Opinion
E072001
05-20-2020
THE PEOPLE, Plaintiff and Respondent, v. JEREMY BOLTON, Defendant and Appellant.
Robert L. Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Stephanie H. Chow and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIF1803515) OPINION APPEAL from the Superior Court of Riverside County. Eric G. Helgesen, Judge. (Retired judge of the former Tulare Mun. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed in part; reversed in part and remanded with directions. Robert L. Hernandez, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Julie L. Garland, Assistant Attorney General, Melissa Mandel, Stephanie H. Chow and Collette C. Cavalier, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Jeremy Bolton was charged by amended information with inflicting corporal injury on someone with whom he has or had a dating relationship (Pen. Code, § 273.5, count 1), false imprisonment (Pen. Code, § 236, count 2), and possession of heroin for sale (Health & Saf. Code, § 11351, count 3). The information also alleged that he served five prior prison sentences (Pen. Code, § 667.5, subd. (b)) and had one prior strike conviction (Pen. Code, §§ 667, subds. (c) & (e)(1), 1170.12, subd. (e)(1)). A jury found defendant guilty on all counts, and he admitted all the prior conviction allegations. The court sentenced him to the midterm of three years on count 1, doubled pursuant to the strike; one year four months on count 2, stayed pursuant to Penal Code section 654; and two years on count 3. The court imposed one year on two of the prison priors and struck the remaining prison priors, for a total term of 10 years in state prison.
All further statutory references will be to the Penal Code, unless otherwise noted.
On appeal, defendant contends that: (1) the conviction on count 1 must be reversed because the prosecution failed to establish the corpus delecti; and (2) his two prison prior enhancements should be stricken under recently enacted Senate Bill No. 136. The parties agree that the prison prior enhancements should be stricken under Senate Bill No. 136. Therefore, we will remand the matter for resentencing. In all other respects, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
On May 4, 2018, N.F. was in her car, stopped at an intersection, when she saw a woman being choked and dragged by a man. The woman was resisting and telling the man to stop. The man was pulling her hair. N.F. directed her daughter, who was in the backseat, to call 911. Another driver, M.G., was stopped at the same intersection and also saw a man hitting and choking a woman. M.G. was concerned for the woman's safety and called 911.
Officer Zimolzak and Officer Barbula responded to the reported domestic violence call. Officer Zimolzak arrived at the scene and saw two individuals who matched the description given to him by the dispatcher. The man was identified as defendant. At trial, Officer Zimolzak was asked who was with defendant, and he testified, "I believe his girlfriend." When asked why he believed the person was defendant's girlfriend, the officer said, "They were together." He said he separated them and stood next to defendant. The woman (the victim) went with Officer Barbula to be interviewed. Officer Barbula observed that the victim seemed afraid, upset, and shaken. The victim had bite marks and scratches on her neck.
Officer Barbula subsequently interviewed defendant at the police station. The audio recording of the interview was played for the jury at trial, and the jurors were given a transcript, which was submitted into evidence. During the interview, defendant referred to the victim as "my girl." Officer Barbula asked defendant what happened, and defendant said they were "always wrestlin'" when they fought and admitted that he hit her before. He then said, "I never hit her again. I felt bad. I don't hit my girlfriend." Defendant said they had been dating for three or four months. He said they were fighting that day (May 4, 2018) because they both thought they were cheating on the other person, and he wanted to prove he was not cheating on her.
At the close of the prosecution's case, defense counsel made a motion under section 1118.1 to dismiss count 1, arguing that there was a lack of evidence of a dating relationship to satisfy that element of count 1. The prosecutor argued there was an overwhelming amount of evidence for the jury to consider regarding a dating relationship. The court considered the evidence and noted that defendant did not specifically mention he and the victim had a sexual relationship. However, the court believed there was enough language in the evidence to imply a dating relationship from the talk about jealousy and cheating. The court concluded there was enough evidence for the charge to go to the jury and denied the motion.
ANALYSIS
I. The Prosecution Satisfied the Corpus Delecti Rule
Defendant contends his conviction for inflicting corporal injury on a person with whom he had a dating relationship must be reversed because the evidence was insufficient to establish the corpus delecti of the crime. He specifically claims that, other than his out-of-court statements, the evidence did not support a prima facie showing that he and the victim were in a dating relationship. We conclude the prosecution established the corpus delecti.
At the outset, we note the People's argument that defendant has forfeited his corpus delecti claim for failure to raise it at trial. Defendant contends that his section 1118.1 motion for acquittal on count 1 was sufficient to preserve his corpus delecti claim, even though he did not expressly mention "corpus delecti" at trial. Assuming arguendo that defendant's section 1118.1 motion challenging the sufficiency of the evidence on his dating relationship with the victim was sufficient to preserve the corpus delecti challenge, we will address the merits of his claim.
"The corpus delicti rule requires that the corpus delicti of a crime be proved independently from an accused's extrajudicial admissions." (People v. Jennings (1991) 53 Cal.3d 334, 364.) "The corpus delicti consists of two elements: (1) the injury or loss or harm; and (2) a criminal agency causing the harm [Citations]. The term criminal agency relates to acts in violation of law [Citation]. Proof of 'criminal agency' requires evidence from which it might be concluded that the injury or harm resulted from the intentional act of a human being [Citation]. The proof of corpus delicti need not be beyond a reasonable doubt. Quite to the contrary, only a slight prima facie showing is necessary, and such showing may also be established by circumstantial evidence [Citations]. Even more to the point, the cases emphasize that the identity of the perpetrator is not a part of the corpus delicti, and that the prosecutor need not identify the perpetrator or connect the defendant to the crime [Citations]. . . . 'All that need be shown by independent evidence before a confession may be introduced is that a crime has been committed by someone.' " (People v. Ott (1978) 84 Cal.App.3d 118, 130-131 (Ott).) "[O]nce the necessary quantum of independent evidence is present, the defendant's extrajudicial statements may then be considered for their full value to strengthen the case on all issues." (People v. Alvarez (2002) 27 Cal.4th 1161, 1171 (Alvarez).)
Here, the evidence established the corpus delicti of the crime of inflicting corporal injury on someone with whom defendant had a dating relationship, independently of defendant's statements to the officer. There is no disputing that there was evidence of a crime. N.F. testified that she observed a woman being choked and dragged by a man. He was pulling her hair, and the woman was resisting and telling him to stop. M.G. similarly testified that she saw a man hitting and choking a woman. Proof of defendant's dating relationship with the victim was not part of the corpus delecti of the offense because it was not necessary to show injury or harm caused by a criminal agency. (Ott, supra, 84 Cal.App.3d at pp. 130-131.) Even assuming arguendo it was part of the corpus delecti, such relationship could be inferred from the circumstantial evidence adduced at trial. Officer Zimolzak testified that he believed the victim was defendant's girlfriend because they were "together." In any event, the prosecution established the corpus delecti of the crime through the testimonies of N.F. and M.G. It was then free to introduce evidence of defendant's out-of-court statements to strengthen the case. (Alvarez, supra, 27 Cal.4th at p. 1171.) With regard to defendant's relationship with the victim, the prosecution submitted evidence of his statement to the police officer that he and the victim had been dating for three or four months.
We conclude the prosecution satisfied the corpus delecti rule as to count 1. Therefore, no reversal is required.
II. The Prison Priors Should be Stricken Pursuant to Senate Bill No. 136 and the Matter
Remanded for Resentencing
The parties filed supplemental briefs on the applicability of recently enacted Senate Bill No. 136. Senate Bill No. 136 amended section 667.5, subdivision (b), which now limits one-year prior prison term enhancements to convictions for certain sexually violent offenses. (See People v. Lopez (2019) 42 Cal.App.5th 337, 339.) Senate Bill No. 136 became effective on January 1, 2020. (People v. Jennings (2019) 42 Cal.App.5th 664, 667, 681 (Jennings).)
Defendant contends, and the People agree, that his two, one-year terms for his prison priors should be stricken under Senate Bill No. 136. We agree with the parties.
The trial court imposed one-year enhancements for defendant's two prior prison terms. However, neither of his prior prison terms were for sexually violent offenses. We also agree with the parties that Senate Bill No. 136 applies retroactively to defendant's case. Under In re Estrada (1965) 63 Cal.2d 740, unless the Legislature provides otherwise, ameliorative legislation applies retroactively to all judgments that are not final when the legislation goes into effect. Defendant's judgment was not final on January 1, 2020, when Senate Bill No. 136 went into effect. (See People v. Vieira (2005) 35 Cal.4th 264, 306.) Accordingly, he is entitled to have his two, one-year prior prison enhancements stricken under Senate Bill No. 136. (See Jennings, supra, 42 Cal.App.5th at p. 667 [holding Senate Bill No. 136 applies retroactively].)
We note that the trial court did not impose the maximum sentence here. Thus, we remand for resentencing so the trial court may reconsider the entire sentencing scheme when striking the two, one-year priors. (See People v. Burbine (2003) 106 Cal.App.4th 1250, 1258 [Trial courts are generally "afforded discretion by rule and statute to reconsider an entire sentencing structure in multicount cases where a portion of the original verdict and resulting sentence has been vacated by a higher court."]; see Jennings, supra, 42 Cal.App.5th at p. 667 [court remanded for resentencing in part because defendant was entitled to have enhancements stricken under Senate Bill No. 136].)
DISPOSITION
The judgment with respect to the sentence is reversed and the matter remanded. On remand, the trial court shall strike the two, one-year enhancements imposed for defendant's prison priors under Senate Bill No. 136 and resentence defendant. After resentencing him, the trial court is directed to issue an amended abstract of judgment and to forward a copy to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.