reflect exactly what it is that you were intending to point out."
Defendant argues this was another erroneous and uneven evidentiary ruling that excluded nonhearsay impeachment evidence favorable to the defense. We agree the trial court erred in sustaining the hearsay objection, as Jessica's "it's gone" remark was not offered for the truth of the matter asserted, but as part of Officer Clark's description of her reaction to being told the tooth was missing. That said, we cannot agree the error was so prejudicial that it deprived defendant of a fair trial. The description of Jessica's emotional reaction was ambiguous, as she could have been merely recalling that she had suffered this injury. Furthermore, we doubt this effort to impeach Jessica's credibility and memory of the attack would have overcome the ample evidence presented to the jury that defendant physically attacked Jessica. Notably, defendant's identity as the perpetrator was not disputed, and Jessica's description of the attack was consistent with the physical injuries identified by her treating physicians.
Finally, defendant argues the trial court made the following erroneous rulings regarding the kidnapping and sex offense claims: (1) the court prevented the defense from soliciting testimony and presenting photographic evidence that there were less-populated exits from the park than the one defendant chose in order to raise doubts as to his intent to kidnap; (2) the court sustained the prosecutor's relevance objections to defense counsel's questions to Barkwill about a DNA exhibit that showed a tailbone swab containing some alleles at loci which did not correspond to Jessica or defendant; and (3) the court sustained relevance objections to defense counsel's questions to Sergeant Flores that defendant's housing situation was inconsistent with that of a pimp.
Once again, defendant fails to show how he was prejudiced by these purported errors, as he ultimately escaped conviction of kidnapping with intent to rape and the sex offenses.
d. Cumulative Error
Defendant contends the instances of prosecutorial and judicial misconduct discussed above, even if harmless standing alone, were cumulatively prejudicial. (See Nieves, supra, 11 Cal.5th at pp. 499-500 [courts may consider cumulative effect of trial judge's misconduct based on timing, frequency, and substance of improper remarks]; Hill, supra, 17 Cal.4th at p. 844 [prosecutor's "serious, blatant and continuous misconduct" and other legal errors raised strong possibility of cumulative prejudice].)
We have carefully and extensively considered the impact of each purported error in light of the record and applicable case law and found the instances of alleged impropriety by the prosecutor and trial court to be infrequent considering the duration of the trial and, more importantly, ultimately inconsequential. Even if we accept that the trial court made certain erroneous evidentiary rulings, nothing in the record suggests the rulings stemmed from bias or deprived defendant of a fair trial.
Our confidence in the fairness of the trial is buoyed by the conduct of the jury and the result it reached. By all indications, the jury was engaged and attuned to the nuances of the case. Specifically, the jury submitted numerous written questions to the court, requested multiple readbacks of key testimony, and spent considerable time in deliberations. Furthermore, the jury's inability to reach agreement on several of the most serious counts and the great bodily injury allegations suggests it remained attentive and amenable to defense counsel's arguments throughout trial. Thus, however contentious the trial may have been, we cannot conclude there was "an atmosphere of unfairness" that led the jury to conclude or otherwise act on a belief that" 'the trial court found the People's case against [defendant] to be strong and [defendant]'s evidence to be questionable, at best.'" (Sturm, supra, 37 Cal.4th at p. 1243.)
C. Ineffective Assistance of Counsel
Defendant argues that defense counsel rendered ineffective assistance by failing to request a pinpoint instruction that great bodily injury is an element of mayhem.
The full mayhem instruction given to the jury was as follows: "To prove that the defendant is guilty of mayhem, the People must prove that the defendant unlawfully and maliciously: [¶] 1. Removed a part of somebody's body; [¶] OR [¶] 2. Disabled or made useless a part of somebody's body and the disability was more than slight or temporary; [¶] OR [¶] 3. Permanently disfigured someone; [¶] OR [¶] 4. Slit someone's lip. [¶] Someone acts maliciously when he or she intentionally does a wrongful act or when he or she acts with the unlawful intent to annoy or injure someone else. [¶] A disfiguring injury may be permanent even if it can be repaired by medical procedures."
" 'In assessing claims of ineffective assistance of trial counsel, we consider whether counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and whether the defendant suffered prejudice to a reasonable probability, that is, a probability sufficient to undermine confidence in the outcome. [Citations.] A reviewing court will indulge in a presumption that counsel's performance fell within the wide range of professional competence and that counsel's actions and inactions can be explained as a matter of sound trial strategy. Defendant thus bears the burden of establishing constitutionally inadequate assistance of counsel.'" (People v. Gamache (2010) 48 Cal.4th 347, 391; see Strickland v. Washington (1984) 466 U.S. 668, 694.) The reasonableness of counsel's representation must be assessed through the likely perspective of counsel at the time. (People v. Ochoa (1998) 19 Cal.4th 353, 445.)
A defendant has "a heavy burden to establish ineffective assistance on direct appeal." (People v. Garcia (2022) 76 Cal.App.5th 887, 900.) A conviction will be reversed on appeal "only if (1) the record affirmatively discloses counsel had no rational tactical purpose for the challenged act or omission, (2) counsel was asked for a reason and failed to provide one, or (3) there simply could be no satisfactory explanation. All other claims of ineffective assistance are more appropriately resolved in a habeas corpus proceeding." (People v. Mai (2013) 57 Cal.4th 986, 1009 (Mai).) Courts "accord great deference to the tactical decisions of trial counsel in order to avoid 'second-guessing counsel's tactics and chilling vigorous advocacy.'" (In re Fields (1990) 51 Cal.3d 1063, 1069.)
1. Overview of Law on Mayhem
To address defendant's IAC claim, we first discuss the law of mayhem. "Mayhem requires, in very general terms, the intentional infliction of a maiming or disfiguring injury." (People v. Powell (2018) 5 Cal.5th 921, 954.) Section 203, which codifies the offense, "generally prohibits six injurious acts against a person, three that specify a particular body part and three that do not: (1) dismembering or depriving a part of someone's body; (2) disabling or rendering useless a part of someone's body; (3) disfiguring someone; (4) cutting or disabling the tongue; (5) putting out an eye; and (6) slitting the nose, ear or lip." (Santana, supra, 56 Cal.4th at p. 1003.) "[S]ection 203 has remained unchanged since 1874, [but] cases have periodically clarified the statutory requirements for mayhem," for example, requiring a disabling injury to be "more than 'slight and temporary,'" and" 'graft[ing]'" onto the statute a requirement that a disfiguring injury be permanent. (Santana, at p. 1007.)"' "[T]he modern rationale of the crime may be said to be the preservation of the natural completeness and normal appearance of the human face and body[.]" '" (Id. at p. 1004.)
In People v. Pitts (1990) 223 Cal.App.3d 1547 (Pitts), the court held that a sentence for mayhem could not be enhanced for inflicting great bodily injury under section 12022.7 because great bodily injury was already "an element of mayhem." (Pitts, at pp. 1559-1560, citing § 12022.7, subd. (g).) In doing so, Pitts rejected the possibility that mayhem could be committed without inflicting great bodily injury. (Pitts, at p. 1559.) As the court observed," 'from the early common law to modern California law, mayhem has been considered a cruel and savage crime'" and thus," 'not every visible scarring wound can be said to constitute the felony crime of mayhem.'" (Ibid.)
Based on Pitts, CALCRIM No. 801 was revised to include "serious bodily injury" as an element of mayhem. (Santana, supra, 56 Cal.4th at pp. 1007-1008.) In Santana, however, our Supreme Court held this revision was improper, as there was "no basis-compelled either by case law or by the need to give jurors further guidance-to superimpose a wholesale definition of 'serious bodily injury' from section 243(f)(4) in the instruction. By delineating the type of injuries that will suffice for mayhem, the Legislature itself established an injury's requisite level of seriousness in section 203, and when needed, subsequent cases have given further amplification." (Santana, at p. 1010.) In so concluding, Santana determined the phrase "serious bodily injury" from section 243, subdivision (f)(4), was not equivalent to "great bodily injury" as used in Pitts and other case law. (See Santana, at pp. 1008, 1010.) Thus, Santana could not "conclude that the offense of mayhem includes a serious bodily injury requirement simply based on cases holding that mayhem includes a great bodily injury component." (Id. at p. 1009.)
In People v. Turner (2019) 37 Cal.App.5th 882 (Turner), which was decided after the trial proceedings below, the appellate court held that a trial court had no sua sponte duty to instruct the jury that great bodily injury was an element of mayhem. In so concluding, Turner "read Pitts to mean that the injuries specified in section 203 inherently constitute great bodily injury." (Turner, at p. 890.) Turner added that "[n]othing precludes a defendant . . . from requesting a pinpoint instruction clarifying the statutory requirements for mayhem given the specific facts of his or her case. (Turner, at p. 891.)
2. Analysis
The record before us does not affirmatively disclose that defense counsel had no rational tactical reason for not requesting a pinpoint instruction that mayhem requires great bodily injury. Nor does the record disclose that counsel was asked for and failed to provide a reason.
Defendant argues there was no satisfactory reason for defense counsel not to request a pinpoint instruction because he could have researched and applied Pitts and Santana, both of which were available at the time of trial. (See People v. Hussain (2014) 231 Cal.App.4th 261, 271 [reaching IAC claim on direct appeal because there could be no satisfactory explanation for defense counsel not to request pinpoint instruction on core defense].) We are not persuaded, as neither case spoke to the necessity or propriety of a jury instruction on great bodily injury for the crime of mayhem. Santana rejected the inclusion of a "serious bodily injury" requirement in jury instructions for mayhem, and the Supreme Court neither expressly approved of Pitts nor held that great bodily injury is an element of section 203. Indulging the presumption that defense counsel's performance fell within the wide range of reasonable professional assistance, we think counsel could have found-as Turner eventually did-that Pitts simply meant "the injuries in section 203 inherently constitute great bodily injury." (Turner, supra, 37 Cal.App.5th at p. 890.) Thus, counsel could reasonably have believed it was sufficient for him to argue that Jessica did not suffer a type of injury specified in section 203. That the jury eventually came to an ostensibly inconsistent result between its deadlock on the great bodily injury allegation and its unanimous verdict on the mayhem count does not mean defense counsel was necessarily ineffective for believing that the court's instructions adequately defined the elements of mayhem.
While we acknowledge it might have been a good idea to request a pinpoint instruction that mayhem requires great bodily injury, we cannot conclude, based on the current appellate record, that defense counsel's failure to do so fell below an objective standard of reasonableness under prevailing professional norms. Accordingly, defendant's IAC claim cannot be resolved on direct appeal and is more appropriately decided in a habeas corpus proceeding. (See Mai, supra, 57 Cal.4th at p. 1009.)
D. Prison Priors
Defendant contends, and the People agree, that Senate Bill 136, which limits the prior offenses that qualify for a prior prison term enhancement under former section 667.5, subdivision (b), to sexually violent offenses, applies retroactively to this case. (People v. Lopez (2019) 42 Cal.App.5th 337, 340-342 [Senate Bill 136 applies retroactively to cases not yet final on appeal].) We agree that Senate Bill 136 applies retroactively and requires striking the terms for prison priors, as neither of defendant's two prison priors was a sexually violent offense. Accordingly, we will strike the two, one-year prior prison term enhancements imposed under former section 667.5, subdivision (b).
Additionally, Senate Bill 483, effective January 1, 2022, added section 1171.1 to the Penal Code (Stats. 2021, ch. 728, § 3), which declares that enhancements imposed before January 1, 2020, under former section 667.5, subdivision (b), are legally invalid (except under circumstances not applicable here). (§ 1171.1, subd. (a).) Senate Bill 483 extends the modifications brought about by Senate Bill 136 to judgments already final on appeal. (Stats. 2021, ch. 728, § 3.)
E. Resentencing
In December 2021, we granted defendant's motion for leave to file supplemental briefing addressing the effect of Assembly Bill 518 and Senate Bill 567. In supplemental briefing, defendant contends, and the People agree, that defendant should be resentenced under this new legislation.
1. Senate Bill 567
Senate Bill 567, effective January 1, 2022, amended section 1170 to provide, "The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial." (§ 1170, subd. (b)(2).) The parties agree that because Senate Bill 567 is ameliorative and there is no indication the Legislature intended it to apply prospectively only, the new law retroactively applies to defendant pursuant to In re Estrada (1965) 63 Cal.2d 740.
In exercising its discretion to impose the upper terms on counts three, six, and seven, the trial court relied on factors in aggravation that were not admitted by defendant or necessarily found by the jury to be true beyond a reasonable doubt (e.g., the viciousness, callousness, and violence of the offenses and the vulnerability of the victim). Thus, defendant is entitled to resentencing under Senate Bill 567.
2. Assembly Bill 518
Assembly Bill 518, also effective January 1, 2022, and retroactively applicable to defendant (People v. Flores (2022) 73 Cal.App.5th 1032, 1039) amended section 654, which previously required the sentencing court to impose the sentence that" 'provides for the longest potential term of imprisonment' and stay execution of the other term. [Citation.] . . . [S]ection 654 now provides the trial court with discretion to impose and execute the sentence of either term, which could result in the trial court imposing and executing the shorter sentence rather than the longer sentence." (People v. Mani (2022) 74 Cal.App.5th 343, 379.)
Here, the longest possible term of imprisonment at the time of defendant's sentencing was eight years for mayhem. Because Assembly Bill 518 gives the trial court discretion to select a lower sentence as the base term on the remaining convicted counts, defendant is entitled to resentencing.
F. Pitchess Motion
Defendant requests, and the People do not oppose, that we independently review the sealed transcripts of the Pitchess proceedings to determine whether any records were incorrectly withheld.
The documents reviewed by the trial court in the Pitchess proceeding were not initially included in the appellate record in this case. In July 2019 and October 2022, we augmented the record and ordered the trial court clerk to transmit the sealed transcripts and documents from the Pitchess proceedings below. (Cal. Rules of Court, rules 8.155(a), 8.340(c).)
Defendant filed a pre-trial Pitchess motion seeking discovery of the confidential personnel records of Officer Clark, including any and all complaints against Clark for false and/or illegal detentions, fabrication of charges or evidence, dishonesty, neglect of duty or instances of conduct unbecoming a police officer, and racial profiling or bigotry. In attempting to show good cause for the discovery, defendant argued that Clark wrote false statements in the police report of the incident and falsely testified at the preliminary hearing that defendant chased Jessica down the street, tried to take off her pants, told her that he owned her body, and made previous sexual advances on her.
In March 2017, the prosecution and the defense stipulated that the trial court would conduct an in camera review of complaints against Officer Clark only on the category of "Dishonesty/Fabrication." In April 2017, the trial court held an in camera review of records produced by the San Francisco Police Department's custodian of peace officer records. The court signed a Pitchess protective order under Evidence Code section 1045, subdivision (e), granting the motion in part as to one complaint record, and denying it as to seven other records produced by the custodian. The court then placed copies of the records (including a compact disk containing the complaint records, the custodian's declaration, and the Pitchess protective order) in a confidential file and sealed the record.
Evidence Code sections 1043 and 1045, which codified the Supreme Court's decision in Pitchess, allow discovery of certain relevant information in peace officer personnel records on a showing of good cause. (People v. Samuels (2005) 36 Cal.4th 96, 109 (Samuels).) To obtain Pitchess discovery, a defendant must file a motion supported by declarations showing good cause and the materiality of the discovery to the pending case. (Ibid.) The good cause requirement is a" 'relatively low threshold'" for discovery (ibid.), requiring the defendant to articulate a "specific factual scenario" establishing a "plausible factual foundation" for the allegations of police misconduct. (City of Santa Cruz v. Municipal Court (1989) 49 Cal.3d 74, 85, 86.) Once the defense has established good cause, the trial court must conduct an in camera review of the records to determine what, if any, information should be disclosed to the defense (subject to certain statutory exceptions and limitations). (Samuels, at p. 109, citing Evid. Code, § 1045, subd. (b).)
A trial court's ruling on a Pitchess motion is reviewed for an abuse of discretion. (People v. Lewis (2006) 39 Cal.4th 970, 992.) However, even if a court erroneously denies a Pitchess motion, reversal is not required unless the defendant can demonstrate prejudice. (Samuels, supra, 36 Cal.4th at p. 110 [error in denying Pitchess discovery was harmless under Watson].)
In People v. Mooc (2001) 26 Cal.4th 1216, the Supreme Court explained that when a trial court finds a defendant has shown good cause for discovery of peace officer personnel information, the custodian of records "is obligated to bring to the trial court all 'potentially relevant' documents to permit the trial court to examine them for itself." (Id. at pp. 1228-1229.) A custodian need not produce any documents clearly irrelevant to the defendant's Pitchess request; however, if a custodian is uncertain whether a document is relevant, the custodian "should present it to the trial court. Such practice is consistent with the premise of Evidence Code sections 1043 and 1045 that the locus of decisionmaking is to be the trial court, not the prosecution or the custodian of records." (Id. at p. 1229.) Before ruling on the Pitchess motion, the trial court must make a record of what documents it examined to permit future appellate review. (Ibid.) To make the record, the trial court may photocopy the records the custodian produced and place them in a confidential file. (Ibid.) Alternatively, the trial court can make a list of or state for the record the documents it examined. (Ibid.) After examining the documents and questioning the custodian, the trial court should seal the record of the in camera hearing. (Id. at pp. 1229-1230.)
In the instant matter, the sufficiency and scope of defendant's showing of good cause were not in dispute, as the parties stipulated to the trial court's in camera review of complaint records on the sole category of dishonesty/fabrication. Our review of the Pitchess proceedings indicates that the proceedings complied with Mooc, and that the record is adequate to permit appellate review. The custodian of records produced complaint records for Officer Clark. It appears the trial court reviewed these records and found only one complaint record to be relevant: defendant's own September 2016 complaint lodged with the Office of Citizen Complaints for Clark's allegedly false testimony at the November 2015 preliminary hearing. The court denied production of the remaining complaint records before sealing the record of the in camera hearing.
As to the trial court's substantive ruling on the Pitchess motion, we have reviewed the withheld complaint records and conclude the court did not abuse its discretion in denying production. Although one withheld complaint generally alleged inaccuracies in an incident report by Officer Clark, the detailed narrative in the complaint contained no specific allegations that Clark falsified any information or was dishonest in his report. Thus, the court could have reasonably concluded that the complaint, when read as a whole, was not relevant to Clark's honesty.
In any event, any perceived error was harmless under Watson. (Samuels, supra, 36 Cal.4th at p. 110.) Defendant sought Pitchess discovery on Clark to suggest he falsely reported and testified at the preliminary hearing that defendant chased Jessica down the street, tried to take off her pants, told her that he owned her body, and made previous sexual advances on her. Because defendant escaped conviction for the kidnapping and sex offenses, it is not reasonably probable he was prejudiced by the withholding of Pitchess evidence attacking Clark's credibility as it relates to his testimony on these counts. Moreover, even if the withheld Pitchess evidence undermined Clark's credibility more generally, we see no reasonable probability of a more favorable result on the convicted counts given the ample medical evidence presented to the jury that defendant physically attacked Jessica, as well as Robert M.'s account of Jessica's escape from defendant.
Disposition
The judgment is modified to strike the two, one-year prior prison term enhancements. The matter is remanded for resentencing as to the remaining counts. Following resentencing, the trial court is directed to prepare a new abstract of judgment and forward it to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
WE CONCUR: TUCHER, P.J., RODRÍGUEZ, J.